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Family Law
Wayne State University Law School
Mahoney, Joan

FAMILY LAW OUTLINE
FALL 2005- MAHONEY

I. Restrictions on who may marry
A. Restrictions
a. Incest
○ Singh v. Singh, Conn 1990, p. 2:
· Facts: Π and Δ were married in 1983. Got annulment because they found out they were niece and uncle. In 1988, they moved to open the judgment because Δ’s mother was Π’s half sister and incest statute didn’t mention half nieces or half uncles. Parties remarried in 1988 in Cali. Motion to set aside annulment because not really related;
· Holding: Affirmed- relationship incestuous. A marriage between persons related to one another as half uncle and half niece is incestuous under our statutory scheme and therefore, void.

○ What is Incest?
· Consanguineous- Of the same lineage or origin; having a common ancestor.
· Affinity- when you marry into a family (step parent)—not a blood relative but someone who has married into the family.
· Why the Taboo?: he taboo is incredibly strong and exists in almost every culture—but the content is different. The taboo is a way of “allowing people to have safe non-sexual relationships with people of the opposite sex” – Margaret Mead.
· Rationale behind Incest laws: The point is to protect young people from inappropriate sexual relationships; don’t want children to be exploited by older people in a sexual way.
· Genetics Based? SOME claim that the prohibition is based on genetics – because if close relatives marry, recessive traits carried in that family are more likely to come out and produce imperfect children. NOT TRUE (1) studies shown that this is not true. Some recessive traits may be harmful but families also carry good recessive traits. genetic testing exists now—not an absolute concern for well-being of children– marrying within culture is as likely to lead to certain traits to come out. (2) the taboo started LONG before we had any idea of genetics
· EARLY ENGLISH LAW: prohibited not only relationships known as a blood tie (consanguinity) but also banned affinity relationships. (e.g. co-god parents can’t get married; couldn’t’ marry someone who had been married with your sibling or someone who had had a sexual relationship with your sibling; couldn’t marry wife’s sister after wife’s death).
à was based on a 7th degree. First cousins were to the 4th degree. Second Cousins were to the 6th degree. PROB for small villages.
à HYPO: legally ½ brother and sister (adopted); genetically not related at all; Didn’t grow up in the same house and didn’t meet until their adult life. —- ILLEGAL probably but emotional taboo not as much.
à Adopted children are legally brother and sister. BUT step brother and sisters are not legally related. DIFF though if people grow up in the same house.
· MEAD- says limits should be on intimacy NOT affinity. If you don’t meet till you are adults, the reason for having a non-sexual relationship doesn’t exist anymore.

○ Back v. Back, SC Iowa, 1910, p. 8: à MAJ approach to Marriage to Step Children.
· Facts: 4 years after he divorced his first wife, William Back married his former step daughter Π/Back. They had 2 children. Held for Π. Reversed-A man may marry his wife’s daughter once he divorces his wife.
· RULE: the relationship of affinity between Π and William that existed when William was married to Π’s mother terminated when William divorced Π’s mother. After that time, Π was NOT the daughter of William so the marriage was valid.
· Presumption is always defined in favor of a marriage. Same thing with children—if the court can find anyway to legitimize children, they will.
· COURT uses clever logic – advanced thinking in 1910—real purpose of the statute was to prevent the step father from fooling around with the step daughter but if no longer the step daughter, then they can marry.

○ Should Incest be Illegal?
· YES—children should feel safe with their parents and not have that relationship be sexualized. Children need to also be protected from exploitation by people with positions of power (elders). Illegal though even if there was no incest statute (because of crim laws against sexual relationships with child under age of consent).
· MAYBE– E.g. Kibbutz- children tend to live together. The children never engaged in sexual relationships with these people—they essentially created their own incest taboo.
· INCEST STATUTES: tend to have 2 statutes- one prohibiting sex and one prohibiting marriage. Biggest diff among states are that some prohibit marrying of first cousins and some don’t (and their rulings on half blood relationships).
b. Polygamy
○ Defined:
· prohibits marriage with more than one person at a time (bigamy—the criminalization of these marriages).
· Few cultures where Polyandry is the norm but many cultures

that criminalized all sexual behavior of a certain kind – sodomy.
· Lawrence v Texas: Court overruled Bowers and said there was a right to engage in sexual activity and therefore rejected the TX sodomy statute. TX statute was challenged on EP grounds–law only criminalized sex acts between same sex persons;
· If gays and lesbians have a right to have sex, do they have a right to get married? à this has been the debate even pre- Bowers.
· HYPO: assume that the USSC decided that after Lawrence, the EPC precludes states from limiting marriage to opposite sex marriage. MICH constitutional amendment in those circumstances —states cannot provide less protection than the USSC provided. States can grant more protection but not less.

○ Jones v. Hallahan, Appeals KY, 1973, p. 25: — NO rt to same sex marriage
· PP & Facts: Π/Jones sought marriage license from Δ/county clerk so she could marry another female. Δ refused to issue license. Π brought suit but TC held that Π was not entitled to the license. HERE: Π appeals. Held: AFFIRMED- hold for Δ. A person does not have the right to marry another person of the opposite sex.
· Marriage=united to person of OPP sex. State law doesn’t prohibit marriage btw persons of same sex, marriage has always been btw MAN and WOMAN.
· Π’s Legal Arguments; 1st amendment free exercise, religion, & rt of association right to marry; 8th amendment cruel and unusual – but that only applies to incarceration;
· Tautology esq argument- marriage is defined in a particular way, therefore you can’t get married. COURT doesn’t answer the challenge and doesn’t make any argument for a state interest—they just say you don’t fit the definition of marriage and therefore you just can’t marry; What the Π’s propose is NOT marriage by definition – bottom line.
· REJECT religion argument on the ground of Reynolds that you could criminalize polygamy