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Family Law
WMU-Cooley Law School
Cunningham, Janice K.

Marriage and Family
·        Common Law Marriage
o       All you need for CL marriage is consent
o       NOT recognized by Michigan
§         Michigan abolished CL Marriage in 1957
o       There are about 10 states where CL marriage still exists.
o       No such thing as CL divorce – only way to get out of a CL marriage is to get a divorce (same as couples married under statute).
o       Majority of states have statutes that govern the laws of marriage.
o       Marriage now requires more than just consent, it now requires a license and lawsuit to undue it.
 
·        CL marriage was replaced by marriages governed by statutes (except in 10 states)
o       CL marriage was replaced by consent plus a contract = a marriage license.
 
·        Elements of a Valid Marriage: MCL 551
o       A marriage is a binding contractual relationship
o       Between a man and a woman
o       That is regulated by law
o       It requires consent of the parties
o       Followed by issuance of a license and
o       Solemnization.
 
o       Breaking down the elements of a valid marriage:
§         (1) Contractual Relationship:
 
§         (2) Between a man and a woman
·        Marriage between same sex = invalid (MCL 551.1)
o       Marriage is a unique relationship between a man and a woman
o       A valid marriage is between a man and a woman – a marriage contracted between individuals of the same sex is invalid in MI.
o       Purpose of rule:
§         To encourage, support, protect, and promote the unique relationship between a man and a woman.
§         To keep the children and welfare of society stable. 
 
·        Note: the law bends over backward to validate a marriage, unless it is a same sex marriage.
 
·        Massachusetts recognizes same sex marriage
o       They have a strong policy of preventing discrimination on the basis of sexual orientation and the law banning same sex marriage has no constitutional adequacy.
 
·        Why does same sex marriage undermine the marriage of your neighbors?
o       This is a question that will have to be answered in the future.
 
 
§         (3) Regulated by Law:
 
·        A man is prohibited from marrying: MCL 551.3
o       His mother, grandmother, sister, daughter, granddaughter

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.  
 
·        Presumption of the validity of marriage RULE:
o       The law presumes the validity of a ceremonial marriage
o       Such a presumption is not conclusive and may be rebutted by showing of facts or circumstances, which either may establish the validity, or invalidity of the marriage by a preponderance of the evidence.
o       It is presumed that a marriage is valid – there are two presumptions:
§         (1) Presumption of the validity of marriage AND the
§         (2) Presumption of the validity of the second marriage.
·        Presumption favoring legality of the later marriage, if it were ceremonial, will prevail over the one, which favors a continuance enforce of a prior marriage
You have to come forward and rebut.