Archie Brown Family Law Summer 2012
Thursday, May 10, 2012
1. Marriage is a legal status based upon a Contract and established by law This status is then regulated by the state.
2. Ways to Prove a valid marriage:
a. Show a valid license
b. Testimony of witnesses who were at the wedding
c. Introduce evidence showing that they are married. (lived as married, etc.)
d. Validity of a Marriage has far-reaching social, legal and economic implications
3. Formal Requirements for Marriage: (CLC)
a. Ceremony or Marriage be solemnized by someone authorized by the state (judge, mayor, religious leaders.)
b. Some states require a blood test.
c. Waiting period (3-5 days)
d. License generally good for 30-180 days.
i. Wait 3 days but NO more than 33 days of ceremony
ii. Typically, statutes require two witnesses for marriage – their names or signatures appear on the marriage certificate.
iii. The marriage certificate must be filled out by the person solemnizing the marriage and sent to the place of recording.
iv. Marriage Certificates are kept as public record.
v. A Physical examination is frequently required as a condition upon obtaining a marriage license – regulated by state statute.
1. The test is usually limited to discovery of venereal disease or condition s like sickle cell. –> this is no longer allowed but encouraged
vi. Failure to record marriage does NOT invalidate the marriage license because all of the statutes bend over backwards to make sure all steps are taken by the people
i. MCLA 551.1 (Marriage Statute)
ii. A man is prohibited from marrying: MCL 551.3
1. His mother, grandmother, sister, daughter, granddaughter, stepmother, grandfather’s wife, son’s wife, grandson’s wife, wife’s mother, wife’s grandmother, wife’s daughter, wife’s granddaughter, brother’s daughter, sister’s daughter, father’s sister, mother’s sister, or cousin of the first degree, or another man.
iii. A woman is prohibited from marrying: MCL 551.4
1. Her father, brother, son, grandson, stepfather, grandmother’s husband, daughter’s husband, granddaughter’s husband, husband’s father, husband’s grandfather, husband’s son, husband’s grandson, brother’s son, sister’s son, father’s brother, mother’s brother, or cousin in the first degree, or another woman.
iv. Issue: is a marriage to one’s niece void in New York where there was a statute voiding such a marriage, even though the marriage was valid in the state in which the marriage took place? NO (In Re May’s Estate)
1. If it is OK to get married where you were married, then your marriage is OK when you move (as long as it was done properly where you came from).
2. It wasn’t OK for a niece to marry her uncle unless they were Jewish – since valid in the forum they were married in it will be recognized in New York.
v. Bigamy is prohibited: MCL 551.5
1. A man or woman cannot remarry until the marriage with their former spouse has been dissolved.
2. Non pro tunc = back dating
i. Now for then – used in reference to a judicial or procedural act that corrects an omission in the record, has effect of an earlier date, or takes place after a deadline has expired.
3. Can’t consent:
i. To bigamy
ii. Under 16
iii. Between 16-18 must have consent of 1 parent or guardian
iv. Idiot, insane, institutionalized
4. Michigan Specific Requirements:
i. 18 can get married w/o consent.
ii. 16 can get married w/ parental consent.
iii. Under 16 need parental consent AND permission of the probate court.
i. No insane person, idiot, or person with syphilis…
5. Void v. Voidable
a. Void – If an impediment creates a void issue, that makes the marriage a legal nullity (never existed).
i. Ex. same sex, polygamy, incest, certain age related issues.
ii. w/ no valid marriage, no alimony, etc.
b. Voidable – was a valid marriage, unless there is a formal annulment after that marriage (fraud, duress, sham marriage, etc.)
i. Mental incapacity makes the marriage voidable, not void. Same thing with physical incapacity.
ii. Fraud makes the marriage voidable.
1. Must be a ‘material fraud,’ and that the fraud affects the essentials of the marriage.
a. Last in Time Presumption – presumption is that the second marriage is the valid one.
i. Burden of proof is on the spouse in the first marriage to show that one was in fact still legal/binding.
ii. Doertech – guy got killed – wife sought compensation through state – she was married to another man and lived with him and disappeared (no divorced) – she then married guy that got killed (valid marriage) – she had CLC
1. Law presumes validity of ceremonial marriage
e property owner argued marital status did not protect unmarried people
1. However the court disagreed because the statute was unambiguous and marital status should be read to include both married couples and unmarried
c. Criminal Problems
i. Lewdly and lasciviously
1. MCL 750.355 – if L/L = misdemeanor
2. People v Davis
i. Not enough evidence to prove that a “trading of wives” constituted lewd and lascivious behavior
3. Means conduct which the speaker considers beyond the bounds of propriety
4. Lewd refers more to actual actions which range from using sexual terms in conversation all the way to extreme groping or nudity.
5. Lasciviousness doesn't actually require action and could simply be the way someone dresses, carries themselves (walking with a wiggle) or looks at another person which could be taken as a sexual invitation. Both words mean roughly the same thing which is displaying sexual feelings with or without words or physical contact.
ii. Parenting time & Cohabitation
1. Muller v Muller
i. Two parents had joint custody and father had GF staying at the house when children were staying there
ii. The court did not rely on the lewd and lascivious statute in its decision but instead made the decision based on the best interest of the minor children
iii. Adultery – if divorced and ex-spouse live together
1. MCL 750.30 – .32
i. It’s possible that policy of sanctity of marriage is violated
2. Guilty of felony – when crime is married woman and unmarried man – man is guilty of adultery and liable for same punishment
3. The sexual intercourse of two person, either of whom is married to a third person
4. Punishment – any person who commits adultery shall be guilty of a felony, when a crime is between a married woman and a man the man shall be guilty of adultery as well
5. Complaint and time – no prosecution for adultery shall be commenced upon complained by husband or wife within one year after offense.
6. What if the person pleads the 5th on this – if he did the complainant can waive prosecution, but just wants the information.