Chapter 1: Marriage and Cohabitation

What are the private attributed of a marriage?

• Love

• Commitment

• Intimacy

• Individual Autonomy

What are the public attributed of a marriage?

• Ceremony

• Marriage certificate

• Holding yourself out to be a couple

• Taxes

• Governmental benefits

Marriage is actually…

A legally transformative act

Define a legally transformative act

This means that the essence of marriage deviated from its original purpose and created something new.

T/F Marriage is a contract

True

Elements of a contract

1. Offer

2. Acceptance

3. Mutual consent:

   • Both parties must consent to the marriage

4. Legal ability:

   • Age, competent, under the influence

5. Consideration:

   • Both parties give something of value

   • Doesn’t have to be monetary

   • Husbands: support Wife

   • Wives: take care of home

   • Marriage also gives rise to a heightened duty in tort law.

What is original marriage laws based on?

English law

What was the early view of women in terms of marriage? Examples?

Subordination women’s view

• Take Husband’s last name

• Lost rights she possessed as a single woman

  • Right to own personal property

• Became legally incompetent

  • Contracts null and void (including wills)

• Lost right to her own labor

What is marital unity?

Husband and Wife merged as one. So the very being of the woman is suspended or at least incorporated and consolidated into the husband.

Under English Common Law, what did the husband gained?

• Wife’s personal property

• Wife’s fruits of her labor

  • Money for any services she rendered

Under English Common Law, what did the wife gained?

• Support

• Protection

• Husband took over debt

• Retained right to REAL property

Under English Common Law, what did the husband lost?

Money

Under English Common Law, what did the wife lost?

• Perpsonal property

• Last name

• Legal status

• Ability to contract

What states still recognized spanish civil law?

Arizona, California, Idaho, Louisiana, Nevada, New Mexican, Texas, Washington and Wisconsin

Difference between community vs common law property?

In a community law, . Husband was given complete authority over the community property, including earnings. So this means that all assets are subject to equal division. Real property, debts, everything.

What act was passed in 1830 that began women’s right?

Married Woman’s Property Acts

Where was teh Married Woman’s Property Acts first enacted at?

In the South. Motivated by economic concerns. Desire to emancipate woman

T/F by 1900s all states recognized that women needed rights over property and wages and they were legally equal to men.

False, women were not legally equal to men at this time

What is the equal protection clause?

14th Amendment

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Prevents states from imposing arbitrary and discriminatory legislative classifcations.

What are the requirments for one’s marriage to be recongized?

• Name, D.O.B., address

• Some states require social security numbers

• Some have a waiting period

• Blood tests

  • last state was Montana

    • 2019

  • NY still requires Black and Latino applicants to take test, but it does not affect ability to marry

    • Testing for Sickle Cell Anemia

  • 34 states required blood test until 1980

What are Kentucky’s requirments to recongized a marriage>

• Both parties present

• No Social Security Number

• Present to the county clerk proof of age

• Cannot be under 17 unless:

  • a court order by a family court or District Court judge that grants the party permission to marry and

  • At least fifteen (15) days have elapsed since the court order was granted.

• No waiting period

• No blood test

• Have to be married within 30 days of marriage license issuance

• Cannot marry second cousin or closer.

T/F Marriage is the only option

False, some states recognized cohabitation

How is marriage created under common law marriage?

Conduct

T/F You do don’t need a formal ceremony under common law marraige?

True

What is needed under common-law marriage?

1. Mutual agreement

2. Cohabitation AND

3. Reputation in the community as husband/wife

Where are common-law marriage attacked?

• Not moral

• Overly relaxed

• Divorce laws leading to social decay and promiscuity

• Treated irregular relationships like true marriages

• Mostly economically dependent wives who were seeking recognition of marriage after death of spouse

• Difficult to prove

What clause allow for marriage to be valid across state line?

Full, faith, and credit clause of the Constituion

• Article IV, Section 1:

  • Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved,

    and the Effect thereof.

What are cohabiting couples?

Two unmarried persons living together in an intimate relationship

Does cohabiting couples apply to same-sex couples too?

Yes

Marvin v. Marvin

• Facts

  • Lee Marvin was a famous actor

    • Cat Ballou (gunslinger). Won academy Award

  • Michelle Marvin was a singer and actress (small time)

  • Lived together for 7 years and broke up.

  • She sued him for support and a share of their accumulated assets

    • Worth more than $3.6 million (wanted $1 million)

  • Oral agreement:

    • she gave up her career and devoted herself to him full-time as a “companion, homemaker, housekeeper, and cook”.

      He agreed to provide for all of her financial support and needs for the rest of her life.

• Court ruled…..

  • No support

  • No contract

  • Received $104,000 in rehabilitative alimony or “palimony”.

• Created a precedent that allowed unmarried people to sue for financial support

  • Ultimately, Court of Appeals of California overturned the judgment

T/F Unmarried couples have legal status and protections in Kentucky and Ohio

False

Who mainly use cohabitation instead of regular marriages?

Older couples who lived together for many years

Personal property

Broadly, all property owned by an individual other than real property; includes both tangible and intangible assets.

Real property

As distinct from personal property, real property refers to land and that which is growing upon or affixed to it.

Contracts

A legally enforceable agreement between two or more parties.

Testamentary Capacity

The legal ability to dispose of one’s property at death through the execution of a will.

Common Law

The law of England as accepted by the colonies prior to the American Revolution; also refers to judge-made law.

Community Property

A system of property ownership between husband and wife in civil law jurisdictions in which each spouse has a vested one-half ownership interest in all marital property regardless of title; excluded is all property classified as separate property.

Married Women’s Property Acts

The series of statutory reforms that gradually improved the legal status of married women, principally through extending rights of property ownership and control that had been denied at common law.

Due Process Clause

A clause found in both the fifth and fourteenth amendments to the U.S. Constitution that protects persons from arbitrary or intrusive governmental actions. The clause provides both procedural protections and substantive rights.

Retroactivity

The application of a court decision backwards in time following the declaration that a statute is unconstitutional.

Incest

Unlawful sexual relations between persons who are closely related to each other; marriages contracted in violation of incest provisions are invalid.

Bigamy

The unlawful act of contracting a second marriage while one or both of the partners is already married to someone else.

Polygamy

The situation where an individual (most commonly a man) has multiple spouses at the same time.

Age of Capacity

The minimum age below which a young person may not marry—commonly set at age 14.

Age of Consent

The age at which a young person becomes eligible to consent to his or her own marriage—usually set at the age of majority.

Common Law Marriage

A marriage created by the conduct of the parties rather than through a formal ceremony. Creation usually requires agreement, cohabitation, and a reputation in the community as husband and wife.