MARRIAGE AND THE LAW OF CONTRACTS
Marriage: legal union of a man
and a woman as husband
and wife
Thoughts on this definition?
Impact of law on marriage:
Minimum age to marry with
and without parental
consent
Responsibility of children
born out of wedlock
Couples living together
outside of marriage
MARRIAGE AND THE LAW OF CONTRACTS
Age and Premarital Relations:
PA Marriage Laws
All states, but Nebraska (19),
require individuals to be 18
to marry without consent
Depending on the state, you
may need
parental/guardian and/or
court permission to marry if
you fall below age 18
Circumstances, i.e. pregnancy,
can also have an impact on
the age at which two
people may marry
Age and Premarital Relations:
Marital Restriction:
Same sex
Relatives: aunts/nephews,
uncles/nieces,
brother/sister
Direct descendants:
father/grandfather to
daughter/granddaughter
Parents my enforce specific
dating rules, but they must
use “reasonable force” or
else it may be deemed
child abuse
MARRIAGE AND THE LAW OF CONTRACTS
Premarital Pregnancy and
Child Birth:
If pregnancy happens
outside of wedlock, both
parents are financially
responsible for the child
Age does not matter in this
instance
No law exists to force
unmarried parents to
marry
Cohabitation:
Cohabitate: a man and a
woman who live together
outside of marriage
This is illegal in 3 states:
Mississippi, Florida,
Michigan
The Lawrence vs. Texas
(2003) ruling has made
it difficult to enforce the
idea of illegal
cohabitation
MARRIAGE AND THE LAW OF CONTRACTS
The Marital Contract:
A binding contract develops at the
engagement
In some states, a lawsuit can happen
if an engagement breaks up
(breach of contract)
Damages would be paid due to:
Actual damages
Humiliation
Hurt feelings
The Marital Contract:
Some states only allow the suit if the
woman is pregnant by her exfiance
Some states allow the suit if a third
party interfered with the
engagement (excluding parents
who try to prevent their children
from marrying)
If marital gifts have been accepted,
recipients may keep the gifts
Women may be required to give the
ring back if she breaks off the
engagement; not the case if the
man breaks off the engagement
MARRIAGE AND THE LAW OF CONTRACTS
The Marital Contract:
Couples may marry by:
Using traditional
state laws
Common law
Civil union
MARRIAGE AND THE LAW OF CONTRACTS
State Requirements:
Each state develops own laws
Must apply for and pay a fee for a
marriage license
Some states may require a blood test
Waiting periods occur between time
applied and when license is
issued
Once issued, any licensed person may
conduct the ceremony
Licensed persons include:
Clergy: rabbis, ministers, priests
Judicial: judges, court clerks
Mayors
Ship captains
MARRIAGE AND THE LAW OF CONTRACTS
Common Law:
Common law marriages: occur
when a single woman and
a single man live together,
share common property,
and hold selves as
husband and wife for a
prolonged period of time
Length of time depends on
state; usually 10 years or
longer (PA was 7)
Most states have eliminated
these types of marriages if
they happen after a
specific date (PA included)
MARRIAGE AND THE LAW OF CONTRACTS
Civil Unions:
Civil Unions:
Civil union: similar to marriage that allows
same-sex partners to have many
rights and benefits similar to marriage
Multiple states have done the opposite and
have allowed same-sex partners
obtain a marriage license
Defense of Marriage Act (DOMA) was
enacted in 1996 in order to bar
federal and state recognition of samesex marriage
Other states have developed domestic
partnerships as an alternate to
marriage
DOMA was defiant against the full faith and
credit clause that allowed common
law marriages to be recognized in
states where the state of formation
deemed it illegal
Caused many states to amend their
constitutions to give a specific
definition that only included one man
and one woman
Domestic partnerships: provide nearly all
state-level spousal rights to unmarried
couples who qualify
Current issue: 9th Circuit Court of Appeals
held that is unconstitutional to deny
federal spousal benefits to the
homosexual partner of a federal
public defender (sex discrimination)
See case
MARRIAGE AND THE LAW OF CONTRACTS
Marital Consortium:
Marriage is seen as a contract
for life
Purposes of marriage:
Procreation
Raising children
Sexual needs
Economic needs
Companionship needs
Marital consortium: the above
are mutual duties of the
husband and wife
Marital Consortium:
If either spouse suffers injury
that prevents fulfillment of
these duties, they can sue
for “loss of consortium”
Most important duties:
Support, nurture, welfare,
education of children
File joint tax return
Faithfulness
Mutual responsibility
MARRIAGE AND THE LAW OF CONTRACTS
Rights and Duties of Parents:
Parent:
Natural father and mother
of individual born of their
valid marriage
Illegitimate child’s natural
mother
Child’s assumed blood
father or mother who has
acknowledged relationship
and meaningful support of
child
Individual(s) who utilize
adoption
Rights and Duties of Parents:
Adoption: allows individuals to
legally assume the rights
and duties of father and/or
mother
You can be stripped of your
parental rights by the
judicial system
The court can then appoint a
new parent although there
is no blood connection,
adoption process, or
previous association with
the child
MARRIAGE AND THE LAW OF CONTRACTS
Parental Rights:
Parents have the right to
choose their child’s
education as long as the
choice follows state
guidelines
Parent may choose to send
their child to a different
school, but may not try to
alter the curriculum of the
current school
Parent may also control how a
child uses their talents,
creativity, and the resulting
income
Parental Rights:
This is so the parents can do
what is best for the child
without government control
In the case of Troxel vs.
Granville (2000), it was
stated that besides in the
issues of abuse or neglect,
parents have total control
as to how they can/will
raise their children
MARRIAGE AND THE LAW OF CONTRACTS
Parental Duties:
Duties are owed to both children and
society due to their status of
parent
Top moral duty: love
Other duties:
Nurture
Guide
Maintain
Discipline
Support financially until
adulthood or emancipated
Parental Duties:
Vicarious liability in tort cases for
acts of children
Examples include:
Acts of vandalism
Involvement in hate crimes
Destruction of public buildings
Negligent supervision: when parents
do not take steps to correct their
child’s unintentional, yet
harmful, behavior, liability for
their actions go to the parent
Anyone who has custody of the child
can be held accountable for this
MARRIAGE AND THE LAW OF CONTRACTS
Parental Duties:
Cannot contribute to the delinquency
of a minor
Incidents include:
Committing a crime in the
presence of a minor
Encouraging illegal behavior of a
minor
Serving of alcohol
Engaging in sexual activity
Involving them with pornographic
material
This is typically a felony with
sentencing ranging 5 to 10 years
MARRIAGE AND THE LAW OF CONTRACTS
Property Rights and Duties:
Property can be in the name of
the husband, wife, or both
Either spouse can buy and sell
property that is in their own
name
This was not always the case;
women were not always
allowed to own property
In order to protect individual
property, a prenuptial
agreement can be
developed before marriage
Property Rights and Duties:
Prenuptial agreement:
document dictates what
will happen to property and
money in the event of the
marriage ending (death,
divorce, cause of divorce,
etc.)
Prenuptial (or premarital)
agreements can include a
wide-range of areas, but
the courts will only enforce
monetary areas
DIVORCE AND THE LAW OF CONTRACTS
Nullifying the Marriage Contract:
Nullifying the Marriage Contract:
Ways to end a marriage:
Examples of fraudulent marriages:
Death
Lying about wealth
Divorce
Condition of pregnancy
Annulment
Freedom from disease
Various legal issues
Willingness to have a child
Annulment: legal procedure for declaring a
voidable marriage be null and void
Voidable marriage: results from a problem that
existed from the beginning of the spousal
union; stays valid until annulment
Void marriage: creates no rights or duties for
either spouse and is considered an invalid
marriage from the beginning
Past marriage
Age
Declaration of nullity: declaration to say that
marriage never happened; often used for
religious purposes or when laws are violated
in the union
Examples of when this is needed:
Want to remarry in the church
Plural marriages
Incestuous relationship
Mental incompetence of individuals involved
DIVORCE AND THE LAW OF CONTRACTS
Nullifying the Marriage Contract:
Bigamist: a person who knowingly
marries a second spouse while
still being married to the first
Bigamy: being married to two people
at the same time (criminal act)
Polygamist: a person who knowingly
marries multiple wives without
ending the first marriages
Polygamy: being married to more
than two people at one time
(crime)
These are often to referred to as
plural marriages
Traditional: one husband with
multiple wives (Sister Wives)
DIVORCE AND THE LAW OF CONTRACTS
Terminating the Marriage Contract:
Divorce: legally ending a marriage
Also known as dissolution
Most popular reason to end a marriage is
through No-Fault
No-Fault has made getting a divorce much
easier
Recognizes the right of one or both spouses
to terminate the marriage by mutual
agreement
Can be initiated by either spouse
Granted after it is shown that no resolution
can be made
Terminating the Marriage Contract:
No list of grievances is needed in No-Fault
Grievances include:
Desertion
Adultery
Cruelty
Drug use
Imprisonment
The term for No-Fault is often irreconcilable
differences
Takes approximately 6 months from filing to
finalization
Some states require mandatory counseling
before granting a divorce
DIVORCE AND THE LAW OF CONTRACTS
Divorce Procedure:
Separation: spouses maintain
separate living quarters (could
be the same house), but their
marital rights and obligations
remain intact
In order to alter the rights and
obligations, the lawyers of each
party must negotiate a
separation agreement
Separation agreement: document
that covers areas such as child
custody, child support, alimony,
property division
Agreement can be the basis for the
final divorce decree
DIVORCE AND THE LAW OF CONTRACTS
Divorce Procedure:
Counseling: may be required to do this before courts accept divorce
Resolution of issues:
Division of Property:
Usually based on English Common Law
What you bring into marriage goes with you
Whatever is earned, inherited, given during marriage also goes with spouse
Equitable distribution: where judge distributes items fairly between each spouse
dependent on:
Income
Length of marriage
Contributions of each spouse
If one spouse was a stay-at-home parent, the value of their position within the marriage is
considered
DIVORCE AND THE LAW OF CONTRACTS
Divorce Procedure:
Child Custody and Support:
Child custody: concerns the division
of the physical care and
responsibilities of the child
Most important: child welfare
May grant joint custody: where both
parents have equal responsibility
in raising the child
Divorce Procedure:
Considerations when determining
custody of a child:
Parents’ wishes
Child’s wishes
Child’s relationship with family
members who may affect the
child’s best interest
Child’s adjustment to home,
school, and community
Physical and mental health of
everyone involved
DIVORCE AND THE LAW OF CONTRACTS
Divorce Procedures:
Non-custodial parent pays child support:
monetary payment by a parent to
provide a dependent child with
appropriate economic maintenance
Cover following expenses:
Housing
Food
Clothing
General Expenses
Parents need to also maintain constant,
positive communication about the child
DIVORCE AND THE LAW OF CONTRACTS
Divorce Procedure:
Divorce Procedure:
Alimony: support paid by one of the marital
partners to the other during
separation and after divorce, as
ordered by the court
Issuance of Decree of Dissolution of
Marriage:
Can be lump sum or regular payments; not
a punishment
Legally binds the terms of the resolution
needed to be considered during the
course of the divorce
Factors when determining alimony:
Income of both spouses
Financial resources
Earnings outlook
Debts
Number of dependents
Number of current/former spouses
Officially declares that the marriage is over