Chapter 12
Contractual Aspects of
Marriage and Divorce
12-1 Marriage and the Law of
Contracts
12-2 Divorce and the Law of
Contracts
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Chapter 12
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Slide 1
12-1 Marriage and the Law of Contracts
GOALS
 Discuss how the law affects premarital
relationships
 Explain how a marriage contract is formed
and legalized
 Name the rights and duties of husbands and
wives
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Slide 2
Premarital Relationships and the Law
Marriage is a legal union of a man and a
woman as husband and wife.
 Age and premarital relationships – Typically,
the minimum age for marriage without
parental permission is 18. No laws restrict
the choice of marital partners with one
exception – close relatives may not marry.
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Slide 3
Premarital Relationships and the Law
 Age and premarital relationships (cont.)
 If parents tell their minor child not to date or not to
see a specific person, they can enforce that order
only with the “reasonable force” that they may
use to see that their other directions are carried
out.
 Parents have no legal means to achieve their ends short of
having their child labeled “incorrigible” in a juvenile
delinquency proceeding.
 Parental use of excessive force may result in charges of
child abuse.
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Slide 4
Premarital Relationships and the Law
 Premarital pregnancy and child birth –
Criminal laws against consensual premarital
sexual intercourse between adults generally
have been eliminated. However, if
pregnancy results, the male (even if he is a
minor) will be required to pay his share of the
female’s medical bills and to contribute to the
child’s support until the child reaches
adulthood.
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Premarital Relationships and the Law
 Cohabitation – A man and woman who live
together outside of marriage are said to
cohabitate. Such living arrangements were
considered illegal in most states until the late
1970s. Cohabitation is still illegal in some
states, although such laws are seldom
eforced.
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Slide 6
Name the aspects of premarital
relationships that are affected by
the law.
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Slide 7
The Marital Contract
If one party in a heterosexual relationship
proposes marriage and the other accepts, a
binding contract results. If both later mutually
agree to end their engagement, the contract is
annulled, that is, the law considers their
agreement void and never to have existed.
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Slide 8
The Marital Contract
 Breach-of-promise lawsuits – If only one
party wants out of the contract and refuses to
perform, a breach-of-promise suit may be
brought by the other party.
 Jilted party used to be awarded high figures to
compensate for actual damages, humiliation, and
hurt feelings that accompanied the breakup.
 Some states allow such suits only if the woman is
pregnant and the ex-fiancé is the father.
 Other states have placed a cap on the award.
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Slide 9
The Marital Contract
 Breach-of-promise lawsuits (cont.)
 If third parties interfere with the engagement, a
few states allow damage suits against the
intruders.
 Such suits cannot be brought against the parents.
 If a gift is given in expectation of marriage (such
as a ring), courts generally order it to be returned.
 Other gifts can be kept by the recipient.
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Slide 10
The Marital Contract
 Legalizing the marital contract
 State statutory requirements – Each state has its
own requirements for marriage.




Appear before town clerk
Apply for and pay a fee for a marriage license
Parental consent not required at age of majority
Some states require a blood test to check for
communicable diseases.
 Often a mandatory waiting period of three days
 Any authorized religious or civil official can perform
ceremony
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Slide 11
The Marital Contract
 Legalizing the marital contract
 Common-law marriages – Pioneers were unable
to follow legal methods for marrying.
Consequently, the law recognized common-law
marriages that occurred when a single woman
and a single man lived together, shared common
property, and held themselves out as husband
and wife for a period of time, usually 10 years.
Today, about ¼ of states allow common-law
marriages; all states must recognize such unions.
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Slide 12
The Marital Contract
 Legalizing the marital contract
 Civil unions – An alternative form of interpersonal
legal union has developed that is similar to
marriage. A civil union typically offers many of
the rights, duties, and benefits as marriage.
Some states use the term same-sex marriage.
However, this is a misnomer because it is open to
opposite-sex couples in many states. Under the
federal Defense of Marriage Act of 1996, states
without civil unions do not have to recognize
them.
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Slide 13
States That Recognize
Common-Law Marriages
 Alabama
 Colorado
 Georgia
(if formed before 1/1/97)
 Idaho
(if formed before 1/1/96)
 Iowa
 Kansas
 Montana
 New Hampshire
(for inheritance purposes only)
 Ohio
(if formed before 10/10/91)
 Oklahoma
(if formed before 11/1/98)
 Pennsylvania
 Rhode Island
 South Carolina
 Texas
(called an “informal relationship”)
 Utah
 Washington, D.C.
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Slide 14
What two actions result in a binding
marital contract?
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Slide 15
Marital Rights and Duties
 Marital consortium – The law recognizes the
purposes of marriage (procreation, raising
children, and filling sexual, economic, and
companionship needs) of husband and wife
and calls these purposes marital consortium.
 If one party cannot fulfill these duties, other party
can sue party who caused harm for damages of
“loss of consortium.”
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Slide 16
Marital Rights and Duties
 Marital consortium (cont.)
 The most important duty of both spouses is to
provide for the support, nurture, welfare, and
education of their children.
 Other obligations jointly entered into, such as
contracts, notes, tax returns, are the mutual
responsibility of the marital partners.
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Slide 17
Marital Rights and Duties
 Parenthood rights and duties – Parents are
obligated to support their children until
adulthood or when a child becomes
emancipated.
 Financial support is a joint obligation but can be
divided according to each spouse’s financial
position.
 Married parents have equal custody rights and an
equal voice in decisions made while raising the
children
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Marital Rights and Duties
 Parenthood rights and duties (cont.)
 The legal process of adoption creates a parentchild relationship. Adoptive parents have the
same rights and duties to the adoptive child as
they would to a child born of their union.
 Adoptions are governed by state law and must be
approved by the court.
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Slide 19
Marital Rights and Duties
 Property rights and duties – Property
acquired during the marriage may be kept in
the name of the husband, wife, or both.
Either marital partner can buy and sell
property of all types in her or his own name
and have sole control of the respective
earnings and credit.
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Slide 20
Marital Rights and Duties
 Property rights and duties (cont.)
 Keeping a spouse from getting rights to property
brought into the marriage can be accomplished
with a prenuptial agreement.
 Marital partner-to-be typically gives up any future claim
they might have to part or all of the other’s property.
 Prenuptial agreements are not limited in their scope and
may cover practically anything.
 The actions of one spouse may incur liability for
the other.
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Slide 21
What is the collection of legal duties
owed by the marital partners to one
another called?
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Slide 22
PREVENT LEGAL DIFFICULTIES
 Use prenuptial agreements to avoid subsequent
conflicts over property ownership and division.
 In the event of divorce, seek legal counsel and
carefully consider and fulfill the obligations, such as
child support and alimony, being assumed.
 If your marriage ends in divorce, make all decisions
relative to your children with their best interest in
mind. Joint custody with cooperating and involved
parents helps the children grow up in a balanced
and healthy environment.
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Slide 23
12-2 Divorce and the Law of Contracts
GOALS
 Discuss the ways by which a marriage
can end
 Explain the divorce procedure
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Slide 24
Nullifying the Marriage Contract
A marriage may end several ways, including the
death of a spouse, annulment, divorce, or a
variety of illegalities.
 Annulment – a legal procedure for declaring
that a voidable marriage is null and void.
 Voidable marriage – A voidable marriage
results from a problem that existed from the
beginning of the supposed union.
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Nullifying the Marriage Contract
 Voidable marriage (cont.) – Such a problem
might involve a refusal to have children or
fraudulent grounds for the marriage contract.
 Fraudulent grounds include either spouse lying to
the other as to wealth, condition of pregnancy,
freedom from disease, willingness to have
children, past marriage, or age.
 Such a marriage may be terminated within a
reasonable time, but it remains valid until the
annulment.
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Nullifying the Marriage Contract
 Void marriage – A void marriage creates no
rights or duties for either party and is
considered invalid from the beginning. A
declaration of nullity must be sought from an
appropriate court to confirm that the
marriage is without effect. Such marriages
typically occur whenever laws are violated by
the matrimonial union.
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Nullifying the Marriage Contract
 Void marriage (cont.)
 If one partner is already married when the second
marriage occurs, the second is a void marriage.
 A person who knowingly marries a second spouse while
still married is a bigamist. Bigamy is a crime.
 A void marriage may stem from an incestuous
relationship or mental incompetence of a party or
parties.
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Slide 28
Name the ways by which a marriage
contract can end.
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Slide 29
Terminating the Marriage Contract
 No-fault divorces – Since 1969, divorce has
been made more available by no-fault
divorce laws. In a no-fault divorce
proceeding, the requesting spouse does not
have to list a grievance. Instead, the court
recognizes the right of either party to
terminate a marriage unilaterally or of both
spouses to end the marriage by mutual
agreement.
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Terminating the Marriage Contract
 No-fault divorces (cont.)
 A no-fault marriage dissolution may be initiated
by either spouse.
 Dissolution is granted after testimony that there is
no chance of repairing the relationship.
 Irreconcilable differences are typically stated as
the legal reason for dissolution.
 The couple usually must wait six months before
the divorce is final.
 Some states require marital counseling.
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Terminating the Marriage Contract
 Divorce procedure
 Separation – Some states require a separation
before divorce. In a separation, the spouses
maintain separate living quarters, but their marital
rights and obligations remain intact. A legal
separation agreement is required to alter these
rights and obligations.
 Counseling – Many jurisdictions require that the
couple undergo marriage counseling before
finalizing their divorce.
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Terminating the Marriage Contract
 Divorce procedure (cont.)
 Resolution of issues
 Division of property – In most states, property brought
into a marriage by a spouse will remain that spouse’s
property should the marriage end. During the marriage,
whatever is earned, inherited, or received as a gift also
remains the property of the spouse who earned or
received it.
 States that do not follow this common-law rule are called
community property states.
 Most states provide some type of equitable distribution of
marital property upon the dissolution of the marriage.
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Terminating the Marriage Contract
 Divorce procedure (cont.)
 Resolution of issues (cont.)
 Child custody and support – The issue of child custody is
concerned with the division of the physical and other care
and control responsibilities for a child. The welfare of the
child is the most important consideration in determining
who will have custody of the child. Under the provisions
of the Uniform Marriage and Divorce Act adopted in most
states, the factors a court must consider in awarding
custody include:
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Terminating the Marriage Contract
 Divorce procedure (cont.)
 Resolution of issues (cont.)
 Child custody and support (cont.)
 Parents’ wishes
 Child’s wishes
 Child’s relationship with parents, siblings, and others who
may affect the child’s best interest
 Child’s adjustment to home, school, and community
 Physical and mental health of all persons concerned
Many divorcing couples are awarded joint custody of their
children where the responsibility for raising the children is
shared.
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Slide 35
Terminating the Marriage Contract
 Divorce procedure (cont.)
 Resolution of issues (cont.)
 Child custody and support (cont.)
 Court usually orders the noncustodial parent to pay child
support to the custodial parent. Child support is the
monetary payment by a parent to provide a dependent child
with appropriate economic maintenance and includes
finances for both needs and wants.
 Alimony is the support paid by the wage earner of the family
to the other spouse. Factors considered by the court are the
paying spouses income, financial resources, earnings
outlook, current debts, number of children, and number of
spouses (former and subsequent).
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Terminating the Marriage Contract
 Divorce procedure (cont.)
 Issuance of decree of dissolution of marriage –
This decree or judgment in the form of a court
order officially declares that the marriage is over.
It makes final and legally binding the terms of the
resolution of the issues that have developed or
needed to be considered in the course of the
divorce.
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Slide 37
Name the steps in the divorce procedure.
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Slide 38
PREVENT LEGAL DIFFICULTIES
 Understand that your actions have consequences and
that your premarital relationships may have long-term
effects.
 Realize that hasty, ill-considered decisions in selecting
a marital partner may become lifelong mistakes. Make
your decisions with the long-term good of both you and
your partner in mind.
 Consider marriage a serious contract between
husband and wife that requires each to fulfill their
duties with mutual concern and respect for each other.
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