I
Law of the family
A Basic definitions
1
Family
What is a “family”? Does the term have the same meaning in the law as its does in
common speech? Does it even have the same meaning in all branches of the law? Does it have
the same meaning in all societies? Within a given society, does it even have the same meaning
at all points of that society’s historical development? Please read the following materials:
________
Claude Levi-Strauss, The Family, in STUDIES IN SOCIAL
& CULTURAL ANTHROPOLOGY 128 (John Middleton ed. 1968)
The word “family” is so plain, the kind of reality to which it refers is so close to
daily experience that one may expect to be confronted in this chapter with a
simple situation. Anthropologists, however, are a strange breed; they like to
make even the “familiar” look mysterious and complicated. As a matter of fact,
the comparative study of the family among many different peoples has given
rise to some of the most bitter arguments in the whole history of
anthropological thought and probably to its more spectacular reversal.
During the second half of the nineteenth century and the beginning of the
twentieth, anthropologists were working under the influence of biological
evolutionism. They were trying to organize their data so that the institutions of
the simpler people would correspond to an early stage of the evolution of
mankind, while our own institutions were related to the more advanced or
developed forms. And since, among ourselves, the family founded on
monogamic marriage was considered as the most praiseworthy and cherished
institution, it was immediately inferred that savage societies – equated for the
purpose with the societies of man at the beginning of its existence – could only
have something of a different type. Therefore, facts were distorted and
misinterpreted; even more, fanciful “early” stages of evolution were invented –
“group marriage” and “promiscuity” – to account for the period when man was
still so barbarous that he could not possibly conceive of the niceties of the
social life it is the privilege of civilized man to enjoy. Every custom different
from our own was carefully selected as a vestige of an older type of social
organization.
This way of approaching the problem became obsolete when the
accumulation of data made obvious the following fact: the kind of family
featured in modern civilization by monogamous marriage, independent
establishment of the young couple, warm relationship between parents and
offspring, etc., while not always easy to recognize behind the complicated
network of strange customs and institutions of savage peoples, is at least
conspicuous among those which seem to have remained on--or returned
to--the simplest cultural level. Tribes like the Andamanese of the Indian Ocean
Andaman Islands, the Fuegians of the southernmost tip of South America, the
Nambikwara of central Brazil, and the Bushmen of South Africa – to quote
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only a few examples – live in small, semi-nomadic bands; they have little or no
political organization and their technological level is very low since, in some of
them at least, there is no knowledge of weaving, potmaking, and even
sometimes hut-building. Thus, the only social structure worth speaking of
among them is the family, mostly monogamous. The observer working in the
field has no trouble identifying the married couples closely associated by
sentimental bonds and economic co-operation as well as by the rearing of
children born from their union.
There are two ways of interpreting this pre-eminence of the family at both
ends of the scale of development of human societies. Some writers have
claimed that the simpler peoples may be considered a remnant of what can be
looked at as a “golden age,” prior to the submission of mankind to the
hardships and perversities of civilization; thus, man would have known in that
early stage the bliss of monogamic family only to forego it later until its more
recent Christian rediscovery. The general trend, however, except for the
so-called Vienna school, has been that more and more anthropologists have
become convinced that familial life is present practically everywhere in human
societies, even in those with sexual and educational customs very remote from
our own. Thus, after they had claimed for about fifty years that the family, as
modern societies know it, could only be a recent development and the
outcome of a slow and long-lasting evolution, anthropologists now lean toward
the opposite conviction, i.e. that the family, consisting of a more or less
durable union, socially approved, of a man, a woman, and their children, is a
universal phenomenon, present in each and every type of society.
These extreme positions, however, suffer equally from oversimplification. It is
well known that, in very rare cases, family bonds cannot be claimed to exist. A
telling example comes from the Nayar, a very large group living on the
Malabar coast of India. In former times, the warlike type of life of the Nayar
then did not allow them to found a family. Marriage was a purely symbolical
ceremony which did not result in a permanent tie between a man and a
woman. As a matter of fact, married women were permitted to have as many
lovers as they wished. Children belonged exclusively to the mother’s line, and
familial as well as land authority was exercised, not by the ephemeral husband
but by the wife’s brothers. Since land was cultivated by an inferior caste,
subservient to the Nayar, a woman’s brothers were as completely free as their
sister's temporary husband or lovers to devote themselves to military activities.
Now, the case of the Nayar has been frequently misunderstood. In the first
place, they cannot be considered as a vestige of a primitive kind of social
organization which could have been very general, in the past, among mankind.
Quite to the contrary: the Nayar exhibit an extremely specialized and elaborate
type of social structure and, from that point of view, they do not prove very
much. On the other hand, there is little doubt that the Nayar represent an
extreme form of a tendency which is far more frequent in human societies than
is generally acknowledged.
There are a large number of human societies which, although they did not go
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quite as far as the Nayar in denying recognition to the family as a social unit,
have nevertheless limited this recognition by their simultaneous admission of
patterns of a different type. For instance, the Masai and the Chagga, both of
them African tribes, did recognize the family as a social unit. However, and for
the same reason as among the Nayar, this was not true for the younger class
of adult men who were dedicated to warlike activities and consequently were
not allowed to marry and found a family. They used to live in regimental
organizations and were permitted, during that period, to have promiscuous
relations with the younger class of adult girls. Thus, among these peoples, the
family did exist side by side with a promiscuous, non-familial type of relation
between the sexes.
For different reasons, the same type of dual pattern prevailed among the
Boréro and several other tribes of central Brazil, the Muria, and other tribes of
India and Assam, et cetera. All the known instances could be arranged in such
a way as to make the Nayar appear only as the more consistent, systematic
and logically extreme case of a situation which may eventually reappear, at
least in embryonic form, in modern society.
This was well shown in the case of Nazi Germany, where a similar cleavage
was beginning to appear in the family unit: on the one hand, the men
dedicated to political and warlike activities, with a great deal of freedom
resulting from their exalted position; and on the other hand, women with their
three-fold functional assignment: Küche, Kirche, Kinder, i.e..kitchen, church
and children. One might very well conceive that, had the same trend been
maintained for several centuries, this clear-cut division of functions between
men and women, together with the accompanying differentiation of their
respective status, could very well have led to a type of social organization
where the family unit would receive as little recognition as among the Nayar.
During recent years anthropologists have taken great pains to show that, even
among people who practice wife-lending, either periodically in religious
ceremonies or on a statutory basis (as where men are permitted to enter into a
kind of institutional friendship entailing wife-lending among members), these
customs should not be interpreted as survivals of “group marriage” since they
exist side by side, and even imply, recognition of the family. It is true enough
that, in order to be allowed to lend one's wife, one should first get one.
However, if we consider the case of some Australian tribes as the Wunambal
of the northwestern part of the continent, a man who would not lend his wife to
her other potential husbands during ceremonies would be considered as “very
greedy,” i.e., trying to keep for himself a privilege intended by the social group
to be shared between numerous persons equally entitled to it. And since that
attitude toward sexual access to a woman existed along with the official
dogma that men have no part in physiological procreation (therefore doubly
denying any kind of bond between the husband and his wife's children), the
family becomes an economic grouping where man brings the products of his
hunt and the woman those of her collecting and gathering. Anthropologists
who claim that this economic unit built up on a 'give and take' principle is a
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proof of the existence of the family even among the lowest savages are
certainly on no sounder basis than those who maintain that such a kind of
family has little else in common than the word used to designate it with the
family as it has been observed elsewhere.
The same relativistic approach is advisable in respect to the polygamous
family. The word polygamy, it should be recalled, refers to polygyny, that is, a
system where a man is entitled to several wives, as well as to polyandry,
which is the complementary system where several husbands share one wife.
Now it is true that in many observed cases, polygamous families are nothing
else than a combination of several monogamous families, although the same
person plays the part of several spouses. For instance, in some tribes of
Bantu Africa, each wife lives in a separate hut with her children, and the only
difference with the monogamous family results from the fact that the same
man plays the part of husband to all his wives. There are other instances,
however, where the situation is not so clear. Among the Tupi-Kawahib of
central Brazil, a chief may marry several women who may be sisters, or even a
mother and her daughters by former marriage; the children are raised together
by the women who do not seem to mind very much whether they nurse their
own children or not; also, the chief willingly lends his wives to his younger
brothers, his court officers, or to visitors. Here we have not only a combination
of polygyny and polyandry, but the mix-up is increased even more by the fact
that the co-wives may be united by close consanguineous ties prior to their
marrying the same man. In a case which this writer witnessed, a mother and
daughter, married to one man, were together taking care of children who were,
at the same time, stepchildren to one woman and, according to case, either
grandchild or stepbrother to the other.
As to polyandry proper, it may sometimes take extreme forms, as among the
Toda where several men, usually brothers, share one wife, the legitimate
father of the children being the one who has performed a special ceremony
and who remains legal father of all the children to be born until another
husband decides to assume the right of fathership by the same process. In
Tibet and Nepal, polyandry seems to be explained by occupational factors of
the same type as those already stated for the Nayar: for men living a
semi-nomadic existence as guides and bearers, polyandry provides a good
chance that there will be, at all times, at least one husband at hand to take
care of the homestead.
If the legal, economic, and sentimental identity of the family can be maintained
even in a polygynous or a polyandrous set-up, it is not sure that the same
would be true when polyandry exists side by side with polygamy. As we have
already seen, this was to some extent the case among the Tupi-Kawahib since
polygynous marriages existed, at least as a chief's privilege, in combination
with an elaborate system of wife-lending to younger brothers, helpers, and
visitors from different tribes. Here one might argue that the bond between a
woman and her legal husband was more different in degree than in kind from
a gamut of other bonds which could be arranged in order of decreasing
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strength: from rightful, semi-permanent lovers to occasional ones. However,
even in that case, the children’s status was defined by the legal marriage, not
by the other types of unions.
We come closer to the so-called “group marriage” when we consider the
modern evolution of the Toda during the nineteenth century. They had
originally a polyandrous system, which was made possible through the custom
of female infanticide. When this was prohibited by the British administration,
thus restoring the natural sex-ratio, the Toda continued to practice polyandry;
but now instead of several brothers sharing one wife, it became possible
for them to marry several. As in the case of the Nayar, the types of
organization which seem remotest to the conjugal family do not occur in the
more savage and archaic societies but in the relatively recent and extremely
sophisticated forms of social development.
Therefore, it becomes apparent why the problem of the family should not be
approached in a dogmatic way. As a matter of fact, this is one of the more
elusive questions in the whole field of social organization. Of the type of
organization which prevailed in the early stages of mankind, we know very
little, since the remnants of man during the Upper Paleolithic Period of about
50,000 years ago consist principally of skeletal fragments and stone
implements which provide only a minimum of information on social customs
and laws. On the other hand, when we consider the wide diversity of human
societies which have been observed since, let us say, Herodotus’ time until
present days, the only thing which can be said is as follows: monogamic,
conjugal family is fairly frequent. Wherever it seems to be superseded by
different types of organizations, this generally happens in very specialized and
sophisticated societies and not, as was previously expected, in the crudest
and simplest types. Moreover, the few instances of non-conjugal family (even
in its polygamous form) establish beyond doubt that the high frequency of the
conjugal type of social grouping does not derive from a universal necessity. It
is at least conceivable that a perfectly stable and durable society could exist
without it. Hence the difficult problem: if there is no natural law making the
family universal, how can we explain why it is found practically everywhere?
In order to try to solve the problem, let us try first to define the family, not by
integrating the numerous factual observations made in different societies nor
even by limiting ourselves to the prevailing situation among us, but by building
up an ideal model of what we have in mind when we use the word family. It
would then seem that this word serves to designate a social group offering at
least three characteristics: ( 1 ) it finds its origin in marriage; (2) it consists in
husband, wife, and children born out of their wedlock, though it can be
conceived that other relatives may find their place close to that nuclear group;
and (3) the family members are united together by a) legal bonds, b)
economic, religious, and other kinds of rights and obligations, c) a precise
network of sexual rights and prohibitions, and a varying and diversified amount
of psychological feelings such as love, affection, respect, awe, etc. . . .
________
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1 Eduardo A. Zannoni, DERECHO CIVIL: DERECHO DE FAMILIA
§§ 1 & 2(2d ed. 1989)
1. The family: social institution. – The family is, above all, a social
institution. In its modern conception, it can be regarded as a regime of social
relations that are determined by means of institutionalized lines relative to
intersexual union, procreation, and kinship.
From the point of view of psychological analysis, the correlation between the
two basic biological events – intersexual union and procreation of children –
gives rise to relations that bind together the members of the family and that
permit one to describe the dynamic organization of the group. Thus, the
transcendent [element] is the conjugal couple, which is essentially constituted
by the interchange, on an exclusive basis, of the sexual life, settling, in
synchronous satisfaction, the integration of the feminine and the masculine.
But later on this conjugal couple is transformed into a parental couple, upon
which its members function as parents, implying the unfolding of the
paternal-maternal roles and functions. Presiding over these relations are the
ideals that are projected from the models and fashions of the rearing of the
members of the couple, in such a way that these ideals are transmitted from
the parents to the children and, furthermore, give cohesion to the familial
group considered more expansively, including the ascendants, brothers, etc.
From an anthropological and sociological point of view, the family embraces
the systems of marriage and kinship that together form the social structure.
But these systems have not been – nor are they – static and immutable; to the
contrary, they demonstrate a constant evolution through their adaptation to the
society as a totality.
It has been pointed out, with justification, that “the family, as an institution, is
anchored in basic biological processes – sexuality and procreation –
constituting the mark of the social organization of these processes.” In turn,
the family is included in a more expansive network of relations – duties and
rights – of kinship, guided by established rules and social lines.” For this
reason, “the family also constitutes a social group of interaction, inasmuch as
it is a co-resident group that cooperates in the daily tasks that are tied to the
maintenance of its members.” Domestic activities – it has also been said –
are part of the more expansive social processes of production, reproduction,
and consumption; as such, they vary according to social class. Domestic
activities, then, cannot be analyzed independently of the socio-economic
relations of the societies in which they are implanted.
Primarily, to the family are accorded certain functions that are narrowly tied to
biological and social functions, functions – such as the generation and rearing
of children or familial co-participation – that frequently appear to be colored
with strong justifications that are ethical or moral, if not religious. It should be
pointed out that familial relations are determined by necessities derived from
the socialization of its members by larger systems, in such a fashion that,
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today, it is agreed that the nuclear family – that which is constituted by the
husband, the wife, and their children – carries out the primary socialization of
its members. Traditionally, the family has availed itself of the rules of
inheritance, rules that, in their turn, are a function of the economic and
productive structure of the society. This economic and productive structure
has determined the institutionalization of the specific lines within the family’s
scope in such a way that, upon the transformation of this structure, these lines
have had to be transformed to contain the change. It suffices, for an
example, to juxtapose the “trunk” or patriarchal family, which was proper to
pre-capitalist feudal societies, against the conjugal or nuclear family that
industrial society has determined. In the transition between one and the
other, many rules of co-residency and of authority within [the family] have
mutated, as has the morality of domestic relations and its rites, of familial
functions, and of relations between the spouses and between parents anc
children. The mutation has provoked, of necessity, a “crisis,” but it has also
established the new ethical and ideological contents that the socialization of
man requires from the family, so as to guaranty the tendency to the
conservation of the structural unity of the social system.
§ 2. Sociological concept and juridical concept. – It is clear that the proposed
sociological definition [of the family], though it indeed aspires to note the
structure of a determine category of recognized and, therefore, institutional
social relations, need not necessarily coincide with the definition that responds
to a strictly juridical concept of the family.
Sociology, in fact, upon recognizing in the family a regime of institutionalized
social relations, makes or can make sometimes a descriptive investigation
(descriptive sociology), sometimes an analytical investigation (analytical
sociology), of the behavior of the members of the family, configured
typologically. But a descriptive sociology, as much as an analytical one,
notes, we can say, the mode of being of the social forms of life on the basis of
a purely empirical analysis [i.e., an analysis that merely tells us what “is” as
opposed to what “ought to be”].
Meanwhile, the law constitutes an expression of a conjunction of
ethical-political presuppositions that mediate the normative consecration of
determinate relations through judgments of value. Juridical relations are not,
then, a mere pouring out of empirical reality. The law [not empirical social
reality] comes to represent, therefore, the source of bonds that we qualify as
juridical, bonds that may or may not correspond with the descriptive or
analytical analysis of the social behavior that the sociologist notes empirically.
Díez Picazo has pointed out that the law does not in any case regulate the
totality of the aspects of the familial institution, nor the totality of the
vicissitudes that can pierce through the relations between different members
of a family. There are, in fact, behaviors based in custom, in traditions, etc.,
that constitute an expression of familial relations, even when these do not
spread to the law. On the other side, the behavior of members of the family is
determined, generally, by a social spontaneity . . . that does not [necessarily]
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obey the conscience that juridical duties imply, but obeys much more the
dominant ethical and moral, including religious, conceptions. In its turn, the
law recognizes this reality by endowing it with juridicity when the requirements
of the social context make it necessary.
[The author then offers an example to illustrate his point about the possible
“disconnect” between the family as it is envisioned by the law and the family
as it is reflected in sociological reality: though Argentine law, committed to the
notion that marriage is “indissoluble,” does not permit divorce, sociological
studies show that the great majority of Argentines accept divorce and do not
“think badly” of those who have undergone it (something that can happen only
if the couple leaves Argentina temporarily to obtain a divorce and then
returns).]
A juridical definition of the family, then, requires one to confront the relations
that are approved by the law in reference to the conjunction of persons bound
together on the basis of intersexual union and procreation. Thus, the family is
the conjunction of persons between whom exist interdependent and reciprocal
juridical bonds that have emerge from intersexual union, procreation, and
kinship. There where no juridical [i.e., legally recognized] bond no familial
relation can ever exist, even though this implies [the possibility of] a
disconcordance [of the law] with the biological bond . . . .
________
Alain Bénabent, DROIT CIVIL: LA FAMILLE nos 1-4, at 1-2 (10th ed. 2001)
1. – Definition. – The family, a notion whose content everyone intuitively
knows, is traditionally defined in the law as a group of persons who are tied to
each other by lines founded on marriage and filiation. Simple affection, even
when the persons live together, does not suffice: despite concubinage being at
present so widespread, one does not speak of a true family until there’s a line
created by an enfant – a line of filiation.
But even here one sees a new question arise today, one brought on by recent
[legal] revolutions: is the line created by the “PACS”1 a natural familial line? It
is not a question of terminology only, for certain juridical consequences are in
play (for example, the protection of “familial life” that is assured by the
European Convention on Human Rights). Here, one encounters directly the
depth of the mutation [now] in progress that characterize the topic: the
contours and the very notion of “family” are from now on fluid.
The family is [at once] a sociological, economic, and juridical reality.
2. – Sociological aspect. – From the sociological point of view, the unity that
1
PACS is an acronym for pacte de civil solidarité, literally, “pact of civil solidarity.” The
reference is to a new institution of French civil law, introduced into the Code civil in the year 2000,
whereby “concubines” – be they heterosexual or homosexual – can create between themselves a “union”
that is entitled to some measure of legal recognition and legal protection.
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forms the family is encountered in all societies. Even if, in the course of the
evolution of societies, this group has become less structured, the intensity of
the line remains.
Grouping into tribes or int families is a constant
phenomenon in all primitive societies. When societies evolve, and as state
authority intervenes to take charge of individual security, in such a fashion that
the “self-defense” facilitated by the grouping is less necessary, a
“dissemination” of the familial group is promoted. The line nonetheless
remains very strong, even if it is expressed in a different manner. And even
in evolved societies, such as our modern Western society, the importance of
the family in social life remains considerable.
3. – Economic aspect. – From the economic point of view, the family
constitutes as well an important cell. It is, in fact, constitutive of a “unit of
production.” What an isolated individual can do [only] with difficulty the family
group can do in a much more efficacious manner. But here also, this truth,
which is incontestably of the greatest importance in primitive societies, tends
to be weakened in evolved societies. It is, however, necessary to recognize
that it has disappeared totally. Even in our current society, the economic unit
that the family represents as a cell of production is far from negligible. No
doubt it is of less importance when one finds oneself in the presence of
salaried professionals who are still exercising their profession. But once
retirement comes, just as is true when [the supporting family members] have a
commercial, artistic, liberal or above all agricultural occupation, mutual familial
aid remains an sociological fact of the first importance. The collaboration of
the spouse in particular, but likewise sometimes of the children and [other]
descendants, is a constant fact. It is necessary to add to this, in all social
groups, the “in kind” aids that are lavished [upon family members] (lodging or
education for children, leisure pursuits, etc.) and that constitute so many
“services” that are economically appreciable. Periods of economic difficulty
cause the importance of this phenomenon to surge up again on a regular
basis.
4. – Juridical aspect. – Finally, from the juridical point of view, the existence of
the family is universally recognized and produces many effects. However, the
recognition of the familial group has not gone so far as to confer “juridical
personality” on it. Although the relations at the heart of this group, notably on
the patrimonial plane, form the object of very detailed regulations and although
the family is, from many points of view, treated as if it were an entity (for
example, from the point of view of taxation or that of social [security]), our law
does not go so far as to recognize it as an autonomous juridical person. . . .
The principal obstacle [to such a recognition] is the excessively changing
composition of the family. . . .
________
1 Guillermo A. Borda, TRATADO DE DERECHO CIVIL: FAMILIA
no 6, at 15-17(8th ed. 1989)
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Crisis of the family. – We are witnessing a profound crisis of the family. The
breaking of familial discipline, the relaxation of customs, the augmentation of
divorces, the lack of interest in [having] children, signal the fundamental
aspects of this phenomenon of world repercussion.
The causes that have concurred in unleashing it are many. Before all else,
there are economic causes. Not that many years ago, the familial economy
was founded on revenues produced by the “chief” [jefe, i.e., the husband],
while the wife took care of the home. Today, on the other hand, the family is
supported, save in the affluent classes, not only by the salary of the father, but
also by the receipts of the wife and even of the minor children. Life in
common tends to disappear. The father, the mother, and the children
perhaps unite together at dinner time and presently return to their occupations
or their diversions outside of the house. The acute problem of housing
contributes to this state of things: the closeness of the apartments or
habitations wherein numerous persons live jumbled up together creates a
sensation of disgust for the familial ambiance, which impels [people] to live
outside of it.
No less important are the spiritual and political factors. There is an
undeniable decline of religious convictions; ours is a generation of
pleasure-seekers, who wash their hands of their duties; gone is that tolerance
that makes living together easy and light. The wife, who has had to go out
into the streets to complete the revenues of the household, has attained legal
parity with the man. Her elevation in the cultural, economic, and political plain
makes her disdain domestic tasks. . . . [A]t the same time, [the family] has lost
the sense of its household responsibilities and its spirit of sacrifice, which was
one of its most noble attributes and is that which permits it to attain full
spiritual peace. With this, familial discipline has suffered a rude breakdown:
divorces proliferate.
Moreover, the rapid evolution of customs and ideas has provoked a
disconnect between parents and children, which corrodes familial harmony.
Children look outside of the house for the understanding that they do not
encounter within it.
Finally, in many countries state intervention has been an upsetting factor.
This state of things has preoccupied not only sociologists and moralists, but
also legislators. More numerous each day are laws that concern themselves
with the family and that seek to defend it and to fortify it. The protection of
the legitimate family, the familial salary, the creation of family well-being, the
protection of paternity, the laws of social security, those that repress the
abandonment of the family, are [all] directed to producing this end.
________
DROIT DE LA FAMILLE no 9, at 9-10
(Jacqueline Rubellin-Devichi dir., ed. 1999)
Typology. – Today family law is strongly marked by the ideas of liberty,
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equality, and solidarity, which results in the co-existence in current society of
different models of the family.
The legitimate family. – It rests on marriage. It is no longer the model of
reference, save for a minority, because its “benchmark image” has been
considerably weakened by the fact of the frequency of divorces, on the one
hand, and the equality of the condition of children [i.e., the elimination of
discrimination against illegitimates], on the other. The patrimonial law of the
family and tax law, however, reveal that the situation of couples is still quite
privileged if they are couples “in marriage.”
The natural family. – It rests, in reality, on the line of filiation that unites a child
to one of his parents or to the two of them and that [under current law] . . .
permits the child to be a part of [their families].2 In principle, concubines are
not tied to each other, except by virtue of their children. But the law of today
nonetheless recognizes the existence of a true family grounded in
concubinage [for limited purposes:] with respect to [I] the joint exercise of
parental authority over the child3 and [ii] medically assisted procreation.4 And
a very strong majority of the children who are born outside of marriage are
“acknowledged,” even before their births, by their two parents.
The adulterous family. – That one of the parents – or both of them – was
married to someone else change nothing: it is only by an abuse of language
that one speaks of the “adulterous family” . . . .
The family created thanks to medically assisted procreation. – The distinction
between families in which the children are born from sexual relations between
their parents and those in which the children are born thanks to artificial
insemination or to a gift of an ovum or an embryo has no foundation. The
[principle of] equality between children is oppose to every discrimination: the
child born thanks to medically assisted procreation is either legitimate, if it is
born into the bosom of a married couple, or natural, if it is born into the bosom
of a couple of concubines. . . .
The adoptive family. – The only type [of family] that is opposed to the
legitimate family and to the natural family as to its mode of constitution, such is
the family founded on adoption. Certainly, the adopted child will be regarded
from the point of view of rights and duties as a legitimate family (or [at least]
2
Until very recently, the French Civil Code provided that a “natural child” (i.e., an illegitimate)
“has no family.” Though our code still contains such a provision, see CC art. 238, cl. 1, its
constitutionality is questionable.
3
Louisiana has not yet gone this far. Technically speaking, an illegitimate child is not subject to
“parental authority,” properly so called. See CC art. 238, cl. 2. He is, instead, subjected to “tutorship,”
normally one administered by his mother. See CC art. 256.
4
Louisiana hasn’t gone this far either. Insofar as resort to assisted conception is concerned, our
law makes provision for and accords legal protection to only married persons. See La. Rev. Stat. 9:121
et seq.
-11-
nearly legitimate, when it’s a case of “simple” [as opposed to full] adoption) but
the problems relative to adoption are altogether unique. Adoptive filiation is a
filiation of election: the adoptive family rests on lines of the heart . . . .
Single-parent families. – Families in which one of the parents raises the child
form a category that is well known to social security law, which has created
specific allocations to aid the isolated parent so as to compensate for the
absence of the other. [But] it is not a category of the civil law, which, from this
point of view, recognizes only the distinction between the bilateral family (the
child has or had two parents) and the unilateral family, in which a line is
established with the father or, most often, the mother. [In the latter case,] the
child has a parent and grandparents only in a single line – be it paternal or
maternal – , something that produces certain consequences in the civil law . . .
. It is rather common that the single-parent family is in a transitory situations
and endures only until such time as the isolate parent marries or remarries:
that is why competent sociologists rightly prefer to speak of “sequences of
monoparentality.”
Families (wrongly) called “recomposed.” – It is the sociologists who have
adopted this expression, together with that of “familial recomposition,” in order
to designate the hypothetical cases, which are more and more numerous, in
which two parents, after having separated, each found on his or her side a
new household, one in which children “common” [to that spouse and his / her
new partner] are born or in which one finds, be it habitually or episodically,
children of one or the other member of the first couple. The terminology
deserves strong criticism, for it covers over the sentiments of the child vis-a-vis
the parent with whom he does not live: “a child has two parents, not one more,
not one less,” according to the cute formula of Dean Cornu. It would be
better, in our opinion, to speak of “second families,” an expression that has the
advantage of taking account of an eventual dislocation of the recomposed
family and, especially, of neither hiding the other parent nor the grandparents
of the child nor the rest of his true family, that is to say, his family of origin,
which persists even if it is disagregated.
________
2
Familial relation
What is a “familial relation,” legally speaking?
What kinds of “familial relations” does our law recognize? Read CC arts. 86, 88, 90, 131,
141, 178-180, 184, 214, 216, 227, 263, 888, 891, 895, 896, and 1483; then read the following
note:
__________
NOTE
I. “Modes” of familial relations
Modern civil law, like classical Roman law before it, recognizes three different
modes of familial relations, that is, means whereby persons may be “relatives”
of each other. They are “consanguinity,” “adoption,” and “affinity.”
-12-
The term
consanquinity,
as its etymology suggests,5 denotes a
relationship by blood or, if one prefers a more modern and scientifically
accurate formulation, a bio-genetic relationship. Richard Wm. League,
ROMAN PRIVATE LAW 106 (A.M. Pritchard rev., 3d ed. 1961); Lorenzo F.
Miravitev, HANDBOOK FOR ROMAN LAW 81 (1970). Thus, two persons are
consanguinous relatives if and only if one is among the biological progeny of
the other or both are the biological progeny of a common ancestor.
“Adoptive relations,” obviously enough, are those established by means of the
institution of “adoption.” See Max Kaser, Roman Private Law § 58, at 43 (Rolf
Dannenbriig tr., 2d ed. 1968); Lorenzo F. Miravitev, HANDBOOK FOR ROMAN LAW
81 (1970). Adoption is a juridical act whereby one person, called the parent,
creat[es] a line of filiation that is exclusively of voluntary origin between
himself or herself and another person, called the child, with whom the parent
need not have any (and normally has no) consanguinous relation.
VOCABULARIE JURIDIQUE 30 (Gérard Cornu éd., 1987) ( Adoption no 1).
The term affinity denotes a relationship that arises thanks to marriage.
Max Kaser, Roman Private Law § 58, at 43 (Rolf Dannenbriig tr., 2d ed. 1968);
Lorenzo F. Miravitev, HANDBOOK FOR ROMAN LAW 81 (1970). This relationship
exists between each spouse and the [blood / adoptive] relatives of the other;
the young lady who marries becomes the daughter by marriage of the father
and mother of her husband, the sister of his brothers and sisters, the niece of
his uncles and aunts, etc.; reciprocally, hers become his father, mother,
brothers, sisters, aunts, and uncles by marriage. 1 Marcel Planiol & Georges
Ripert, TRAITÉ ELÉMENTAIRE DE DROIT CIVIL pt. 1, no 652, at 392 (12th éd. 1939;
La. St. L. Inst. tr. 1959).
ii. Licitness of familial relations
Familial relations vary in terms of their conformity to public mortality: those that
are conformed to public morality are called “legitimate”; those that are not,
“illegitimate.” “The relation between two relatives is legitimate [only] if such
are all the births on which it [the relation] is founded,” 1-2 Arthur von Tuhr,
DERECHO CIVIL: TEORIA GENERAL DE DERECHO CIVIL ALLEMAN § 29.II, at 89 (Tito
Rav tr. [from German to Spanish]1946), in other words, only if both of these
relatives are themselves legitimate and if each of the persons through whom
they are related is / was legitimate. A person is legitimate only if (i) he was
born or at least conceived during the marriage of his parents (legitimus ab
initio), see CC art. 179, cl. 1, or (ii) though he was neither born nor conceived
during the marriage of his parents, he was in some way “legitimated” by them
following his birth (legitimus post initium), see CC arts. 179, cl. 2; 181; 198; &
200.
iii. “Lines” of familial relations
Familial relations, be they consanguinous, adoptive, or affinitive, can be
analyzed into various “lines.” These lines can be classified in several
different ways.
5
Latin: consanguineus < con- (< cum-) [together with] + -sanguis- [blood] + -eus [formed from].
-13-
α. Direct v. collateral
One can, first of all, divide up familial relations into those of the direct line
and those of the collateral line. See Alain Bénabent, DROIT CIVIL: LA FAMILLE
nos 7 & 8, at 2-5 (10th ed. 2001). The direct line is that series of relatives
who, as among each other, are progenitors and progeny, that is, grandparents,
parents, children, grandchildren, etc. Each person in this direct line is, at
once, the ascendant of those below him (his descendants) and the
descendant of those above him (his ascendants). The collateral line is
that series of relatives who, though not progenitors and progeny of each other,
are the progeny of a common progenitor. Examples include (i) aunt / uncle
and niece / nephew and (ii) cousins. Two collateral relatives are thus not in
the same [direct] line; they form part of two different [direct] lines that started
from the common ancestor, who represents the point where the junction is
made; the two lines travel side by side, which fact explains the word
'collateral' . . .
1 Marcel Planiol & Georges Ripert, TRAITÉ ELÉMENTAIRE DE
DROIT CIVIL pt. 1, no 644, at 388 (12th éd. 1939; La. St. L. Inst. tr. 1959).
β. Paternal v. maternal
Familial relationships can also be divided into those of the paternal and
maternal lines. The paternal line consists of all those persons to whom
one is related through one's father, e.g., one's paternal grandparents, paternal
aunts and uncles, paternal cousins; the maternal line, all those persons to
whom one is related through one's mother, e.g., one's maternal grandparents,
maternal aunts and uncles, maternal cousins.
iv. “Propinquity” (proximity) of familial relations: of “degrees” of relationship
Familial relations, be they consanguinous, adoptive, or affinitive, admit of
various “degrees,” that is, some relatives are “closer” than others. This
degree of familial proximity our Civil Code calls “propinquity.” According to CC
art. 900, “propinquity . . . is established by the number of generations
between the two persons, and each generation is called a degree. How
these generations are to be counted varies from one kind of line to the other.
In the direct line, the number of degrees is equal to the number of
generations between the two relatives. CC art. 901. To count the degrees
between any two persons in the direct line, one simply starts with one of them
(the ascendant or the descendant), counting him as “zero,” and then counts by
“ones” up or down the direct line by successive generations to the other one.
Thus, parent and child are related in the first degree and grandparent and
grandchild in the second degree.
Counting degrees in the collateral line is a bit more complicated. In that line,
the number of degrees is equal to the number of generations between one
relative and the common ancestor, plus the number of generations between
the common ancestor and the other relative. CC art. 901. To count degrees
between any two persons in the collateral line, one starts with one of them,
counting him as “zero”; then counts by “ones” up the direct line from that
collateral to the common ancestor of both of them; and, finally, counts down
the direct line from that common ancestor to the other one. Thus, siblings are
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related in the second degree; aunt and nephew in the third degree; and first
cousins in the fourth degree.
________
FH 1.0. Here’s part of Ti-Boy’s family tree:
Ozon
____|____
|
|
Tante+++++Noncle
Papre++++++Mamre
|
____|____
|
|
|
Monte
Basile Pascal++++++Julie
|
|
____|____
|
|
|
|
Denise
Cassis
Lil-Fille Ti-Boy*
Depicted in the family tree, in addition to Ti-Boy, are his sister, Lil-Fille; his mother, Julie; his
father, Pascal; his paternal uncle, Basile; his paternal 1st cousin, Cassis, whom Basile sired out of
wedlock and to whose mother Basile is not now and never has been married; his paternal
grandmother, Mamre; his paternal grandfather, Papre; his paternal grand-uncle, Noncle; his
paternal grand-aunt, Tante; his paternal 1st cousin, once removed, Monte; his paternal 2nd cousin,
Denise, whom his cousin Monte adopted from the Cajun Adoption Agency; and his paternal
great-grandfather, Ozon. All of these persons are related to Ti-Boy by blood, save for Basile,
who is the adopted child of Papre and Mamre, and Tante, who is Noncle’s wife. Consider,
in particular, the relationships between Ti-Boy, on the one hand, and (i) Ozon, (ii) Lil-Fille, (iii)
Basile, (iv) Cassis, (v) Noncle, (vi) Tante, and (vii) Denise, on the other. Tell me, for each case,
(1) what kind of familial relation is involved and (2) what degree of relationship exists between
Ti-Boy and his relative.
B Highly-regulated familial relations
1 Husband & wife (marriage)
a Definition
What is marriage? Read CC art. 86.6
6
Unlike the Louisiana Civil Code, most foreign civil codes (e.g., the French, the Spanish, the
German, the Italian, the Quebec, the Mexican, the Argentine) do not provide a definition of marriage.
Some interesting exceptions to this general rule are the civil codes of Brazil and of Chile. The former
declares that “[m]arriage establishes a full community of life, founded on an equality of rights and duties
between the two spouses.” CÓDIGO CIVIL art. 1511. The latter defines marriage as “a solemn contract
whereby a man and a woman unite themselves at present and indissolubly and for their whole life and
with the end of living jointly, of procreating, and of mutually assisting each other.” CÓDIGO CIVIL art.
102. This definition bears a striking resemblance to that found in the Code of Canon Law of the
Roman Catholic Church (“The marriage covenant, by which a man and a woman establish between
themselves a partnership of their whole life, and which of its own very nature is ordered to the well-being
of the spouses and to the procreation and upbringing of children, has, between the baptized, been raised
-15-
1) Relationship
What is the significance of declaring that marriage is a “relationship”? “Relationship” as
opposed to what? See CC art. 86 cmt. (d).
2) Man & woman
What is the significance of declaring that marriage is between “a man and a woman”? “A
man and a woman” as opposed to what? See CC art. 89 & cmt. (a).
3) Civil contract
What is the significance of declaring that marriage is a “civil contract”? “Civil contract” as
opposed to what? See CC art. 86 cmt. (a); then see Spaht, §§ 1.2-1.4, pp. 1-7.
b Classification
________
NOTE
Current Louisiana law recognizes two rather different kinds of marriage. The
two are distinguished both by their prerequisites and by the causes for their
dissolution
1. Standard, simple, “at will” marriage
One kind of marriage is the “standard,” “simple,” or “at will” marriage. It is
“standard” in that it is still the choice of most (90%+) Louisianians; it is “simple”
in that the parties, to contract such a marriage, need not meet the heightened
requirements for the other kind of marriage; it is “at will” in the sense that
either party is free to dissolve it unilaterally and without cause.
2. Covenant marriage
The other kind of marriage is the “covenant” marriage. The term “covenant” is
intended to signify that such a marriage entails a “lifelong” commitment7, one
that is, in principle, indissoluble. Compared to a standard marriage, a
covenant marriage cannot be as lightly contracted (there are certain
heightened requirements, including pre-marital counseling) or as lightly
by Christ the Lord to the dignity of a sacrament. . . . The essential properties of marriage are unity and
indissolubility . . . .” CODE OF CANON LAW can. 1055, § 1, & can. 1056.)
Even in those jurisdictions whose civil codes do not define marriage, there is, of course, a “working
definition” of that term, one that has been developed by doctrine. Here’s a classic French doctrinal
definition, one penned by Portalis (head of the commission that drafted the Projet du gouvernement for
the French Civil Code): “Marriage is a society of man and of woman who unite themselves in order to
perpetuate their species, to aid each other, by mutual support to bear to the weight of life and to share
their common destiny.” 9 _____ Fenet, RECUEIL COMPLET DES TRAVAUX PRÉPARATOIRES DU CODE CIVIL
140 (__ ed. _____). And here’s a classic German doctrinal definition: “Marriage is the union of a man
and a woman, recognized by the law and invested with certain juridical consequences. . . . [It] constitutes
the union of a man and woman designed for the establishment for a full community of life.” 4 Ludwig
Enneccerus, Theodor Kipp & Martín Wolff, TRATADO DE DERECHO CIVIL: DERECHO DE FAMILIA § 2, at
10 & 11 (6th rev. 1928; Blas Pérez Gonzalez et al. trs. [German to Spanish] 1947).
7
See La. Rev. Stat. 9: 272.A.
-16-
dissolved (the marriage can be dissolved only after counseling and, then, only
for cause).
________
c
Formation of marriage
At least in the typical case, the formation of marriage takes place in two stages. First, the
parties enter into a contract to marry, customarily referred to as the “engagement,” whereby each
promises to marry the other. Second, the parties enter into the contract of marriage itself,
accomplishing by “exchanging vows” at a “wedding ceremony.”
1) Contract “preparatory to” marriage: the “engagement” or the
contract to marry (“promise to marry”)
________
NOTE
Many, if not most, foreign civil codes contain provisions that address the
prerequisites for, the enforceability of, or the dissolution of the contract to
marry. Consider, for example, the following provisions of the Spanish Civil
Code:
Art. 42. A promise of marriage creates no obligation to contract it
or to perform what may have been stipulated for the event that the
marriage did not take place.
A petition demanding specific performance of the promise of marriage
shall not be admitted.
Art. 43. An unjustified breach of the definite promise of marriage,
made by a person of the age of majority or by an emancipated minor,
shall only produce the obligation of reimbursing the other party for the
expenses made and the obligations contracted in consideration of the
promised marriage.
CÓDIGO CIVIL arts. 42-43. See also Argentine CÓDIGO CIVIL art. 165; Chilean
CÓDIGO CIVIL art. 98-101; German BURGERLICHES GESETZBUCH §§ 1297-1302;
Italian CODICE CIVILE arts. 79-81. Mexican CÓDIGO CIVIL arts. 139-145; CODE OF
CANON LAW can. 1062.
Lamentably, the Louisiana Civil Code, following the French Civil Code, is
completely silent with respect to the contract to marry.8 In Louisiana, then, as
in France, the resolution of these issues has been left to jurisprudence and
doctrine. Here’s a sample of the French doctrine:
35. Promise of marriage. -- Engagement is a promise of marriage
made by one person to the other (a unilateral promise) or, as more
frequently happens, a reciprocal promise that two persons make
together to marry each other.
8
This “gap” in our legislation, in my judgment, should have been filled when the law of marriage
was revised in 1987. Perhaps next time.
-17-
Out of favor for the liberty of marriage, the Cour de cassation, in two
major judgments rendered in . . . 1838, ruled that, for reasons of
public order, engagement is not a juridical act. As a result, it is
deprived of obligatory effect, and each fiancé conserves the right to
break it. This solution, however, clearly was not imposed [on the
court]: it is written nowhere in the Code civil (no more than is its
contrary). . . .
[That the Code does not address the question] explains the numerous
doctrinal discussions [that have arisen] on the question. Thus,
Josserand saw in the engagement a synallagmatic contract, putting
on to the promisors an obligation to do, which could be dissolved by
mutual consent or resolved by the unilateral will [of one promisor],
provided [the decision] was not abusive.
Hémard proposed
recognizing an obligation to do that consists of marrying. Wiederkehr
thinks that the engagement creates an obligation to pursue
preparations in view of the marriage with loyalty. Finally, others see
in the engagement a natural obligation that results from an
engagement of honor.
Though these discussions have succeeded in dividing the doctrine,
the jurisprudence has been fixed since the judgments of 1838:
engagements do not create obligations to marry. Each fiancé can
exercise his right to break the engagement, but this right is
susceptible of abuse, which produces civil liability.
36. Circumstances [of abuse of the right to break the engagement]. -Very soon after the judgments of 1838, the jurisprudence moved to
temper those judgements. The non-performance of the promise of
marriage was not an act of fault in itself, since it was simply the
exercise of the right to break the engagement. Nevertheless, the
circumstances of the rupture[, the courts recognized,] could be
abusive or faulty. If so, those circumstances could become sources
of civil liability for the ex-fiancé at fault[, the courts concluded]. . . .
...
38. The fault of the promisor who breaks the engagement. -- Civil
liability results from circumstances prior to or concomitant with the
break such as these: it was brusque or unforewarned, disrespectful
or even rude, late, without legitimate motive (examples: a break
made without forewarning and with rudeness, where the fiancé had
continued to address inflamed love letters to his partner up until the
day on which he had made the break . . .; a break . . . that took
place only five weeks before the date that had been set for the
wedding . . .; a break made without legitimate motive, for instance,
by simple caprice or upon the announcement by the young girl of her
pregnancy [by her fiancé] . . . .)
...
In nearly all of the recent decisions of the jurisprudence, what has
-18-
been punished is brutal breaks made without justification. But a
break, even one that is late, is not faulty if it has been provoked by
the prior fault of the fiancé who is cut loose: this fault is a just cause
for a break by the other party.
39. The damages suffered by the abandoned fiancé. -- The victim of
a faulty break can demand repair of the damages that he has
suffered. The damages . . . can be material or moral:
1 material: expenses incurred in view of the marriage (wedding
dress, wedding food, honeymoon . . ., furniture, location of lodging . . .
.). But the gain lost or the lost of the chance of [improving one's
social] situation is not compensable.
2 moral: the psychological shock, the depression occasioned by
the break, the discreditation in one's social or professional milieu . . .
constitute compensable damages. . . .
...
41. Restitution. -- As to "customary presents," which are designed
to express affection or to bear witness that the family welcomes [the
donee], each donee keeps that he has received. It is often the case
with "engagement jewelry," unless it's a matter of "family jewelry," in
which case it is [understood to have been] given over to the fiancée
by virtue of a loan for use and must, therefore, be returned. Outside
of the hypothesis of a loan for use and that of a donation made in
view of the marriage, the jewelry is a customary gift. . . .
DROIT DE LA FAMILLE nn 35-36 & 38, at 16-18 (Jacqueline Rubelin-Devichi
dir., 1999).
The Louisiana jurisprudence, which has adopted a somewhat different
approach to claims for breach of the contract to marry, is summarized and
illustrated for you in Spaht, § 3.1, pp. 45-48 (including Glass). See also
Spaht, § 3.2, p. 60. How, precisely, does Louisiana’s approach different from
that of Spain? That of France? Isn’t it more liberal (less restrictive) with
respect to remedies? Explain.
________
FH 1.1. When Olide asked Clodice if she’d marry him, she said, “Yes.” In the run up to the
wedding, Clodice incurred a number of expenses, e.g., she purchased a wedding dress, wedding
invitations, and decorations for the wedding and rented out the church building. Then, just
before the rehearsal dinner (set for the eve of the wedding), Olide, without warning, told Clodice
that the wedding was “off.” When she asked why, he told her that he was in love with another
woman, namely, Desirée, Clodice’s maid of honor. When Clodice finally recovered from the
shock of being jilted (which took several weeks), she demanded that Olide reimburse her for the
expenses she’d incurred in anticipation of the wedding. Olide then demanded that Clodice
return the $5000 engagement ring that he’d given her. Must either of them give the other what
he / she has demanded? Why or why not? Please answer these questions on the basis of
Spanish law, French law, and Louisiana law.
2) Contract of marriage itself
-19-
a)
Requirements
1] Requirements for all marriages
Read Spaht, § 3.5, pp. 68-69.
a] Absence of impediment
1} In general
What’s the meaning of the term “impediment”? Read the following note.
________
NOTE
The term “impediment,” as used in the context of the law of marriage, seems
to have been coined by the Canonists and the Glossators of the 12 th century.9
P. Charles Augustine, A COMMENTARY ON THE NEW CODE OF CANON LAW 81
(1919); 4 Ludwig Enneccerus, Theodor Kipp & Martín Wolff, TRATADO DE
DERECHO CIVIL: DERECHO DE FAMILIA § 8, at 53 (6th rev. 1928; Blas Pérez
Gonzalez et al. trs. [German to Spanish] 1947); R.P. Hernán Arboleda
Valencia, DERECHO MATRIMONIAL ECLESIASTICO 149 (1970). Both groups used
the term for the same purpose (though each group used it in regard to “its”
own body of law – the Canonists, in regard to canon law, and the Glossators,
in regard to post-classical Roman law), namely, as an “umbrella” term for legal
obstacles to a valid and licit marriage. T. Lincoln Bouscaren, Adam C. Ellis &
Francis N. Korth, CANON LAW : A TEXT & COMMENTARY can. 1035, at 489 (4th rev.
ed. 1963); Valencia, supra, at 149. Thus, by way of “negation,” the
impediments served to point up the requisites for such a marriage (much the
same way that, in property law, the “vices of possession” serve to point up the
requisites for a valid and effective possession). See Enneccerus, supra, at
53.
As the term “impediment” was originally used, it had a rather broad
signification (lato senso). It extended to every possible defect in marriage of
whatsoever kind. Bouscaren, supra, at 489; Valencia, supra, at 149; see also
Augustine, supra, at 81; Enneccerus, supra, at 52. Alongside “impediments of
the person,” that is, disqualifications to marry imposed on certain classes of
persons as a matter of policy (e.g., prohibitions on inter-marriage between
close relatives), scholars spoke of “impediments of form,” that is, defects in the
wedding ceremony (e.g., officiation by a defrocked priest), and “impediments
of consent,” that is, defects in the spouses’ consent (e.g., incapacity to consent
or some vice of consent, such as “duress”). Bouscaren, supra, at 489;
Valencia, supra, at 149.
With time the term “impediment” came to be used in a much narrower sense
(strictu sensu). So used, it refers only to defects in marriage that are based
on the “person” (the policy-based marriage disqualifications imposed on
9
Perhaps the earliest recorded use of the term is found in Gratian’s Decretals (an early compilation
of canon law): Impedit matrimonium contrahendum; dirimit contractum. (“[It] impedes a completed
marriage; [it] nullifies the contract.”)
-20-
certain types of persons). Bouscaren, supra, at 489-90; Valencia, supra, at
149; see also Augustine, supra, at 81. Defects in the ceremony as well as
defects in the consent came to be thought of sui generis defects, defects that
are by nature different from “impediments” properly so called. Bouscaren,
supra, at 489-90; Valencia, supra, at 149.
________
2}
Read Spaht, §§ 3.6 & 3.7, pp. 69-70.
Particular impediments
a}
Prior undissolved marriage (prohibition on
polygamy)
What’s Louisiana’s position on polygamy? Read CC art. 88.10 Then read Spaht, § 4.4, p.
86.
FH 2. Deciding that she’s had enough of her husband Olide, Clodice hires an attorney to
represent her in a divorce action. The attorney, paraphrasing CC art. 102, tells her that they first
will file a petition for divorce; then, six months later, will file a rule to “show cause” why the
divorce should not be granted; and, finally, when the judge rules in her favor on the rule, will
submit a proposed judgment to him for his signature. Clodice asks what, precisely, she must do.
The attorney tells her, “Just sign this petition here and I’ll take care of the rest, that is, I’ll submit
the rule to show cause and prepare the proposed judgment.” After signing the petition, Clodice
tells the attorney that she’s leaving town and will be “counting on you to take care of all the rest
of the paperwork.” “Will do,” says the attorney. As the suit is filed, Clodice heads out of town
to start her “new life.” Before long, Clodice meets Newt, with whom she falls deeply in love.
Though they are eager to get married, they know that they must first wait for the “six month”
period to pass. When that period ends, the attorney, as he had promised, prepares and files the
rule to show cause. At the hearing on the rule, the judge, after ruling for Clodice, directs her
attorney to prepare a proposed judgment. Before the attorney can do that, however, he suffers a
heart attack and dies. As a result, the proposed judgment is never even submitted, much less
signed. Meanwhile, Clodice and Newt, confident that the divorce is now final (it’s been more
than six months), get married. A few years pass. Then Clodice learns that her divorce from
Olide was never, in fact, finalized. Thrilled at this news – for she’s now tired of Newt, too – ,
she tells Newt “we were never really married” and then promptly leaves him for her next “new
life.” Is she correct? Why or why not?
b} Identity of sex
Does Louisiana permit so-called “same sex” marriages? Read CC art. 89.11 Then read La.
10
Provisions comparable to CC art. 88 can be found in the civil codes or related legislation of all
foreign civil-law jurisdictions. Examples include Argentine CÓDIGO CIVIL art. 166(6); Brazilian
CÓDIGO CIVIL art. 1521(VI); Chilean Ley de Matrimonio Civil art. 4(1); French CODE CIVIL art. 147;
German BURGERLICHES GESETZBUCH § 1306; Italian CODICE CIVILE art. 86; Mexican CÓDIGO CIVIL art.
156(X); Quebec CIVIL CODE art. 373(3); Spanish CÓDIGO CIVIL art. 46(2). See also CODE OF CANON
LAW can. 1085, § 1 (“A person who is held to the bond of a prior marriage, even if it has not been
consummated, invalidly attempts marriage.”)
11
Though few, if any, other civil codes describe “identity of sex” as an “impediment” to marriage
-21-
Const. art. 12, § 15 (2004), entitled “Defense of marriage”:
Marriage in the state of Louisiana shall consist only of the union of one man and one
woman. No official or court of the state of Louisiana shall construe this constitution or
any state law to require that marriage or the legal incidents thereof be conferred upon
any member of a union other than the union of one man and one woman. A legal status
identical or substantially similar to that of marriage for unmarried individuals shall not
be valid or recognized. No official or court of the state of Louisiana shall recognize any
marriage contracted in any other jurisdiction which is not the union of one man and one
woman.
Finally, read Spaht, § 4.5, pp. 86-87.
FH 3. Danny and Guy, homosexual male lovers domiciled together in New Orleans, fly to
Amsterdam to attend an international “gay awareness” conference in Amsterdam. While there,
they decide to get married, something that is permitted under Dutch law. The ceremony is
performed by a dissident, but as yet not defrocked, Jesuit Catholic priest. Following their return
to New Orleans, Danny experiences a religious conversion, decides to “go straight,” and begins
to date women. In time he falls for Desirée, whom he now wants to marry. Does his prior
“marriage” to Guy stand in the way (as an impediment) or not? Why?
FH 4. The same as before, except as follows. Though he was “born” male (standard male
XY chromosome pattern in all his cells; completely male physiology), Guy, with a little help
from certain surgeons in Sweden, “became” a female. That’s right: he underwent a
“sex-change” or, to use the currently fashionable expression, “trans-gender” operation. This
took place before his supposed marriage to Danny. What result now? Why?
Is Louisiana’s prohibition of so-called “same-sex marriage” constitutional, to be precise, is
it consistent with the “equal protection” and “due process” clauses of the Louisiana and federal
constitutions? Read Spaht, § 2.2, at 19-29; then read the following opinions, which, as of the
preparation of this Supplement, represent the latest statement on the topic from a US court:
__________
Lewis v. Harris, ---- A.2d ----, 2005 WL 1388578 (N.J. Super. A.D. 2005)
Before Judges SKILLMAN, COLLESTER and PARRILLO.
in haec verbae, a good number do make it clear that the parties to a marriage must of opposite sexes.
See, e.g., Brazilian CÓDIGO CIVIL art. 1.514 (“Marriage is concluded the moment at which the man and
the woman manifest, before the judge, their will to establish a conjugal bond and the judge declares them
married.”); Chilean CÓDIGO CIVIL art. 102 (“Marriage is a solemn contract whereby a man and a woman
unite themselves . . . .”); Quebec CIVIL CODE art. 365, par. 2 (“Marriage may be contracted only between
a man and a woman . . . .”); Spanish CÓDIGO CIVIL art. 44 (“Men and woman have a right to contract
marriage in accordance with the provision of this Code.”) See also CODE OF CANON LAW can. 1055, § 1
(“The matrimonial covenant, by which a man and a woman establish between themselves a partnership
for the whole of life. . . .”) Even in those jurisdictions whose civil codes do not address the issue, the
doctrine and the jurisprudence have reached the same conclusion. See, e.g., DROIT DE LA FAMILLE no
173, at 66 (Jacqueline Rubellin-Devichi dir., 1999) (“Requirement [of sexual diversity]. – The [French]
Code civil does not mention this cause of nullity expressly . . . . Difference of sex, however, constitutes
an implicit condition of marriage, just as it seems to do for concubinage . . . .”)
-22-
*1 The opinion of the court was delivered by SKILLMAN, P.J.A.D.
The issue presented by this appeal is whether the New Jersey Constitution
compels the State to allow same-sex couples to marry. We conclude that the
statutory limitation of the institution of marriage to members of the opposite
sex does not violate our Constitution.
Plaintiffs are seven same-sex couples. Defendants are state officials with
supervisory responsibilities relating to local officials' issuance of marriage
licenses. Plaintiffs' complaint alleges that each couple applied for a marriage
license in the municipality in which they reside, but the clerk refused to issue
the license because New Jersey law does not authorize a marriage between
members of the same sex. Plaintiffs claim that the denial of their applications
for marriage licenses violates their rights of privacy and equal protection of the
law protected by the New Jersey Constitution. Plaintiffs do not contend that
New Jersey's marriage statutes authorize a marriage between members of the
same sex or that the limitation of marriage to members of the opposite sex
violates the United States Constitution. As relief for the claimed violations of
their state constitutional rights, plaintiffs sought a mandatory injunction
compelling the defendant state officials to provide them access to the
institution of marriage on the same terms and conditions as a couple of the
opposite sex.
...
The trial court issued a comprehensive written opinion rejecting plaintiffs'
claims and upholding the constitutionality of New Jersey's statutory provisions
that only allow members of the opposite sex to marry. In rejecting plaintiffs'
claim that they have a fundamental right to marry and that the State violated
this right by refusing to issue them marriage licenses, the court stated:
The right to marry has always been understood in law and tradition to
apply only to couples of different genders. A change in that basic
understanding would not lift a restriction on the right, but would work a
fundamental transformation of marriage into an arrangement that
could never have been within the intent of the Framers of the 1947
Constitution. Significantly, such a change would contradict the
established and universally accepted legal precept that marriage is
the union of people of different genders.
In rejecting plaintiffs' equal protection claim, the court stated:
Plaintiffs, like anyone else in the state, may receive a marriage
license, provided that they meet the statutory criteria for marriage,
including an intended spouse of the opposite gender. Plaintiffs are, in
that sense, in the same position as all other New Jersey residents.
The State makes the same benefit, mixed-gender marriage, available
-23-
to all individuals on the same basis. Whether or not plaintiffs wish to
enter into a mixed-gender marriage is not determinative of the
statute's validity. It is the availability of the right on equal terms, not
the equal use of the right that is central to the constitutional analysis.
Plaintiffs seek not to lift a barrier to marriage, but to change its very
essence.
*2 Based on this opinion, the trial court entered final judgment dismissing
plaintiffs' complaint.
During the pendency of this appeal, the Legislature enacted the Domestic
Partnership Act, L. 2003, c. 246, which confers substantial legal rights upon
same-sex couples who enter into domestic partnerships corresponding in
many respects to the rights of opposite-sex couples who marry. . . .
...
*3 As a result of enactment of the Domestic Partnership Act, which extends
many of the economic benefits and regulatory protections of marriage to
persons of the same sex who enter into domestic partnerships, plaintiffs may
now avoid many of the adverse consequences of being denied the opportunity
to marry alleged in their complaint, such as denial of the right to participate in
family insurance plans, denial of hospital visitation rights, denial of the right to
make health care decisions when their partner is incapacitated, denial of the
right to bury and control the disposition of a partner's remains, and denial of
the benefit of the protections against discrimination provided by the LAD, by
entering into domestic partnerships. The record does not indicate whether any
of the plaintiff couples have entered into or plan to enter into domestic
partnerships because the case was heard in the trial court before enactment of
the Domestic Partnership Act. Consequently, this case does not involve any
claim of a denial of constitutional rights to same-sex domestic partners on the
ground that they are not afforded all the benefits and rights of opposite-sex
married couples. Rather, plaintiffs' claim is that even if the Domestic
Partnership Act conferred all the benefits and legal rights of marriage, the New
Jersey Constitution would nevertheless compel recognition of same-sex
marriage.
...
*4 Plaintiffs' claim of a constitutional right to recognition of same-sex marriage
is based on article I, paragraph 1, of the New Jersey Constitution, which
provides:
All persons are by nature free and independent, and have certain
natural and unalienable rights, among which are those of enjoying
and defending life and liberty, of acquiring, possessing, and protecting
property, and of pursuing and obtaining safety and happiness.
-24-
Our Supreme Court has held that this paragraph confers state constitutional
rights to due process and equal protection of the law. Sojourner A. v. N.J.
Dep't of Human Servs., 177 N.J. 318, 332, 828 A.2d 306 (2003); Greenberg v.
Kimmelman, 99 N.J. 552, 568, 494 A.2d 294 (1985). Plaintiffs invoke both of
these rights in support of their challenge to the limitation of the institution of
marriage to members of the opposite sex. We address plaintiffs' due process
claim in section I of this opinion and their equal protection claim in section II.
I
Article I, paragraph 1, protects both procedural and substantive due process
rights. See Doe v. Poritz, 142 N.J. 1, 99, 662 A.2d 367 (1995); Greenberg,
supra, 99 N.J. at 568-69, 494 A.2d 294. The substantive due process rights
protected by this provision include the right of privacy. See Sojourner A.,
supra, 177 N.J. at 332-33, 828 A.2d 306; Greenberg, supra, 99 N.J. at 567-68,
571-72, 494 A.2d 294. This right of privacy "embraces the right to make
procreative decisions ... [and] the right of consenting adults to engage in
sexual conduct." Greenberg, supra, 99 N.J. at 571-72, 494 A.2d 294 (citations
omitted).
Our Supreme Court has held that the due process and privacy protections of
article I, paragraph 1, also include the right of members of the opposite sex to
marry. Ibid. In fact, the Court has characterized this right as "fundamental."
J.B. v. M.B., 170 N.J. 9, 23-24, 783 A.2d 707 (2001); In re Baby M., 109 N.J.
396, 447, 537 A.2d 1227 (1988). However, the Court has never considered
whether the New Jersey Constitution confers a right to marry upon members of
the same sex.
This court indirectly rejected the view that same-sex couples have a
constitutional right to marry in a decision sustaining the validity of provisions of
the State Health Plan that denied health benefits to same-sex partners that
were extended to spouses of married public employees. Rutgers Council of
AAUP Chapters v. Rutgers, 298 N.J.Super. 442, 452-62, 689 A.2d 828
(App.Div.1997), certif. denied, 153 N.J. 48, 707 A.2d 151 (1998). Relying upon
decisions in other jurisdictions that have rejected same-sex couples' claims of
a constitutional right to marry, we concluded that the determination whether to
extend the same benefits to same-sex partners as to spouses involves
"political and economic issues to be decided by the elected representatives of
the people." Id. at 462, 689 A.2d 828.
Other jurisdictions have expressly rejected constitutional challenges to statutes
that limit the institution of marriage to members of the opposite sex. See, e.g.,
Standardt v. Superior Court ex rel. Maricopa, 206 Ariz. 276, 77 P.3d 451
(Ariz.Ct.App.2003), review denied (Ariz.2004); Dean v. Dist. of Columbia, 653
A.2d 307 (D.C.1995); Morrison v. Sandler, 821 N.E.2d 15 (Ind.Ct.App.2005);
-25-
Jones v. Hallahan, 501 S.W.2d 588 (Ky.Ct.App.1973); Baker v. Nelson, 291
Minn. 310, 191 N.W.2d 185 (Minn.1971), appeal dismissed for want of a
substantial federal question, 409 U.S. 810, 93 S.Ct. 37, 34 L. Ed.2d 65 (1972);
In re Cooper, 187 A.D.2d 128, 592 N.Y.S.2d 797, 799-801 (App.Div.), appeal
dismissed, 82 N.Y.2d 801, 604 N.Y.S.2d 558, 624 N.E.2d 696 (N.Y.1993);
Singer v. Hara, 11 Wash.App. 247, 522 P.2d 1187 (Wash.Ct.App.), review
denied, 84 Wash.2d 1008 (Wash.1974). In Singer, the court concluded that
the limitation of the institution of marriage to members of the opposite sex "is
based upon the state's recognition that our society as a whole views marriage
as the appropriate and desirable forum for procreation and the rearing of
children," 522 P.2d at 1195, and that "marriage is so clearly related to the
public interest in affording a favorable environment for the growth of children
that we are unable to say that there is not a rational basis upon which the state
may limit the protection of its marriage laws to the legal union of one man and
one woman," id. at 1197. Other courts that have rejected challenges to the
constitutionality of the limitation of marriage to members of the opposite sex
also have relied upon the role that marriage plays in procreation and in
providing the optimal environment for child rearing. See Standhardt, supra, 77
P.3d at 461-64; Dean, supra, 653 A .2d at 333; Morrison, supra, 821 N.E.2d at
23-35; Nelson, supra, 191 N.W.2d at 186.
*5 The only state supreme court decision that has declared the limitation of the
institution of marriage to members of the opposite sex to be unconstitutional is
Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 798 N.E.2d 941
(Mass.2003), which is discussed later in this opinion. See also Opinions of the
Justices to the Senate, 440 Mass. 1201, 802 N.E.2d 565 (Mass.2004). In
addition, the Vermont Supreme Court held that denial of the benefits incident
to marriage to same-sex domestic partners violated the "common benefits"
provision of the Vermont Constitution, but that this constitutional violation could
be remedied by enactment of a domestic partnership act or other legislation
that extends the benefits that flow from marriage to same-sex couples. Baker
v. State, 170 Vt. 194, 744 A.2d 864, 886-87 (Vt.1999). The Vermont
Legislature subsequently enacted legislation authorizing domestic partnerships
to comply with this mandate. Vt. Stat. Ann. tit. 15 §§ 1201-07 (2004). The
Hawaii Supreme Court held that the limitation of marriage to members of the
opposite sex established a sex-based classification that required strict scrutiny
under equal protection analysis, Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44
(Haw.1993), and on remand, a trial court declared this limitation to be violative
of the Hawaii Constitution, but before the case was brought back before the
Hawaii Supreme Court, the electorate approved a constitutional amendment
prohibiting same-sex marriage, Haw. Const. art. I, § 23. See William C.
Duncan, Whither Marriage in the Law?, 15 Regent L.Rev. 119, 119-20 (2003).
Our Supreme Court has indicated that in determining whether a claimed right
is entitled to protection as a matter of substantive due process, a court should
-26-
"look to 'the traditions and [collective] conscience of our people to determine
whether a principle is so rooted [there] ... as to be ranked as fundamental.' "
King v. S. Jersey Nat'l Bank, 66 N.J. 161, 178, 330 A.2d 1 (1974) (quoting
Griswold v. Connecticut, 381 U.S. 479, 493, 85 S.Ct. 1678, 1686, 14 L. Ed.2d
510, 520 (1965) (Goldberg, J., concurring)). Similarly, the Supreme Court of
the United States has recently reaffirmed that "the Due Process Clause
specially protects those fundamental rights and liberties which are, objectively,
'deeply rooted in this Nation's history and tradition,' and 'implicit in the concept
of ordered liberty,' such that 'neither liberty nor justice would exist if they were
sacrificed.' " Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct .
2258, 2268, 138 L. Ed.2d 772, 787-88 (1997) (citations omitted). The Court
noted that confining constitutional protection to "fundamental rights found to be
deeply rooted in our legal tradition ... tends to rein in the subjective elements
that are necessarily present in due-process judicial review." Id. at 722, 117
S.Ct. at 2268, 138 L. Ed.2d at 788.
Marriage between members of the same sex is clearly not a "fundamental right
[ ] ... deeply rooted in our legal tradition." To the contrary, as we observed in
M.T. v. J.T., 140 N.J.Super. 77, 83-84, 355 A.2d 204 (App.Div.), certif. denied,
71 N .J. 345, 364 A.2d 1076 (1976):
*6 [A] lawful marriage requires the performance of a ceremonial
marriage of two persons of the opposite sex, a male and a female.
Despite winds of change, this understanding of a valid marriage is
almost universal....
... The historic assumption in the application of common law and
statutory strictures relating to marriages is that only persons who can
become 'man and wife' have the capacity to enter marriage.
Plaintiffs' claim that a right to marriage between members of the same sex
may be found in article I, paragraph 1, of the New Jersey Constitution has no
foundation in its text, this Nation's history and traditions or contemporary
standards of liberty and justice. It certainly is an idea that would have been
alien to the delegates to the 1947 Constitutional Convention who proposed this
provision and to the voters who approved it. Although there has been a
substantial liberalization of public attitudes towards the rights of homosexuals
in the intervening fifty-eight years, there is no current public consensus
favoring recognition of marriages between members of the same sex. In fact,
in 1996 Congress enacted the Defense of Marriage Act (DOMA), Pub.L. No.
104-199, 110 Stat. 2419, which provides that no State shall be required to give
effect under the Full Faith and Credit Clause of the United States Constitution,
U.S. Const. art. IV, § 1, to any other state's law that recognizes same-sex
marriage, 28 U.S.C.A. § 1738C, and that all Acts of Congress that refer to
"marriage" or "spouse" shall be interpreted to apply only to mixed-gender
couples, 1 U.S.C.A. § 7. And as previously discussed, our Legislature recently
enacted the Domestic Partnership Act, which confers substantial legal rights
-27-
upon same-sex couples who enter into domestic partnership unions but stops
short of recognizing the right of members of the same sex to marry.
Plaintiffs have failed to identify any source in the text of the New Jersey
Constitution, the history of the institution of marriage or contemporary social
standards for their claim that the Constitution mandates State recognition of
marriage between members of the same sex. Plaintiffs describe marriage as
simply a "compelling and definitive expression of love and commitment that
can occur between two adults"--without any reference to the historical,
religious or social foundations of the institution--and argue that because two
members of the same sex have the same capacity as members of the
opposite sex to "make a strong and meaningful lifetime commitment to each
other," the State must extend the same recognition to same-sex marriage as a
marriage between members of the opposite sex. However, our society and
laws view marriage as something more than just State recognition of a
committed relationship between two adults. Our leading religions view
marriage as a union of men and women recognized by God, see Larry Cat
Backer, Religion as the Language of Discourse of Same Sex Marriage, 30
Cap. U.L.Rev. 221, 234-36 (2002), and our society considers marriage
between a man and woman to play a vital role in propagating the species and
in providing the ideal environment for raising children. See George W. Dent,
Jr., The Defense of Traditional Marriage, 15 J.L. & Pol., 581, 593-601 (1999);
William C. Duncan, The State Interests in Marriage, 2 Ave Maria L.Rev. 153,
164-72 (2004); Monte Neil Stewart, Judicial Redefinition of Marriage, 21
Canadian J. Fam. L., 11, 41-85 (2004).
*7 Indeed, the very cases that plaintiffs rely upon for the proposition that there
is a fundamental right to marry reflect these common understandings of the
religious and social foundations of marriage that limit the institution to
members of the opposite sex. For example, in Turner v. Safley, 482 U.S. 78,
96, 107 S.Ct. 2254, 2265, 96 L. Ed.2d 64, 83 (1987), the Court noted that
"many religions recognize marriage as having spiritual significance; ... and ...,
therefore, the commitment of marriage may be an exercise of religious faith as
well as an expression of personal dedication." In Zablocki v. Redhail, 434 U.S.
374, 384, 98 S.Ct. 673, 680, 54 L. Ed.2d 618, 629 (1978), the Court
"recognized that the right 'to marry, establish a home and bring up children' is
a central part of the liberty protected by the Due Process Clause," and
described marriage "as 'fundamental to the very existence and survival of the
race.' " (Citations omitted).
The conclusion that marriage between members of the same sex has no
historical foundation or contemporary societal acceptance and therefore is not
constitutionally mandated is supported by decisions in other jurisdictions that
have addressed the issue. In Standhardt, supra, 77 P.3d at 459, the court
concluded that "[a]lthough same-sex relationships are more open and have
-28-
garnered greater societal acceptance in recent years, same-sex marriages are
neither deeply rooted in the legal and social history of our Nation or state nor
are they implicit in the concept of ordered liberty." Similarly, in Dean, the court
concluded that "same-sex marriage is not a 'fundamental right' protected by
the due process clause, because that kind of relationship is not 'deeply rooted
in this Nation's history and tradition.' " 653 A.2d at 331 (quoting Moore v. City
of E. Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 1938, 52 L. Ed.2d 531, 540
(1977)); see also Nelson, supra, 191 N.W.2d at 186 (noting that "[t]he
institution of marriage as a union of man and woman, uniquely involving the
procreation and rearing of children within a family, is as old as the book of
Genesis.").
Plaintiffs argue that the State's contention that the essence of the institution of
marriage is a State-sanctioned union between members of the opposite sex
constitutes "circular reasoning,"--a characterization adopted by the dissent in
its discussion of decisions in other jurisdictions that have upheld the limitation
of the institution of marriage to members of the opposite sex. See infra, --N.J.Super. at ---- (slip op. at 7-8). However, plaintiffs' argument proceeds along
the same kind of circular path that they accuse the State of following. Plaintiffs
start with the premise that there is no difference between a "compelling and
definitive expression of love and commitment" between members of the same
sex and a marriage between members of the opposite sex, and then argue
from this premise that the State has failed to carry its burden of justifying the
limitation of the institution of marriage to a man and a woman. But the
significant difference between these arguments is that the State's argument is
grounded on historical tradition and our nation's religious and social values,
while plaintiffs' argument is based on nothing more than their own normative
claim that society should give unions between same-sex couples the same
form of recognition as marriages between members of the opposite sex.
*8 The same form of constitutional attack that plaintiffs mount against statutes
limiting the institution of marriage to members of the opposite sex also could
be made against statutes prohibiting polygamy. Persons who desire to enter
into polygamous marriages undoubtedly view such marriages, just as plaintiffs
view same-sex marriages, as "compelling and definitive expression[s] of love
and commitment" among the parties to the union. Indeed, there is arguably a
stronger foundation for challenging statutes prohibiting polygamy than statutes
limiting marriage to members of the opposite sex "because, unlike gay
marriage, [polygamy] has been and still is condoned by many religions and
societies." Dent, supra, 15 J.L. & Pol. at 628. Nevertheless, courts have
uniformly rejected constitutional challenges to statutes prohibiting polygamy on
the grounds that polygamous marriage is offensive to our Nation's religious
principles and social mores. Reynolds v. United States, 98 U.S. 145, 161-67,
25 L. Ed. 244, 248-51 (1878); Potter v. Murray City, 760 F.2d 1065, 1068-71
(10th Cir.), cert. denied, 474 U.S. 849, 106 S.Ct. 145, 88 L. Ed.2d 120 (1985);
-29-
see also State v. Green, 99 P.3d 820 (Utah 2004). In Reynolds, the Court
stated:
Polygamy has always been odious among the northern and western
nations of Europe, and, until the establishment of the Mormon
Church, was almost exclusively a feature of the life of Asiatic and
African people.... [F]rom the earliest history of England polygamy has
been treated as an offence against society.
....
... In the face of all this evidence, it is impossible to believe that the
constitutional guaranty of religious freedom was intended to prohibit
legislation in respect to this most important feature of social life.
[98 U.S. at 164-65, 25 L. Ed. at 250.] More recently, the Tenth Circuit
concluded:
Monogamy is inextricably woven into the fabric of our society. It is the
bedrock upon which our culture is built. In light of these fundamental
values, the State is justified, by a compelling interest, in upholding
and enforcing its ban on plural marriage to protect the monogamous
marriage relationship.
Potter, supra, 760 F.2d at 1070 (citation omitted).
Plaintiffs' only response to the State's comparison of the justification for
limitation of the institution of marriage to members of the opposite sex with its
limitation to a single man and a single woman is that "[t]hey do not challenge
the 'binary nature of marriage' and indeed embrace the solemn statutory
obligation of 'exclusivity.' " However, persons whose religions and cultural
traditions condone polygamy, but disapprove of same-sex marriage, could just
as easily say that they do not challenge the limitation of marriage to members
of the opposite sex, only the requirement that marriage must be binary.
In sum, the right to marry is a fundamental right that is subject to the privacy
protections of article I, paragraph 1, of the New Jersey Constitution. However,
this right extends only to marriages between members of the opposite sex.
Plaintiffs' claim of a constitutional right to State recognition of marriage
between members of the same sex has no foundation in the text of the
Constitution, this Nation's history and traditions or contemporary standards of
liberty and justice. Therefore, we reject plaintiffs' claim under the substantive
due process and privacy protections of the New Jersey Constitution.
II
*9 We turn next to plaintiffs' equal protection claim. In determining whether the
State has violated the equal protection guarantees of article I, paragraph 1, our
courts employ a balancing test that considers "the nature of the affected right,
the extent to which the governmental restriction intrudes upon it, and the public
need for the restriction." Greenberg, supra, 99 N.J. at 567, 494 A.2d 294.
-30-
Thus, the "crucial" threshold step in the required constitutional analysis is
identification of "the nature of the [claimed] right." Ibid.; see also Poritz, supra,
142 N.J. at 94, 662 A.2d 367.
In the decisions upon which plaintiffs construct their constitutional attack upon
the limitation of marriage to members of the opposite sex, it was undisputed
that the statute in issue affected a constitutional right. See Sojourner A., supra,
177 N.J. at 333, 828 A.2d 306 ("a woman's right to make procreative
decisions"); Greenberg, supra, 99 N.J. at 571-72, 494 A.2d 294 (the right of
members of the opposite sex to marry); Right to Choose v. Byrne, 91 N.J. 287,
303-04, 450 A.2d 925 (1982) ("a woman's right to choose whether to carry a
pregnancy to full-term or to undergo an abortion"); Planned Parenthood of
Cent. N.J. v. Farmer, 165 N.J. 609, 762 A.2d 620 (2000) (same).
Consequently, the only question in those cases was "the extent to which the
[challenged statute] intrude[d] upon [a recognized constitutional right], and the
public need for the restriction." Greenberg, supra, 99 N.J. at 567, 494 A.2d
294.
In contrast, the essential question in this case is whether same-sex couples
have any constitutional right to marry. For reasons set forth at length in section
I of this opinion, we are satisfied that only members of the opposite sex have a
constitutionally protected right to marry. Therefore, plaintiffs have failed to
satisfy their threshold burden to show the existence of an "affected right," and
for that reason the State is not required to show that the "public need" for
restrictions upon that right outweigh plaintiffs' interest in its exercise.
The primary federal decision upon which plaintiffs rely, Loving v. Virginia, 388
U.S. 1, 87 S.Ct. 1817, 18 L. Ed.2d 1010 (1967), rested upon the premise,
derived from Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86
L. Ed. 1655, 1660 (1942), that members of the opposite sex have a
constitutionally protected right to marry. Proceeding on this premise, the Court
invalidated a Virginia statute that prohibited a "white person" from marrying
anyone other than another "white person" on the grounds that "restricting the
freedom to marry solely because of racial classifications violates the central
meaning of the Equal Protection Clause [of the Fourteenth Amendment.]"
Loving, supra, 388 U.S. at 12, 87 S.Ct. at 1823, 18 L. Ed.2d at 1018. Noting
that "[m]arriage is one of the 'basic civil rights of man,' fundamental to our very
existence and survival[,]" the Court also held that the statute violated the Due
Process Clause. Ibid. (quoting Skinner, supra, 316 U.S. at 541, 62 S.Ct. at
1113, 86 L. Ed.2d at 1660). However, nothing in Loving suggests that the
Fourteenth Amendment prohibits a State from limiting the institution of
marriage to a State-recognized union between a man and a woman. In fact,
several years after Loving, when the Minnesota Supreme Court rejected a
constitutional challenge to that State's prohibition against marriage by
members of the same sex in a decision that distinguished Loving on the
-31-
ground that "there is a clear distinction between a marital restriction based
merely upon race and one based upon the fundamental difference in sex,"
Nelson, supra, 191 N.W.2d at 187, the Supreme Court dismissed an appeal
from that decision "for want of a substantial federal question," 409 U.S. 810,
93 S.Ct. 37, 34 L. Ed.2d 65; see also Adams v. Howerton, 673 F.2d 1036,
1039 n. 2 (9th Cir.), cert. denied, 458 U.S. 1111, 102 S.Ct. 3494, 73 L. Ed.2d
1373 (1982). Subsequent Supreme Court decisions also indicate that the
constitutionally protected right recognized by the Court is the right of members
of the opposite sex to marry. See Turner, supra, 482 U.S. at 95-96, 107 S. Ct .
at 2265, 96 L. Ed.2d at 83; Zablocki, supra, 434 U.S. at 383-86, 98 S.Ct. at
679-81, 54 L. Ed.2d 628-31; see also Standhardt, supra, 77 P.3d at 458
(noting that Loving "was anchored to the concept of marriage as a union
involving persons of the opposite sex," and that "[i]n contrast, recognizing a
right to marry someone of the same sex would not expand the established
right to marry, but would redefine the legal meaning of 'marriage.' ").
*10 The only opinion by a member of the Court that directly addresses whether
the Fourteenth Amendment may be found to compel recognition of a right of
same-sex couples to marry is Justice Scalia's opinion in Lawrence v. Texas,
539 U.S. 558, 604-05, 123 S.Ct. 2472, 2497-98, 156 L. Ed.2d 508, 542-43
(2003) (Scalia, J., dissenting). In dissenting from the majority's holding that a
Texas statute making it a crime for two persons of the same sex to engage in
certain types of intimate sexual conduct violated the Due Process Clause, he
stated:
Today's opinion dismantles the structure of constitutional law that has
permitted a distinction to be made between heterosexual and
homosexual unions, insofar as formal recognition in marriage is
concerned.
[539 U.S. at 604, 123 S.Ct. at 2498, 156 L. Ed.2d at 542.] However, Justice
Kennedy's majority opinion rejected this contention, stating:
[This case] does not involve whether the government must give
formal recognition to any relationship that homosexual persons seek
to enter.
[539 U.S. at 578, 123 S.Ct. at 2484, 156 L. Ed.2d at 525.] Even more
pointedly, Justice O'Connor stated in a concurring opinion that "preserving
the traditional institution of marriage" is a "legitimate state interest" and that
"other reasons exist to promote the institution of marriage beyond mere moral
disapproval of an excluded group." 539 U.S. at 585, 123 S.Ct. at 2487-88, 156
L. Ed.2d at 530. Therefore, there is nothing in Loving or Lawrence that
indicates that the Fourteenth Amendment bars a state from prohibiting
marriage between members of the same sex, and significantly, plaintiffs have
disavowed reliance upon the United States Constitution in their attack upon
this State's limitation of marriage to members of the opposite sex.
In the only state supreme court decision that has held the limitation of the
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institution of marriage to members of the opposite sex to be violative of a state
constitution, Goodridge, supra, the court's plurality opinion starts with the
premise that marriage is a social institution that reflects "[t]he exclusive
commitment of two individuals to each other [that] nurtures love and mutual
support[,]" 798 N.E.2d at 948, or as restated later in the opinion, "a deeply
personal commitment to another human being and a highly public celebration
of the ideals of mutuality, companionship, intimacy, fidelity, and family," id. at
954. The opinion then frames the question in the case as whether the State
has demonstrated a sufficient justification for withholding the benefits of
marriage, as thus conceived, from same-sex couples. The opinion proceeds to
consider the justifications relied upon by the State for limitation of marriage to
opposite-sex couples--"(1) providing a 'favorable setting for procreation'; (2)
ensuring the optimal setting for child rearing, which the department defines as
'a two-parent family with one parent of each sex'; and (3) preserving scarce
State and private financial resources"--and finds each one to be
constitutionally inadequate. Id. at 961-68.
*11 The essential premise of the Goodridge plurality opinion--that the
institution of marriage is simply an "exclusive commitment of two individuals to
each other," id. at 943--constitutes a normative judgment that conflicts with the
traditional and still prevailing religious and societal view of marriage as a union
between a man and a woman that plays a vital role in propagating the species
and provides the ideal setting for raising children. Consequently, unlike Loving,
Goodridge does not establish a right of equal access to marriage, regardless
of race or any other invidiously discriminatory factor, but instead significantly
alters the nature of this social institution. Indeed, the plurality opinion itself
acknowledges that "our decision today marks a significant change in the
definition of marriage as it has been inherited from the common law, and
understood by many societies for centuries." Id. at 965.
The understanding of the nature of marriage as a State-recognized union
between a man and a woman reflects the understanding of the delegates to
the 1947 Constitutional Convention who proposed article I, paragraph 1, of our
Constitution and the voters who approved it. This constitutional provision does
not give a court the license to create a new constitutional right to same-sex
marriage simply because its members may feel that the State should grant
same-sex couples the same form of recognition as opposite-sex couples who
choose to marry. Moreover, to whatever extent it may be appropriate to
consider current social mores and values in interpreting the liberty and equality
protections of article I, paragraph 1, there is no basis for concluding that our
society now accepts the view that there is no essential difference between a
traditional marriage of a man and woman and a marriage between members of
the same sex. To the contrary, Congress's enactment in 1996 of the Defense
of Marriage Act, the New Jersey Legislature's recent enactment of the
Domestic Partnership Act, which confers substantial legal rights upon
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same-sex couples but stops short of recognizing the right of members of the
same sex to marry, and the strongly negative public reactions to the decisions
in Goodridge and in lower courts of other states that have held the limitation of
the institution of marriage to members of the opposite sex to be
unconstitutional, demonstrate that there is not yet any public consensus
favoring recognition of same-sex marriage. Therefore, we reject plaintiffs' claim
that the New Jersey Constitution requires extension of the institution of
marriage to same-sex couples.
Although same-sex couples do not have a constitutional right to marry, they
have significant other legal rights. Same-sex couples may seek to adopt
children together, see In re Application for Change of Name by Bacharach,
344 N.J.Super. 126, 134, 780 A.2d 579 (App.Div.2001); their right to engage in
sexual relations is protected by both the United States and New Jersey
Constitutions, see Lawrence, supra, 539 U.S. at 578, 123 S.Ct. at 2484, 156 L.
Ed.2d at 525-26; Greenberg, supra, 99 N.J. at 571-72, 494 A.2d 294; State v.
Saunders, 75 N.J. 200, 214, 381 A.2d 333 (1977); and they may enter into
domestic partnership unions under the Domestic Partnership Act that entitle
them to many of the same legal benefits enjoyed by married opposite-sex
couples. Moreover, domestic partners may assert claims that the due process
and equal protection guarantees of article I, paragraph 1, of the New Jersey
Constitution entitle them to additional legal benefits provided by marriage. See
Baker v. State, supra, 744 A.2d at 869-86.
*12 A time may come when our society accepts the view that same-sex
couples should be allowed to marry. If there were such an evolution in public
attitudes, our Legislature presumably would amend the marriage laws to
recognize same-sex marriage just as it recognized the increasing public
acceptance of same-sex unions by enacting the Domestic Partnership Act.
However, absent legislative action, there is no basis for construing the New
Jersey Constitution to compel the State to authorize marriages between
members of the same sex.
Affirmed.
PARRILLO, J.A.D., concurring.
I join in the majority decision essentially for the reasons so clearly expressed
by Judge Skillman. I write separately to underscore the nature of the right
being asserted, the continuing viability of the State's interest in preserving its
originating force, and the proper divide between judicial and legislative activity
in a matter of such profound social significance.
Plaintiffs
challenge
New Jersey's marriage laws,
N.J.S.A. 37:1-1 to -27, solely on
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state
constitutional
grounds
because they implicitly recognize
there is no federally protected
right of same-sex couples to
marry. So limited, their argument
posits a right that is really twofold:
the right to marry and the rights of
marriage. Plaintiffs want the
former, in part, because it
bestows the latter, and because if
the latter are fundamental, the
former must be as well. Although
the rhetoric of justification tends
to collapse the nature of the rights
in question, they are, upon closer
examination, quite separate and
not at all the same.
The rights of marriage--the so-called secular implications--are actually not
contained in the marriage laws under attack, which simply delineate which
persons may not marry each other, see, e.g., N.J.S.A. 37:1-1, but rather are
conferred by a host of statutes not here in issue. Unquestionably, the
economic, legal and regulatory benefits incident to a marriage license are
significant. But, as Judge Skillman's opinion points out, many of these rights
and protections are afforded to committed same-sex couples under our
Domestic Partnership Act, N.J.S.A. 26:8A-1 to -12, as well as evolving case
law that recognizes, among other privileges, the right of same-sex couples to
seek to adopt children together. See In re Application for a Change of Name
by Bacharach, 344 N.J.Super. 126, 134, 780 A.2d 579 (App.Div.2001) (citing
In Re Adoption of Two Children by H.N.R., 285 N.J.Super. 1, 6, 666 A.2d 535
(App.Div.1999)). Of course, to the extent those laws unconstitutionally withhold
any of the publicly-conferred tangible or intangible benefits of marriage from
same-sex couples, plaintiffs remain free to redress any such deprivation on an
ad-hoc basis, by challenging the particular statutory exclusion resulting in
disparate or unfair treatment. In fact, it would seem a much more effective
approach to address the claimed denial directly, rather than to simply advance
the notion as an additional basis for finding a constitutional mandate for state
recognition of same-sex marriage.
*13 The latter's symbolic significance, however, lies at the heart of plaintiffs'
argument. Although New Jersey's Domestic Partnership law affords plaintiffs a
legally-recognized status more or less "marriage-like," it does not carry the title
"marriage." This is, by no means, to suggest the legal conflict is merely
semantic or not as rationally important to the people on each side of the issue.
On the contrary, definitions matter. This is why the conflict over the core
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meaning and purpose of marriage is so highly charged. Indeed,
notwithstanding equal benefits and protections under our law, plaintiffs would
still argue that denial of the right to marry operates per se to deny a
constitutionally protected right; that the right to marry, under New Jersey's
constitution, compels state sanctioning of same-sex marriage. Resolution of
this issue, therefore, requires an understanding of the precise status in issue.
Plaintiffs' claim of a right to marry relies on traditional equality and liberty
jurisprudence, the latter couched in the more recent terminology of privacy,
autonomy, and identity. No doubt, plaintiffs have taken their bearings from the
"close personal relationship" model of marriage espoused in Goodridge v.
Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (Mass.2003).
Citing "respect for individual autonomy," id. at 949, the Goodridge plurality
defined marriage simply as "the exclusive and permanent commitment of the
married partners to one another[ ]," id. at 961; "the voluntary union of two
persons as spouses, to the exclusion of all others [ ]," id. at 969; and "at once
a deeply personal commitment to another human being and a highly public
celebration of ideals of mutuality, companionship, intimacy, fidelity, and
family." Id. at 954. Given this narrow view, it is no wonder the Goodridge
plurality concluded that "our laws of civil marriage do not privilege procreative
heterosexual intercourse between married people above every other form of
adult intimacy and every other means of creating a family." Id. at 961.
This distillation of marriage down to its pure "close personal relationship"
essence, however, strips the social institution "of any goal or end beyond the
intrinsic emotional, psychological, or sexual satisfaction which the relationship
brings to the individuals involved." Monte Neil Stewart, Judicial Redefinition of
Marriage, 21 Can. J. Fam. L. 11, 81 (2004) (quoting D. Cere, "The Conjugal
Tradition in Post Modernity: The Closure of Public Discourse?" at 6 (2003)
(unpublished)). Yet, the marital form traditionally has embraced so much more,
including:
the fundamental facets of [traditional] conjugal life: the fact of sexual
difference; the enormous tide of heterosexual desire in human life,
the massive significance of male female bonding in human life; the
procreativity of heterosexual bonding, the unique social ecology of
heterosexual parenting which bonds children to their biological
parents, and the rich genealogical nature of heterosexual family ties.
*14 Ibid. (citation omitted.)
The simple fact is that the very existence of marriage does "privilege
procreative heterosexual intercourse." Marriage, plainly speaking, is a
privileged state and that is precisely why plaintiffs are waging this battle.
Procreative heterosexual intercourse is and has been historically through all
times and cultures an important feature of that privileged status, and that
characteristic is a fundamental, originating reason why the State privileges
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marriage. Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.
Ed. 1655 (1942); J.B. v. M.B., 170 N.J. 9, 23, 783 A.2d 707 (2001); Lindquist
v. Lindquist, 130 N.J. Eq. 11, 19, 20 A.2d 325 (E. & A.1941); see also Dean v.
District of Columbia, 653 A.2d 307, 337 (D.C.1995). When plaintiffs, in
defense of genderless marriage, argue that the State imposes no obligation on
married couples to procreate, they sorely miss the point. Marriage's vital
purpose is not to mandate procreation but to control or ameliorate its
consequences--the so-called "private welfare" purpose. To maintain otherwise
is to ignore procreation's centrality to marriage.
By seeking public recognition and affirmation of their private relationships,
plaintiffs acknowledge that marriage is more than a merely private declaration,
but an act of public significance and consequence for which the State exerts
an important regulatory role. Indeed, to seek such official assent is to concede
the authority of those whose regard is sought.
Because marriage has secular implications--the so-called "rights of
marriage"--the State has a legitimate interest in determining eligibility criteria.
In fact, no one really disputes that the State is empowered to privilege
marriage by restricting access to, or drawing principled boundaries around, it.
Greenberg v. Kimmelman, 99 N.J. 522, 572 (1985). Indeed, there are reasons
for limiting unfettered access to marriage. Otherwise, by allowing the
multiplicity of human choices that bear no resemblance to marriage to qualify,
the institution would become non-recognizable and unable to perform its vital
function. Thus, New Jersey statutes ban bigamous marriages, N.J.S.A.
2C:24-1, common law marriages, N.J.S.A. 37:1-10, incestuous marriages,
N.J.S.A . 37:1-1, and marriages to persons adjudged to be mentally
incompetent or with a venereal disease in a communicable stage, N.J.S.A.
37:1-9. The governmental interest in these restrictions has been repeatedly
and widely recognized.
To be sure, longstanding traditions restricting the right to marry are not
immune from constitutional challenge. Yet, plaintiffs' reliance on Loving v.
Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L. Ed.2d 1010 (1967), does not
advance this proposition. Anti-miscegenation laws simply may not be equated
with laws reserving marriage to opposite-sex couples. Marriage has an
inherent nature, and race is not intrinsic to that status. The so-called "tradition"
of laws prohibiting interracial marriages "was contradicted by a text--an Equal
Protection Clause that implicitly establishes racial equality as a constitutional
value." Planned Parenthood v. Casey, 505 U.S. 833, 980, n. 1, 112 S.Ct.
2791, 120 L. Ed.2d 674 (1992) (Scalia, J., dissenting in part).
*15 In contradistinction, a core feature of marriage is its binary, opposite-sex
nature. Interestingly, plaintiffs admittedly have no quarrel with the legal
requirement that marriage be limited to a union of two people. But, the binary
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idea of marriage arose precisely because there are two sexes. Plaintiffs simply
have not posited an alternative theory of marriage that would include members
of the same sex, but still limit the arrangement to couples, or that would
otherwise justify the distinction. If, however, the meaning of marriage and the
right to marital status is sufficiently defined without reference to gender, then
what principled objection could there be to removing its binary barrier as well?
If, for instance, marriage were only defined with reference to emotional or
financial interdependence, couched only in terms of privacy, intimacy, and
autonomy, then what non-arbitrary ground is there for denying the benefit to
polygamous or endogamous unions whose members claim the arrangement is
necessary for their self-fulfillment?
The legal nature of marriage cannot be totally malleable lest the durability and
viability of this fundamental social institution be seriously compromised, if not
entirely destabilized. Because the reasons for the existence of marriage retain
substantial vitality to date, because the "specialness" of its opposite-sex
feature makes it meaningful and achieves important public purposes, and
because the meaning and value of alternative theories are speculative and
unknown, the State's interest in maintaining the traditional gender block is
rationally based.
It may well be, as some posit, that marriage "is socially constructed, and thus
transformable[.]" Evan Wolfson, Crossing the Threshold: Equal Marriage
Rights for Lesbians and Gay Men and the Intra-Community Critique, 21 N.Y.U.
Rev. of L. & Soc. Change, 567, 589 (1994). Perhaps so. And it would be
foolish not to recognize a certain dynamism in the evolving view of marriage
and its role in society. Indeed, the basic reality of procreative capacity in right
to marry cases to date may, in the future, take on different meaning or
significance given the displacing potential of cross-cultural forces in our
society, such as contraception and assisted reproductive technology. Suffice it
to say, however, there is no plausible basis for suggesting the link is now so
weak as to require the line be drawn any differently. Nothing before the court
compels us to remove the "deep logic" of gender as a necessary component of
marriage, or to recognize, on equal footing, any adult relationship
characterized merely by interdependence, mutuality, intimacy, and endurance.
Any societal judgment to level the playing field must appreciate the proper
divide between judicial and legislative activity. "[L]aw has a purpose and a
power to preserve or change public meanings and thus a purpose and a power
to preserve or change social institutions." Stewart, supra, at 80. In this vein, it
is the Legislature's prerogative to define and advance governmental ends,
while the judiciary ensures the means selected bear a just and reasonable
relationship to the governmental objective, or, in the case of suspect
classifications or fundamental rights, are supported by compelling State
interests. It is, therefore, a proper role for the Legislature to weigh the societal
-38-
costs against the societal benefits flowing from a profound change in the public
meaning of marriage. On the other hand, the judiciary is not in the business of
preferring, much less anointing, one value as more valid than another,
particularly where, at least in the foreseeable future, the conflict is not
susceptible to resolution by scientific or objective means. The choice must
come from democratic persuasion, not judicial fiat.
COLLESTER, J.A.D., dissenting.
*16 Although my colleagues and I arrive at a different conclusion, we are in
agreement that any individual views we have on the morality or social
implications of same-sex marriage must play no part in our analysis of the
constitutional issues presented. In the ongoing public debate there are
persons of intelligence, sensitivity and good will on each side of the issue.
Some believe that lawful marriage between persons of the same gender would
undermine the essential nature of both marriage and family life. Others argue
that it would give proper recognition to committed same-sex relationships and
by doing so enhance marriage. Our function as judges is to interpret the
Constitution, not rewrite it, and our interpretation must be principled rather than
skewed to fit an individual philosophy or a desired result. 12 N.J. Sports
Authority v. McCrane, 61 N.J. 1, 8, 292 A.2d 545 (1972). Nonetheless, we
must interpret our Constitution to uphold individual rights, liberties and
guarantees for all citizens even though our conclusion may disappoint or
offend some earnest and thoughtful citizens.
For all of its personal, familial and spiritual value, marriage is a creature of
State laws governing its entrance, protecting its special status, and, when
necessary, specifying the terms of its dissolution. Marriage is also a
fundamental civil right protected by both the Federal and New Jersey
Constitutions. Zablocki v. Redhail, 434 U.S. 374, 383, 90 S.Ct. 673, 680, 54 L.
Ed .2d 618 (1978); J.B. v. M.B., 170 N.J. 9, 23-24, 783 A.2d 707 (2001). Laws
may not "interfere directly and substantially with the right to marry." Zablocki,
supra, 434 U.S. at 387, 90 S.Ct. at 681, 54 L. Ed.2d at 631.
The right to marry is effectively meaningless unless it includes the freedom to
marry a person of one's choice. Goodridge v. Dep't of Pub. Health, 440 Mass.
309, 798 N.E.2d 941, 958 (Mass.2003); see also, Perez v. Lippold, 32 Cal.2d
711, 198 P.2d 17, 21 (Cal.1948). In Loving v. Virginia, 388 U.S. 1, 18, 87 S.Ct.
1817, 1823-24, 18 L. Ed.2d 1010, 1018 (1967), the United States Supreme
Court struck down laws prohibiting interracial marriage under both the Due
12
Do you believe that the judges of this court are “just interpreting” or, to put it another way, that
the “individual views” of each “on the morality or social implications of same-sex marriage . . . play no
part in his “analysis of the constitutional issues presented”? Is not the contrary manifestly obvious?
Give me a break.
-39-
Process and Equal Protection Clauses of the Federal Constitution. Zablocki,
supra, 434 U.S. at 392, 90 S.Ct. at 685, 54 L. Ed.2d at 635, invalidated a
Wisconsin law requiring a person under a child support order to meet financial
requirements and seek court approval in order to marry. Prison inmates cannot
be foreclosed from marrying a person of their choosing, who is either inside or
outside the institution. Turner v. Safley, 482 U.S. 78, 94, 107 S.Ct. 2254, 2265,
96 L. Ed.2d 64, 83 (1987); see also, Vasquez v. Dep't of Corrections, 348
N.J.Super. 70, 76, 791 A.2d 281 (App.Div.2000) (holding the denial of a
request by an inmate serving a life sentence violated her constitutional right to
marry).
Statutory restrictions on the right to marry are few, and they are grounded in
the State's proper regulatory authority, commonly called its police power, to
protect general health, safety and welfare. Marriage is prohibited to a child, a
close relative, a mental incompetent or a person afflicted with a venereal
disease in a communicable stage. See, N.J.S.A. 37:1-1 to -9. None of the
plaintiffs in this case fall within these proscribed categories, and neither the
State nor the majority opinion suggest a reason of health, safety or general
welfare to justify a prohibition of their right to marry the person of their
choosing.
*17 While New Jersey statutes do not specifically limit marriage to a union of a
man and a woman or expressly prevent a person from marrying someone of
the same sex, it is clear that they do so. M.T. v. J.T., 140 N.J.Super. 77, 8384, 355 A.2d 204 (App.Div.), certif. denied, 71 N.J. 345, 364 A.2d 1076 (1976).
Plaintiffs argue that this prohibition deprives them of their fundamental right to
marry a person of their choosing in contravention of their rights of liberty,
privacy and equal protection of laws, guaranteed by the New Jersey
Constitution. See, Sojourner A. v. Dep't of Human Services, 177 N.J. 318, 332,
828 A.2d 306 (2003); Greenberg v. Kimmelman, 99 N.J. 522, 568 (1995); In re
Quinlan, 70 N.J. 10, 39-40, 355 A.2d 647 (1976).
...
My colleagues and I agree as to the fundamental nature of the right to marry,
but they reject plaintiffs' constitutional claims by defining marriage strictly as
heterosexual unions. By this definition, plaintiffs are not deprived of the right to
marry as long as it is to a member of the opposite sex. But since they cannot
marry the person of their choice, it is really no right at all. By so defining
marriage, the majority views plaintiffs' assertion of a right to marry as a claim of
a different kind of right or to a different kind of marriage, which is beyond
judicial authority to recognize as lawful. This analysis mirrors decisions in other
jurisdictions which have summarily rejected similar constitutional claims based
on other State constitutions. See, e.g., Standardt v. Supreme Court ex rel.
County of Maricopa, 206 Ariz. 276, 77 P.3d 451 (Ariz.Ct.App.2003), review
-40-
denied (Ariz.2004); Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 186
(Minn.1971), appeal dismissed, 409 U.S. 810, 93 S.Ct. 37, 34 L. Ed.2d 65
(1972). But see, Goodridge v. Dep't of Pub. Health, supra, 798 N.E.2d at 949.
*18 The argument is circular: plaintiffs cannot marry because by definition they
cannot marry. But it has the advantage of simplicity. If marriage by definition
excludes plaintiffs from marrying persons of their choosing, then, unlike all
others, they have no fundamental or constitutionally protected right and must
seek creation of that right through the political process and a legislative
redefinition of marriage. Therefore, opposite-sex marriage is a tautology.
Same-sex marriage, an oxymoron. We need go no further. Case closed.
I disagree with both the analysis and the result. To cabin the right to marry
within a definition of marriage which prohibits plaintiffs from even asserting a
constitutional claim for entitlement to marry the person of their choosing robs
them of constitutional protections and deprives them of the same rights of
marriage enjoyed by the other individuals of this State, even those confined in
State prisons.
After recasting the issue as to whether plaintiffs' claim fits within the restricted
definition of marriage, not surprisingly the majority finds no support for
marriage between same-sex persons that is "deeply rooted in this Nation's
history and tradition" or "implicit in the concept of ordered liberty," and thereby
declares that plaintiffs have no fundamental right of marriage.
The analysis is reminiscent of arguments in support of anti-miscegenation laws
before Loving. Those laws defined marriage as the union of a man and woman
of the same race, and proponents presented a long history in support of the
definition. Indeed, in Loving the State of Virginia argued that there was no
fundamental right to interracial marriage because "the historic tradition of
marriage" did not contemplate such marriages. In rejecting the argument, the
Supreme Court framed the issue not as a claim of right to interracial marriage
but rather as an assertion of a fundamental right to marriage. Loving, supra,
388 U.S. at 12, 87 S.Ct. at 1823-24, 18 L. Ed.2d at 1018 (1967). The Court
declared that the right to marry was one of the "basic civil rights of man" and
could not be restricted or prohibited by racial classification. Loving, supra, 388
U.S. at 12, 87 S.Ct. at 1824, 18 L. Ed.2d at 1018, quoting Skinner v. State of
Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1101, 1113, 86 L. Ed. 1655, 1660
(1942). Therefore, while Loving rejected a prohibition of marriage based on
race, the analysis is relevant to the instant case because Loving also rejected
a definition of marriage foreclosing an individual's right to marry a person of
one's choosing and addressed the issue of the constitutional viability of the
restriction in terms of the fundamental right to marriage itself rather than to a
separate right or different form of marriage.
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The majority grounds its definition of marriage excluding persons of the same
sex upon historic or religious tradition as well as the societal value attached to
procreation. In my view, the first reason is unpersuasive, the second,
irrelevant.
*19 With respect to religious beliefs and traditions, it is clear that no matter
how marriage is defined, the marriage ceremony has spiritual significance to
most, and many consider it a sacrament or exercise of religious faith. Turner v.
Safley, 482 U.S. 78, 96, 107 S.Ct. 2254, 2265, 96 L. Ed.2d 64, 83 (1987). To a
great number of people, same-sex marriage is contrary to religious faith and
teachings. Their objections must be respected, not demeaned. But it is
slippery constitutional footing to base a definition of marriage on religious
tradition, and, more to the point, plaintiffs seek access only to civil marriage.
None of them, not even the three ordained clergy, maintain that same-sex
marriage is supported by religious doctrine or tradition, and in this action they
do not seek acceptance or recognition within a particular religious community.
What they do say is that the spiritual dimension of marriage is unjustly denied
to them by civil laws prohibiting them from marrying the person of their choice.
History should be considered a guide, not a harness, to recognition of
constitutional rights, and patterns of the past cannot justify contemporary
violations of constitutional guarantees. As Justice Holmes famously declared
over a century ago,
[i]t is revolting to have no better reason for a rule of law then that so it
was laid down in the name of Henry IV. It is more revolting if [its
foundation has] vanished long since, and the rule simply persists from
blind imitation of the past.
Justice Oliver Wendell Holmes, The Path of the Law, 10 Harv. L.Rev. 457, 469
(1897).
That said, it would be folly to challenge that the common historic and legal
conception of marriage is as a heterosexual institution. Moreover, I fully agree
with the majority that the idea of marriage between persons of the same sex
would have been alien both to those who drafted and those who ratified the
New Jersey Constitution of 1947. But so were spaceships, computers and
reproductive technology. A constitutional right of privacy was not recognized by
the United States Supreme Court until 1965 in Griswold v. Connecticut, 381
U.S. 479, 484-85, 85 S.Ct. 1678, 1681, 14 L. Ed.2d 510, 514-15 (1965), and it
was almost a decade later when our Supreme Court discerned that right in
Article I, paragraph 1 of our Constitution. In re Quinlan, supra, 70 N.J. at
39-40, 355 A.2d 647. It is also farfetched to assume that the framers of the
Constitution envisioned a constitutional right for a woman to choose to have an
abortion since at that time abortion was a crime which was vigorously
prosecuted. State v. Moretti, 52 N.J. 182, 244 A.2d 499 (1968), cert. denied,
393 U.S. 952, 89 S.Ct. 376, 21 L. Ed.2d 363 (1968); State v. Raymond, 113
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N.J.Super. 222, 227, 273 A.2d 399 (App.Div.1972).
Certainly, marriage was not perceived as a partnership to the extent that it
is today. The common law concept of marriage as a unity was still prevalent.
Interspousal immunity from civil suit, then considered fundamental to marriage,
was not rejected until decades later. Immer v. Risko, 56 N.J. 482, 488, 267
A.2d 481 (1970); Merenoff v. Merenoff, 76 N.J. 535, 557, 388 A.2d 951 (1978).
The unity of marriage precluded spouses from being co-conspirators until the
1970s. See, State v. Pittman, 124 N.J.Super. 334, 336, 306 A.2d 500 (Law
Div.1973). A more egregious example was the marriage defense to rape,
whereby a husband could avoid prosecution because marriage was a unity
and consent by the wife to sexual intercourse was implied. See, State v. Smith,
85 N.J. 193, 426 A.2d 38 (1981).
*20 By far the greatest changes in marriage as it has evolved from its common
law unity to a partnership were in terms of its dissolution. Equitable distribution
of property acquired during marriage, rehabilitative alimony, child support
guidelines and joint custody are just some of the issues which judges routinely
consider, but they were outside the scope of divorce litigation law a generation
past. Indeed, divorce was relatively uncommon when our State Constitution
was adopted. Current estimates are that up to fifty percent of marriages end in
divorce, most of which are granted on no-fault grounds, which did not exist in
1947. The dynamics within marriage have also undergone great changes.
Married couples, with or without children, are commonly both employed. Single
parent households have multiplied as divorce rates have climbed, and
adoptions are now more readily available to unmarried persons, including
same-sex couples. Rather than a static concept, marriage has been described
as an "evolving paradigm," Goodridge, supra, 798 N.E.2d at 966-67, and
another paradigm, that of the nuclear family, has also undergone vast
changes. See, V.C. v. M.J .B., 163 N.J. 200, 232-34, 748 A.2d 539 (2000)
(Long, J., concurring).
While public debate on same-sex marriage is polarized, there should be
agreement as to the greater acceptance of gay and lesbian relationships in
popular culture and as individuals living in the communities of our State. The
2000 census reported that at least 16,000 same-sex couples reside in New
Jersey, a figure considered markedly conservative. Ruth Padawer, Census
2000: Gay Couples, At Long Last, Feel Acknowledged, The Record, August
15, 2001. In its amicus curiae brief, the City of Asbury Park contends in
support of plaintiffs' position that the right of same-sex marriage would assist in
building stronger communities in the State.
There have been significant alterations to the legal landscape in the past
decades since the 1947 Constitution respecting claims of right by gays and
lesbians in both constitutional adjudications and domestic relations cases.
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Most notably is Lawrence v. Texas, 539 U.S. 538, 123 S.Ct. 2472, 156 L.
Ed.2d 508 (2003) in which the United States Supreme Court specifically
overruled Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L. Ed.2d 140
(1986), its precedent of less than twenty years earlier, and held that the
criminalization of intimate sexual contact between adult homosexuals in private
impinged upon their liberty interests protected by the Due Process Clause of
the Fourteenth Amendment. Lawrence, supra, 539 U.S. at 578, 106 S.Ct. at
2484, 156 L. Ed.2d at 525. In disclaiming the historical rationale of Bowers, the
Lawrence majority opinion by Justice Kennedy quoted language applicable to
the case at bar from Justice Stevens' Bowers dissent:
"Our prior cases make two propositions abundantly clear. First, the
fact that the governing majority in a State has traditionally viewed a
particular practice as immoral is not a sufficient reason for upholding
a law prohibiting the practice; neither history nor tradition could save a
law prohibiting miscegenation from constitutional attack. Second,
individual decisions by married persons, concerning the intimacies of
their physical relationship, even when not intended to produce
offspring, are a form of 'liberty' protected by the Due Process Clause
of the Fourteenth Amendment. Moreover, this protection extends to
intimate choices by unmarried as well as married persons."
*21 Lawrence, supra, 539 U.S. at 577-78, 123 S.Ct. at 2483, 156 L. Ed.2d at
525 (quoting Bowers v. Hardwick, supra, 478 U.S. at 216, 106 S.Ct. at 2858,
92 L. Ed.2d at 162) (Stevens, J., dissenting.)
Judicial decisions of this State have enhanced the rights of gays and lesbians
in matters of family law. As witnessed by the Lael family, sexual orientation is
not a bar to adoption. Adoption of Two Children by H.N.R., 285 N.J.Super. 1,
11, 666 A.2d 535 (App.Div.1993); Matter of Adoption of Child by J.M.G., 267
N.J.Super. 622, 631-32, 632 A.2d 550 (Ch.Div.1993); see also, In re
Application for Change of Name by Bachrach, 344 N.J.Super. 126, 134, 780
A.2d 579 (App.Div.2001). Similarly, the custody and visitation rights of natural
or psychological parents cannot be denied or abridged based on sexual
orientation. V.C., supra, 163 N.J. at 230, 748 A.2d 539; M.P. v. S.P., 169
N.J.Super. 425, 439, 404 A.2d 1256 (App.Div.1979); In re J.S. & C., 129
N.J.Super. 486, 489, 324 A.2d 90 (Ch.Div.1974), aff'd, 142 N.J.Super. 499,
362 A.2d 54 (App.Div.1976). Moreover, a same-sex partner may lawfully
change a surname to match that of his or her partner. Bachrach, supra, 344
N.J.Super. at 134, 780 A.2d 579.
The enhancement of rights in family law for gays and lesbians is
representative of a more functional view of family than when our Constitution
was adopted. See, e.g., Braschi v. Stahl Assoc., 74 N.Y.2d 201, 544 N.Y.S.2d
784, 543 N.E.2d 49, 54 (N.Y.1989) (holding that for purposes of the New York
rent control laws, a surviving homosexual could not be evicted after his
long-term partner died because in "the reality of family life" he qualified as a
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spouse or member of the immediate family). See generally, Martha Minow,
The Free Exercise of Families, 1991 U. Ill. L.Rev. 925, 931-32 (1991); Note,
Looking For a Family Resemblance, 104 Harv. L.Rev. 1640 (1991); Barbara J.
Cox, Love Makes a Family--Nothing More, Nothing Less: How the Judicial
System Has Refused to Protect Nonlegal Parents in Alternative Families, 8
J.L. & Pol., 5 (1991).
Our Supreme Court explored the dimensions and functional reality of "family"
in V.C., supra, 163 N.J. at 227-28, 748 A.2d 539, in which it held that a former
same-sex partner had standing as a psychological parent to seek legal
custody and visitation of twins born to her former partner following artificial
insemination. In her separate concurring opinion, Justice Long gave substance
to the functional view of family, stating:
[W]e should not be misled into thinking that any particular model of
family life is the only one that embodies "family values." Those
qualities of family life on which society places a premium--its stability,
the love and affection shared by its members, their focus on each
other, the emotional and physical care and nurturance that parents
provide their offspring, the creation of a safe harbor for all involved,
the wellspring of support family life provides its members, the ideal of
absolute fealty in good and bad times that infuses the familial
relationship (all of which justify isolation from outside intrusion)--are
merely characteristics of family life that, except for its communal
aspect, are unrelated to the particular form a family takes.
*22 Id. at 232, 748 A.2d 539.
The "winds of change" in the traditional understanding of family and marriage
which we noted almost thirty years ago in M.T. v. J.T., 140 N.J.Super. 77,
83-84, 355 A.2d 204 (App.Div.), certif. denied, 71 N.J. 345, 364 A.2d 1076
(1976), have been felt by the Legislature, which enacted the Domestic
Partnership Act, L.2003, c. 246, while this appeal was pending. The Act
confers some but not all state legal rights afforded married persons to those
who qualify and register as domestic partners. N.J.S.A. 26:8A-1 to -12.
Therefore, while conclusions drawn from the past admittedly depend to a
degree on where one focuses the telescope, history since 1947 points to
changes in the reality of marriage and family life as well as greater acceptance
of committed same-sex relationships. I see no basis in the history of marriage
to justify a definition which denies plaintiffs the right to enter into lawful
marriage in this State with the person of their choice.
Although the Attorney General disclaims the promotion of procreation as a
rationale for prohibiting same-sex marriage, the majority does give it weight,
stating that "our society considers marriage between a man and woman to play
a vital role in propagating the species and in providing the ideal environment
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for raising children." I agree with the Attorney General. Procreation is irrelevant
to the issue before us.
Promotion of procreation as a factor defining marriage to exclude same-sex
applicants is relied upon in those cases cited by the majority which recognize
that history or tradition cannot alone justify its restrictive definition of marriage
or distinguish it from the argument based on history which was rejected by the
Supreme Court in Loving. See, e.g., Baker v. Nelson, 291 Minn. 310, 191
N.W.2d 185, 186-87 (Minn.1971) ("procreation and the rearing of children
within a family" provides "a clear distinction between a marital distinction
based merely on race and one based on the fundamental difference in sex.").
See generally, William H. Hohengarten, Same-Sex Marriage and the Right of
Privacy, 103 Yale L.J. 1495, 1513-23 (1994).
However, there is not, nor could there be, a threshold requirement to marriage
of the intention or ability to procreate. See, M.T., supra, 140 N.J.Super. at
83-84, 355 A.2d 204. Of course many heterosexuals marry for reasons
unrelated to having children. Some never intend to do so. Some are unable to
do so by reason of physical inability, age or health. Moreover, tying the
essence of marriage to procreation runs into cases upholding as a right of
privacy the election not to procreate. See, Griswold, supra, 381 U.S. at 485, 85
S.Ct. at 1682, 14 L. Ed.2d at 515 (protecting the right of married persons to
use contraceptives); Eisenstadt v. Baird, 405 U.S. 438, 454-55, 92 S.Ct. 1029,
1039, 31 L. Ed.2d 349, 363 (1972) (extending the same rights to persons who
are not married), Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 727, 35 L.
Ed.2d 147, 177 (1972) (upholding a woman's right to choose an abortion). See
also, Right to Choose v. Byrne, 91 N.J. 287, 305-06, 450 A.2d 925 (1982).
*23 Also if procreation or the ability to procreate is central to marriage, logic
dictates that the inability to procreate would constitute grounds for its
termination. However, as opposed to the inability or unwillingness to engage in
sexual intercourse, the inability or refusal to procreate is not a legal basis for
divorce or annulment. See, e.g., T. v. M., 100 N.J.Super. 530, 538, 242 A.2d
670 (Ch.Div.1968). Finally, the claim that the promotion of procreation is a vital
element of marriage and justifies exclusion of persons of the same gender falls
on its face when confronted with reproductive science and technology. The
fact is some persons in committed same-sex relationships can and do legally
and functionally procreate. Cindy Meneghin, Maureen Kilian, Karen
Nicholson-McFadden and Marcye Nicholson-McFadden, all plaintiffs in this
case, each gave birth to their children following artificial insemination.
Moreover, the majority mentions the conventional wisdom of "the role that
marriage plays in procreation and providing the optimal environment for child
rearing," but no authority is given to justify this "optimal" status. This presents
simply as an article of faith and one which ignores the reality of present family
-46-
life parenting, which includes adoption, step-parenting and the myriad of other
relationships of parenting noted by our Supreme Court in V.C . Further, the
argument that opposite-sex persons provide a more suitable environment for
raising children because they are married simply underscores that plaintiffs
and their children are unjustly treated by denying them a right to marry their
committed partners. Finally, there is nothing in the record to indicate that the
eight plaintiffs in this case currently raising or having raised children as natural
parents, adoptive parents or step-parents, are providing an environment for
growth and happiness of the children that is anything less than optimal.
Two New Jersey cases are cited by the majority in support of its position. The
first, Rutgers Council of AAUP Chapters v. Rutgers, 298 N.J.Super. 442, 689
A.2d 828 (App.Div.1997), certif. denied, 153 N.J. 48, 707 A.2d 151 (1998),
bears only indirectly. There we declined to interpret the term "dependents" to
include domestic partners for purposes of coverage in the State Health
Benefits Plan, id. at 452, 689 A.2d 828, a result which spawned two separate
concurring opinions terming it "distasteful." Id. at 463, 464, 689 A.2d 828
(Baime, J.A .D., and Levy, J.A.D., concurring.). I submit that the comments in
the Rutgers majority opinion relating to a same-sex marriage were simply dicta
and not authoritative or persuasive in this case.
The other case, M.T. v. J.T., 140 N.J.Super. 77, 355 A.2d 204 (App.Div.) certif.
denied, 71 N.J. 345, 364 A.2d 1076 (1976), is cited and quoted for its support
of the historic understanding of marriage as the lawful union of a man and a
woman. Interestingly, M.T. was both. Born a man, he cohabited with J.T. in a
homosexual relationship for five years and then underwent transsexual surgery
which involved removal of his male sex organs and the construction and
placement of "a vagina and labia adequate for traditional penile/vaginal
intercourse." Id. at 80, 355 A.2d 204. M.T. and J.T. later married in New York
and continued their cohabitation, this time as husband and wife, for two years
in New Jersey during which time they regularly engaged in sexual intercourse.
Id. at 79, 355 A.2d 204. After they separated, M.T. filed a support complaint as
a non-working wife. J.T. countered that he had no obligation to pay support
because M.T. was in reality a man and that therefore their marriage was void.
We held that M.T. was a woman, that the marriage was valid and that she was
entitled to support for the following reason:
*24 Plaintiff has become physically and psychologically unified and
fully capable of sexual activity with her reconciled sexual attributes of
gender and anatomy. Consequently, plaintiff should be considered a
member of the female sex for marital purposes. It follows that such an
individual would have the capacity to enter into a valid marriage
relationship with a person of the opposite sex and did so here.
Id. at 89-90, 355 A.2d 204.
I gather from M.T. that a relationship qualifies as a lawful marriage if the
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genitalia of the partners are different so that they can engage in sexual
intercourse. Accordingly, history and procreation are irrelevant provided
surgery is successful, and the new woman and her partner are then entitled to
a constitutional right to marry that neither he nor she had in the pre-op room.
Constitutional rights should not be limited by genitalia or the ability to engage
in a particular form of sexual intimacy. See, Lawrence, supra, 539 U.S. at 575,
123 S.Ct. at 2482, at 156 L. Ed.2d at 523.
The arguments based on tradition, history, promotion of procreation or existing
case law do not justify a definition of marriage which proscribes plaintiffs from
asserting their right to marry the person of their choosing under Article I,
paragraph 1 of the Constitution. That provision reads as follows:
All persons are by nature free and independent, and have certain
natural and unalienable rights, among which are those of enjoying
and defending life and liberty, of acquiring, possessing and protecting
property, and of pursuing and obtaining safety and happiness.
The expansive language of this paragraph has been interpreted by our
Supreme Court to guarantee all substantive rights of due process to all
persons as well as equal protection of the laws of this State. Sojourner A.,
supra, 177 N.J. at 332, 828 A.2d 306; Doe v. Poritz, 142 N.J. 1, 8, 662 A.2d
367 (1995); Greenburg, supra, 99 N.J. at 568, 494 A.2d 294. While the
Federal Constitution remains the primary source of individual rights, the New
Jersey Constitution is a separate source of individual freedoms and may
provide more expansive protection of individual liberties. See, e.g., State v.
Novembrino, 105 N.J . 95, 146, 519 A.2d 820 (1987) (exclusionary rule
unaffected by federal good faith exception); Right to Choose v. Byrne, 91 N.J.
287, 300, 450 A.2d 925 (1982) (statute restricting Medicaid funding abortion to
circumstances where necessary to saving life of mother held to be a denial of
equal protection contrary to Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65
L. Ed.2d 784 (1980)); State v. Schmid, 84 N.J. 535, 559, 423 A.2d 615 (1980)
(broader concept of individual rights of speech). See also, Justice Stewart G.
Pollock, Adequate and Independent Grounds as a Means of Balancing the
Relationship Between State and Federal Courts, 63 Tex. L.Rev. 977 (1986);
Justice William J. Brennan, State Constitutions and The Protection of
Individual Rights, 90 Harv. L.Rev. 489 (1977).
*25 Plaintiffs base their due process challenges on the constitutional right of
privacy recognized in Article I, paragraph 1 of the New Jersey Constitution. At
first blush, plaintiffs' claim of a right of privacy in support of a right to marry
may seem anomalous, for privacy is commonly understood with a right to be
left alone as famously discussed in legal parlance by Justice Brandeis in The
Right to Privacy, 4 Harv. L.Rev. 5 (1890). But the constitutional right of privacy
also means the right of an individual to make his or her fundamental life
choices rather than the State making those decisions. See generally,
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Hoehengarten, supra, 103 Yale L.J. at 1524-30; see also, Jeb Rubenfeld, The
Right to Privacy, 102 Harv. L.Rev. 737, 754-56 (1989). So a married couple
may choose not to procreate by using contraception. Griswold, supra, 381 U.S.
at 484-85, 85 S.Ct. at 1681-82, 14 L. Ed.2d at 514-15. A woman may make
her own decision whether to bear or beget a child. Roe, supra, 410 U.S. at
153, 93 S.Ct. at 727, 31 L. Ed.2d at 363 (1973); Right to Choose, supra, 91
N.J. at 305-06, 450 A.2d 925; Planned Parenthood v. Casey, 505 U.S. 833,
112 S.Ct. 2791, 120 L. Ed.2d 674 (1992). Two consenting adults, heterosexual
or homosexual, may elect to engage in sexual relations. Lawrence, supra, 539
U.S. at 578, 123 S.Ct. at 2484, 156 L. Ed.2d at 525; State v. Saunders, 75
N.J. 200, 381 A.2d 333 (1977). And a person may elect to discontinue life
support knowing that death will result. Quinlan, supra, 70 N.J. at 10, 355 A.2d
647. In all these and other cases the law has recognized rights of individuals to
make fundamental life decisions in the conduct of their lives despite State
opposition. We should do so here.
Of course there are proper limits in an individual's rights of choice, just as
there are proper government limits on privacy and liberty. But when the
limitation amounts to a prohibition of a central life choice to some and not
others based on sexual orientation, it constitutes State deprivation of an
individual's fundamental right of substantive due process as well as equal
protection of the laws.
Which leads me to polygamy. My colleagues view the nature of the right to
marry asserted by plaintiffs as equally applicable to polygamy. The spectre of
polygamy was raised by Justice Scalia in his Lawrence dissent in which he
expanded a slippery slope analysis into a loop-de-loop by arguing that
decriminalizing acts of homosexual intimacy would lead to the downfall of
moral legislation of society by implicitly authorizing same-sex marriage and
polygamy as well as "adult incest, prostitution, masturbation, adultery,
fornication, bestiality and obscenity." Lawrence, supra, 539 U.S. at 590, 123
S.Ct. at 2490, 156 L. Ed.2d at 533 (Scalia, J., dissenting).
It is just as unnecessary for us to consider here the question of the
constitutional rights of polygamists to marry persons of their choosing as it
would be to join Justice Scalia's wild ride. Plaintiffs do not question the binary
aspect of marriage; they embrace it. Moreover, despite the number of amicus
curiae briefs filed in this appeal and the myriad of views presented, no
polygamists have applied. One issue of fundamental constitutional rights is
enough for now.
*26 Challenges to state laws on grounds of a right of privacy impact both
substantive due process and equal protection. While analytically distinct, these
concepts are linked and tend to overlap constitutional adjudication involving
marriage, family life and sexual intimacy. Lawrence, supra, 559 U.S. at 575,
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123 S.Ct. at 2482, 156 L. Ed.2d at 523; Goodridge, supra, 798 N.E.2d at 953.
Early decisions considered the right to marry as a matter of liberty within due
process protection, Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626,
67 L. Ed. 1042, 1045 (1923). In Griswold, supra, 381 U.S. at 484-85, 85 S.Ct.
at 1681-82, 14 L. Ed.2d at 514-15, the majority found a right of privacy
inclusive of marriage in the "penumbra" of the First, Third, Fourth, and Ninth
Amendments of the Federal Constitution. A right of marriage was held to be
inherent in substantive due process, Zablocki, supra, 434 U.S. at 383-86, 98
S.Ct. at 679-81, 54 L. Ed.2d at 628-30, and as a protectable interest for equal
protection of laws in Skinner, supra, 316 U.S. at 541-42 S.Ct. at 1113-14, 86 L.
Ed. at 1660. In all instances the right to marry was heralded as a fundamental
right subject only to reasonable State regulations such as the banning of
incestuous marriages, N.J.S.A. 37:1-1, bigamous marriages, N.J.S.A. 2C:24-1,
and marriages to those persons mentally incompetent, N.J.S.A. 37:1-9.
In adjudicating claims of constitutional right of substantive due process or
equal protection, our Supreme Court has eschewed the multi-tiered analysis
employed by the United States Supreme Court in cases such as City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87
L. Ed.2d 313, 320 (1985) and Carey v. Population Services Intl., 431 U.S. 678,
686, 97 S.Ct. 2010, 2016, 52 L. Ed.2d 675, 677 (1977). Aptly described in
dissent by Justice Clifford as a "veil of tiers," Matthews v. City of Atlantic City,
84 N.J. 153, 174 (1980) (Clifford, J., dissenting), the federal framework tends
to be inflexible and shroud the "full understanding of the clash between
individual and governmental interests." Planned Parenthood of Cent. N.J. v.
Farmer, 165 N.J. 609, 630, 762 A.2d 620 (2000). See also, Robinson v. Cahill,
62 N.J. 473, 491-92, 303 A.2d 273, cert. denied sub. nom., Dickey v.
Robinson, 414 U.S. 976, 94 S.Ct. 292, 38 L. Ed.2d 219 (1973). In its place our
Supreme Court has adopted a test to evaluate claims of due process or equal
protection under the State Constitution by examining each claim of right on a
continuum and weighing the extent of the right asserted, the governmental
restriction challenge and the public need for the restriction. Greenberg, supra,
99 N.J. at 567-69, 494 A.2d 294. See also, Planned Parenthood, supra, 165
N.J. at 629-31, 762 A.2d 620; Right to Choose, supra, 91 N.J. at 299-301, 450
A.2d 925. This balancing test is especially appropriate where, as in this case,
state law infringes on a fundamental right such as the right to marry.
Greenberg, supra, 99 N.J. at 571, 494 A.2d 294; see also, Right to Choose,
supra, 91 N.J. at 308-09, 450 A.2d 925; United States Chamber of Commerce
v. State, 89 N.J. 131, 157-58, 445 A.2d 353 (1982).
*27 The right to marry is to my view a fundamental right of substantive due
process protected by the New Jersey Constitution and, for the reasons stated
earlier, the exclusion of plaintiffs from the right cannot be justified by tradition
or procreation. The balancing test then considers the extent to which the
governmental restriction impinges upon that right. Greenberg, supra, 99 N.J. at
-50-
567, 494 A.2d 294. Here there is not only a restriction but a prohibition which
excludes a sizeable number of persons and their children from the personal,
familial and spiritual aspects of marriage. Finally, the balancing test inquires as
to the public need for the restriction, or as in this case, the prohibition of the
right. Ibid. Here the majority and concurring opinions again rely on history,
tradition and procreation. It is not necessary to repeat all the arguments set
forth earlier in this dissent. Tradition in itself is not a compelling state interest.
If it were, many societal institutions as well as individual rights would be
compromised. After all, slavery was a traditional institution for over 200 years.
See, People v. Greenleaf, 5 Misc.3d 337, 780 N.Y.S.2d 899, 901
(Just.Ct.2004). To deprive plaintiffs of marrying the person of their choice, a
right enjoyed by all others, on the basis of a tradition of exclusion serves only
to unjustifiably and unconstitutionally discriminate against them. Moreover,
procreation is even less persuasive as a public need. Can there be serious
thought that legal recognition of same-sex marriage will significantly reduce
heterosexual marriages or the birth rate? While some cases do link defining of
marriage solely to members of the opposite sex to "the survival of the [human]
race," see, e.g ., Baker, supra, 191 N.W.2d at 186, I cannot fathom that a list
of threats to our survival would include same-sex marriage. Also if there is an
under-population crisis, somehow it has escaped my attention.
Even if plaintiffs' claim of a right to marry is not considered a fundamental right,
their constitutional challenge meets the "rational basis test," which is the third
tier of the Federal tiers test. Briefly, the first tier requires "strict scrutiny" for
legislative acts directly affecting fundamental rights; a lesser standard of
"important government objections" is the intermediate tier test where a
substantial right is indirectly affected or a semi-suspect class, like gender, is
involved; and the bottom rung is occupied by other governmental acts for
which the State must show only that the law rationally relates to a legitimate
interest. Greenberg, supra, 99 N.J. at 564-65, 494 A.2d 294.
While the balancing test stated in Greenberg still sets the standard, I believe
that plaintiffs prevail on their constitutional challenge even if the least
restrictive or "rational basis" standard of review is employed since there is no
showing of a basis of other than tradition or procreation to exclude plaintiffs
from the significant (if not fundamental) state of marriage. See, Goodridge,
supra, 798 N.E.2d at 961 ("[W]e conclude that the marriage ban does not
meet the rational basis test for either due process or equal protection.").
*28 As to equal protection, my conclusion is the same. Our Constitution and
the Federal Constitution require that all similarly situated people be treated
alike. Cleburne, supra, 473 U.S. at 439, 105 S.Ct. at 3254, 87 L. Ed.2d at 330;
Brown v. State, 356 N.J.Super. 71, 79, 811 A.2d 501 (App.Div.2002). It is
disingenuous to say that plaintiffs are treated alike because they can marry but
not the person they choose. By prohibiting them from a real right to marry,
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plaintiffs as well as their children suffer the real consequences of being
"different." While the Domestic Partnership Act gives, at some cost, many, but
not all, of the benefits and protections automatically granted to married
persons, we have learned after much pain that "separate but equal" does not
substitute for equal rights. Plaintiff Sarah Lael describes the difference in this
way:
For me, being denied marriage, despite how hard we work and
support each other and our children, it is demeaning and humiliating.
These feelings are part of my daily life ... because of constant
reminders that we are second class.
What Sarah Lael and her partner lack and seek may be summed up in the
word dignity. But there is more they will gain from lawful marriage. That
something else goes to the essence of marriage and is probably best left to
poets rather than judges. It is the reason that people do get married. For
marriage changes who you are. It gives stability, legal protection and
recognition by fellow citizens. It provides a unique meaning to everyday life, for
legally, personally and spiritually a married person is never really alone. Few
would choose life differently.
With great admiration for the wisdom, logic and eloquence of my colleagues, I
must dissent.
__________
c} Familial relationship
What sorts of relatives are prohibited from marrying each other? Read CC art.
90.13 Then read Spaht, § 4.6, pp. 87-88.
1> Lines of relationship
a> Ascendants
&
descendants
Article 90 prohibits all intermarriage within the “direct” line (that is, between
ascendants and descendants) without limitation.14
13
Provisions comparable to article 90 (prohibitions against incest) can be found in all foreign civil
codes (or related legislation). See, e.g., Argentine CÓDIGO CIVIL art. 166(1)-(4); Brazilian CÓDIGO CIVIL
art. 1521(I)-(V); Chilean Ley de Matrimonio Civil art. 5 & Ley No 7,613 de octubre de 1943 art. 27;
French Code civil art. 161-164; German BURGERLICHES GESETZBUCH §§ 1306-1308; Italian CODICE
CIVILE art. 87; Mexican CÓDIGO CIVIL art. 156(III)&(IV); Quebec CIVIL CODE art. 373(4); Spanish
CÓDIGO CIVIL art. 47(1)&(2); see also CODE OF CANON LAW cans. 1091-1094.
14
All foreign civil codes (or related legislation) do the same. See, e.g., Argentine CÓDIGO CIVIL art.
166(1); Brazilian CÓDIGO CIVIL art. 1521(I); Chilean Ley de Matrimonio Civil art. 5(1); French Code
civil arts. 161; German BURGERLICHES GESETZBUCH § 1307; Italian CODICE CIVILE art. 87(1); Mexican
CÓDIGO CIVIL art. 156(III), sent. 1; Quebec CIVIL CODE art. 373(4); Spanish CÓDIGO CIVIL art. 47(1); see
also CODE OF CANON LAW can. 1091, § 1.
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FH 5. Jocasta, the young wife of Laius, gave birth to a son, Oedipus. Not long
thereafter, Laius, who had been warned in a dream that Oedipus would one day kill
him, abandoned him on a remote hill. As fate would have it, however, Oedipus was
found by a shepherd, who turned the boy over to a man who had for many years longed
to have a son. Years later, Oedipus happened upon Laius and, mistaking him for a
robber, killed him. Not long thereafter, Oedipus met and fell in love with the still
youthful-looking Jocasta, whom he eventually married. Recently the couple, after
having been told by a soothsayer that they were, respectively, mother and son, had
some DNA tests run, which confirmed the soothsayer’s story. Are Oedipus and
Jocasta validly married? Why or why not?
b> Collaterals within the
fourth degree
Article 90 prohibits some, but not all, marriages in the “collateral” line: the
prohibition stops at the fourth degree.15
FH 6. From the moment at which they first met (at age 1), Clodice and Olide,
first cousins (Clodice was the daughter of Jean LeBlanc and Olide was the son of Pierre
LeBlanc; Jean and Pierre, brothers, were both sons of Alcide LeBlanc, the common
grandfather of Clodice and Olide) were attracted to each other. When they reached
adolescence, they began dating, and they have remained together ever since. Now they
want to get married. Can they? Why or why not?
2> Modes
of
relationship:
consanguinity & adoption
At what “modes” of familial relations is article 90 aimed? Is it only
consanguinity? Or is it also adoption? What about affinity?
FH 7. Not long after his marriage to Barbie, Ken found himself attracted to Kelly,
Barbie’s younger sister. As for Kelly, she thought Ken was “hot.” Eventually Ken
and Kelly developed (to borrow a phrase from the 42nd US President) an “inappropriate
relationship” (in standard speech, they started having some sort of sex) When Barbie
found out about it, she promptly divorced Ken. Now Ken and Kelly want to get
married. Can they? Why or why not?
FH 8. After meeting Zoon-Than, an eleven-year old Vietnamese orphan,
Woodrow (a.k.a. “Woody”) and Myra, husband and wife, decided to adopt her. But
then, as the years passed and the cute child blossomed into a voluptuous woman,
Woody began to develop “feelings” for her that were, well, less than fatherly. At the
same time, Zoon-Than developed some less-than-daughterly feelings toward Woody.
15
Though all foreign civil codes likewise prohibit inter-collateral marriages up to some degree, just
what that degree is varies. See, e.g., Argentine CÓDIGO CIVIL art. 166(2) (second degree); Brazilian
CÓDIGO CIVIL art. 1521(IV) (third degree); Chilean Ley de Matrimonio Civil art. 5(2) (second degree);
French Code civil arts. 162-163 (third degree); German BURGERLICHES GESETZBUCH § 1307 (second
degree); Italian CODICE CIVILE art. 87(3) (third degree); Mexican CÓDIGO CIVIL art. 156(III), sents. 2&3
(third degree); Quebec CIVIL CODE art. 373(4) (second degree); Spanish CÓDIGO CIVIL art. 47(2) (third
degree); see also CODE OF CANON LAW can. 1091, § 2 (fourth degree). Indeed, even within Louisiana the
degree-limit has varied over time.
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Eventually Woody, never known for much self-control, and Zoon-Than gave into those
feelings. In time, Woody divorced Myra. Now he wants to marry Zoon-Than. Can
he? Why or why not? Could a court authorize it upon a proper showing?
________
NOTE
As lists of impediments go, that found in CC art. 88 is relatively brief. A
number of other impediments are set up in many foreign civil codes. Perhaps
the most popular of these is the impediment of “conjugacide” (murder of a
spouse), according to which a person who, for the purpose of entering into a
marriage with another, murders that other person’s or his own spouse may not
thereafter conclude the intended marriage. See Argentine CÓDIGO CIVIL art.
166(7); Brazilian CÓDIGO CIVIL art. 1521(VII); Chilean Ley de Matrimonio Civil
art. 6; Italian CODICE CIVILE art. 88; Mexican CÓDIGO CIVIL art. 156(VI); see also
CODE OF CANON LAW can. 1090. Others include (i) the impediment of
“impotence,”according to which a man or a woman who suffers from perpetual
and incurable impotence (inability to have intercourse) may not contract
marriage, see Chilean Ley de Matrimonio Civil art. 4(3); Mexican CÓDIGO CIVIL
art. 156(VIII); see also CODE OF CANON LAW can. 1084; (ii) the impediment of
“adultery,” according to which co-adulterers, after the existing marriage of one
or the other or both is dissolved, cannot marry each other, see CHILEAN LEY DE
MATRIMONIAL CIVIL art. 7; Mexican CÓDIGO CIVIL art. 156(V)16; and (iii) the
impediment of “widowhood,” according to which a woman who has been
widowed may not remarry within nine months (or thereabouts) from the death
of her husband, see Brazilian CÓDIGO CIVIL art. 1523(II); Italian CODICE CIVILE
art. 89; Mexican CÓDIGO CIVIL art. 158.
________
b]
Marriage ceremony
1} In general
FH 9. Fifty years ago, just after they were graduated from high school, Clodice
“moved in” with Olide and the two started “living together.” In the course of time,
they had several children, whom they reared together, and accumulated considerable
property, which they considered to be “theirs” as opposed to “his” or “hers.” They
thought of themselves as married, as did their family (including their children) and
their friends, and Olide always referred to Clodice as “my wife” and Clodice to Olide
as “my husband.” They even described themselves as “married” on federal tax and
census forms. Then Olide died. Not long thereafter, Clodice, describing herself as
16
A variant of this impediment was until recently recognized in the canon law. It can be traced all
the way back to the Synod of Tibur, held in 896 AD, and was set forth in article 1075(1) of the Code of
Canon Law of 1917. See P. Charles Augustine, A COMMENTARY ON THE NEW CODE OF CANON LAW
196-97 (1919). The Code of Canon Law of 1983 did not, however, reproduce it.
-54-
Olide’s “surviving spouse, filed a petition to open Olide’s succession and, in
connection therewith, asked to be “put into possession” of a “usufruct” of “Olide’s ½
of our community property pursuant to CC art. 890.” At that point, Avarice, the eldest
child of Olide and Clodice, intervened in the proceedings. In her petition of
intervention, Avarice alleged, among other things, that inasmuch as Clodice was not, in
fact, Olide’s surviving spouse and was not otherwise related to Olide, Clodice had “no
interest in Olide’s succession” and, further, that Olide’s children – Avarice, Desirée,
and Ti-O – were entitled to receive Olide’s property, all of which was his “separate”
property, free of any usufruct in favor of Clodice. On what basis did Avarice contend
that Clodice was not Olide’s surviving spouse? On the ground that they had never, in
fact, been “married.” And why not? Because they had never said “I do” or some
such before a minister, justice of the peace, or the like and witnesses. Is Avarice
right? Why or why not? See CC arts. 87 & 91.
2} Elements
a}
Those the absence of which
produces nullity
1/ Presence of the spouses
Read CC arts. 87, par. 4; 91, sent. 2; & 92. Then read Spaht, § 3.8, p. 70, pars.
1-2.
FH 10α. Just before Ti-Boy and Desirée were scheduled to be married, Ti-Boy, a
lance corporal in the national guard, was “called up” for active duty and shipped off to
the front. Unwilling to re-schedule the wedding (they’d already invested too much
money in it), the couple decided to go ahead with it anyway. How? Ti-Boy “appoints”
his younger brother Gros-Boy to be his “mandatary” (=agent) for purposes of
expressing his vows to Desirée. And so, at the wedding ceremony, Gros-Boy,
“standing in” for Ti-Boy, says, “I do.” Are T-Boy and Desirée validly married? Why
or why not?
FH 10β. The same as before, except that, this time, the fiancés take a different
tack to solve their problem. How? By having Desirée appear at the wedding, as was
originally contemplated, “in person” and having Ti-Boy “appear” at the wedding “via
telephone,” that is, by means of a two-way telephonic transmission, bounced off a
communications satellite orbiting the earth, between Ti-Boy’s post and the church,
whereby he, Desirée, and the minister could hear and speak to each other (a “speaker
phone” was used at the “church” end of the link-up). In this way, Ti-Boy and Desirée
exchanged their vows. Are T-Boy and Desirée validly married? Why or why not?
2/ Participation of a “qualified”
officiant
Can the fiancés perform the wedding ceremony “by themselves,” that is, without
anyone else present? Why or why not? Read CC art. 91 & CC art. 87 cmt. (d). Then
read Spaht, § 3.8, p. 70, par. 1.
If they cannot do it alone – if someone else must be present –, then who will do?
In particular, what qualifications must this third person possess? Read CC art. 91 cmt.
(c). Then read La. Rev. Stat. 9:201-203. Then read Spaht, § 3.8, p. 70, par. 2.
FH 10γ. To officiate at their ceremony, Ti-Boy and Desirée choose Father
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Jacques, Ti-Boy’s cousin. Unbeknownst to the fiancés, Father Jacques, a Catholic
priest, is, shall we say, no longer in “good standing” with Rome, in fact, has been
defrocked and, consequently, is barred by canon law from performing weddings.
When this fact comes to light several months after the wedding, Ti-Boy and Desirée
wonder whether they are, as a matter of civil law, validly married? What would you
tell them? Why?
3/ Expression of intent to “take”
each other as husband & wife
Is there anything in particular that the fiancés are required to express to each other
at the wedding? Read CC art. 87, par. 3.
b} Those the absence of which does
not produce nullity
1/ Marriage license
Can the spouses-to-be participate in a marriage ceremony without first getting a
license? If not, who (or what) can issue a marriage license? Where can it be issued?
What’s required to get a marriage license, in particular, what information must be
provided on the application and what must be attached to the application? For how
long is the license effective? Read La. Rev. Stat. 9:221-225, 234-236.
2/ Lapse of waiting period
Must the spouses-to-be wait after getting their license before saying “I do”? If so,
for how long? Read La. Rev. Stat. 9:241-243.
3/ Witnesses
Must there be “witnesses” to the marriage ceremony? If so, how many and with
what qualifications? Read La. Rev. Stat. 9:244.
4/ Marriage certificate
Must a marriage certificate be prepared at the marriage ceremony? If so, who’s
supposed to prepare it, what must it contain, and to whom must it be sent? Read La.
Rev. Stat. 9:245.
c] Capacity to marry
Does Louisiana impose any sort of “capacity” requirement on those who wish to
contract marriage? If so, what is it? Read the following note.
________
NOTE
To contract a valid marriage, the parties must be “capable” of consenting to it.
One lacks that capacity if and only if, at the moment at which one supposedly
gave one’s consent to the marriage, one was “incapable of discernment.” See
CC art. 93. Unlike contractual incapacity in general (see CC art. 1918),
incapacity to contract marriage is not established upon mere proof that the
party is an “unemancipated minor” or an “interdict.” To put it another way,
there is no logical connection between such juridical situations as “minority”
and “interdiction,” on the one hand, and incapacity to marry, on the other: it is
possible for an unemancipated minor or an interdict to possess this capacity.
What matters, rather, is the party’s actual ”soundness or unsoundness” of
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mind at the supposed moment of consent, something that can be ascertained
only after a careful examination of the facts. Examples of such incapables
include persons who are “insane,” “under the influence of drugs,” “mentally
retarded,” and “too young to understand the consequences of the marriage
celebration.” See CC art. 93 cmt. (d).
Curiously, the pertinent legislation, CC art. 93, treats
incapacity of
discernment not as a species of lack of capacity to contract marriage, but
rather as a species of lack of free consent, CC art. 93 cmt. (c), in other
words, as a vice of consent. The supposed justification for this astonishing
confusion of categories is that the Louisiana courts, in interpreting the sources
of article 93, i.e., articles 90 and 91 of the Code of 1870, had so characterized
incapacity of discernment. Id. Poppycock Though it is true that the courts
characterized incapacity of discernment in this fashion, it is just as true that
they were wrong--stunningly and profoundly so. The rationale behind the
courts' characterization--that it was required in order to limit the right to
complain of the incapacity to the incapable spouse alone--rested on a
fundamentally flawed reading of the applicable Civil Code articles as well as on
a monumental misunderstanding of the juridical consequences of incapacity
(to be more precise, a failure to appreciate the variable consequences of
incapacity of enjoyment and incapacity of exercise). That the redactors of
new article 93, instead of correcting this series of logical blunders, ended up
writing it into their legislation is lamentable.
________
FH 11. For years Olide had been after Clodice, his long-time girlfriend, to marry
him, but to no avail. And so Olide hatched a plan: I’ll get her drunk, fly her to Vegas,
take her to a wedding chapel – one staffed by a “minister” dressed like Elvis, and get
her to say “I do” then and there. His plan is a success. But the next morning after the
wedding night, when Clodice, having sobered up, discovers what’s happened, she
wants an annulment. Is she entitled to it? Why or why not?
d] Consent to marry
1/ Nature
What sort of “consent” is required for a valid contract of marriage? In other
words, what, precisely, are the parties expected to consent to? Read CC art. 87, last
paragraph.
2/ Freedom
Consent to marry, like consent to any other contract, must be “free” or, to put the
point negatively, must not be “vicious.” What are the vices of consent to the contract
of marriage? Are they the same as or different from the vices of contractual consent in
general? Read CC art. 93. Then read Spaht, § 3.12, p. 72, & § 4.2, pp. 77-85
(including Lacoste, Stier, Verneuille, and excerpt from Spaht law review article).
FH 12α. After it comes to light that Ti-Boy has gotten Desirée (his girlfriend)
pregnant, Rmy, Derirée’s father, has a little “chat” with Ti-Boy, the gist of which is
this: “You gonna make dis right by marryin’ ma daughter, or I gonna feed you ‘live do
les cocodries [alligators].” Because Ti-Boy considers this threat to be credible –
-57-
Rmy is widely reputed to have dealt in this way with other people who had “crossed”
him –, Ti-Boy agrees to Rmy’s “proposal.” A week after the wedding, however,
Rmy himself gets gobbled up by les cocodries. Ti-Boy now wants out of the
marriage. Does he have a shot? If so, on what basis?
FH 12β. The same as before, except that, this time, Rmy puts a different kind of
“heat” under Ti-Boy’s feet, namely, Rmy threatens to have him brought up on
criminal charges of “statutory rape.” You see, whereas Ti-Boy is 21, Desirée is only
16. What result now? Why?
FH 13. Clodice, who has dated (and had sexual relations with) Olide off and on
for years, has just turned up pregnant. Though Clodice knows that the child is not
Olide’s (it was the product of a “one night stand” she had had with Lucky, a local
country music star), she nevertheless tells him that it is his. Why? To induce him to
marry her, something that she’s long wanted (and even occasionally asked for), but that
he’s always rejected. To her delight, her ploy works: Olide, determined to do the
“honorable thing,” asks her to marry him, and she, of course, quickly accepts. The
wedding occurs and in due course the baby is born. But then, lo and behold, Lucky,
claiming to be the child’s true father, sues Clodice for visitation rights. When Olide
asks Clodice to explain what’s going on, she tearfully confesses her deceit. Olide now
wants out of the marriage. What are his chances? Why?
FH 14. Ti-Boy and Desirée, who have been dating for a few years, decide to get
married. Before their marriage they had never had sexual intercourse; not only that,
but they have never even engaged in “heavy petting” (manual stimulation of the
genitalia). And so it was that when, on their wedding night, Ti-Boy proved unable to
become “aroused” (i.e., he was impotent), it came as something of a surprise. In the
next days and weeks, the couple tried a number of measures to overcome the problem;
they even sought expert assistance. But it was all to no avail. Desirée now wants out
of the marriage. Why? Because, as she puts it, “I never would have married him had
I known that he was unable to ‘perform’ sexually.” What are her chances? Why?
________
NOTE
Though every foreign civil code contains a provision like our article 93, that is,
one which requires that the parties’ consent to marry be “free,”17 few (if any) of
17
See, e.g., Argentine CÓDIGO CIVIL art. 172 (“Full and free consent expressed personally by a man
and a woman before an authority competent to celebrate marriage is indispensable for the existence of
marriage.”); Quebec CIVIL CODE art. 365, par. 2 (“Marriage may be contracted only between a man and a
woman expressing openly their free and enlightened consent.”); Spanish CÓDIGO CIVIL art. 45, par. 1
(“There is no marriage without matrimonial consent.”); see also German BÜRGERLICHES GESETZBUCH §
1310(1) (“A declaration of consent to the marriage pronounced by the spouses before the officer of civil
status alone makes the marriage valid.”); see also CODE OF CANON LAW can. 1057, §1 (“A marriage is
brought into being by the lawfully manifested consent of persons who are legally capable. This consent
cannot be supplied by any human power.”) & §2 (“Matrimonial consent is an act of will by which a man
and a woman by an irrevocable covenant mutually give and accept one another for the purpose of
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those foreign civil code provisions sets the standard for free consent as “low”
as does article 93 (in other words, most, if not all, foreign civil codes recognize
more vices of consent or define those vices more broadly than does ours).
Here’s a sample of those foreign civil-code provisions:
I. Argentine CÓDIGO CIVIL
Art. 175. Violence, fraud, and error regarding the person of the other
contracting party vitiate consent. So also does error regarding the
personal qualities of the other contracting party, if it is proved that he
who made the error would not have consented to the marriage if he
had known the state of things and had reasonably appreciated the
union that he was contracting.
The judge will evaluate the
essentiality of the error considering the personal conditions and
circumstances of him who alleges it.
ii. Italian CODICE CIVILE
Art. 122. [Duress and error]
A marriage can be attacked by that spouse whose consent was
extorted by duress or was caused by a fear of exceptional gravity
deriving from causes external to the future spouse.
A marriage can also be attacked by that spouse whose consent was
given as a result of an error on the identity of the person or of an
essential error concerning personal qualities of the other spouse.
An error concerning personal qualities is essential when, having
regard to the condition of the other spouse, it is determined that the
latter would not have given his consent if he had known them exactly
and provided the error relates to:
1) the existence of a physical or psychic illness or of a sexual
anomaly or deviation such as can prevent the development of marital
life;
2) the existence of a verdict of conviction for a non culpable crime
with a sentence to imprisonment for not less than five years. except in
case rehabilitation has been granted before the celebration of
marriage. The action for annulment cannot be brought until the verdict
has become final;
3) a declaration of habitual or professional delinquency:
4) the fact that the other spouse was convicted for crimes concerning
prostitution to a sentence of not less than two years. The action for
annulment cannot be brought until the conviction has become
irrevocable:
5) a state of pregnancy caused by a person other than the subject
who was affected by the error provided that a disclaimer of paternity
pursuant to Article 223 occurred, if the pregnancy was brought to
establishing a marriage.”)
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conclusion.
The action cannot be brought if there was cohabitation for one year
after cessation of the duress or of the causes that resulted in the fear
or after the discovery of the error.
iii. Spanish CÓDIGO CIVIL
Art. 73. The following are null regardless of the manner in which they
are contracted:
...
4̊ A marriage contracted in error concerning the identity of the other
contracting party, or in error as to those personal qualities that,
because of their importance, were determining factors in the giving of
consent.
5̊ A marriage contracted under coercion or great fear.
More “liberal” still with respect to “vices of consent” is the Roman Catholic
Church’s CODE OF CANON LAW (1982), the pertinent provisions of which read as
follows:
Can.1096.
For matrimonial consent to be valid it is necessary that the contracting
parties at least not be ignorant that marriage is a permanent
consortium between a man and a woman which is ordered toward the
procreation of offspring by means of some sexual cooperation.
Can. 1097.
§ 1. Error concerning the person renders marriage invalid.
§ 2. Error concerning a quality of a person, even if such error is the
cause of the contract, does not invalidate matrimony unless this
quality was directly and principally intended.
Can. 1098.
A person contracts invalidly who enters marriage deceived by fraud,
perpetrated to obtain consent, concerning some quality of the other
party which of its very nature can seriously disturb the partnership of
conjugal life.
Can. 1099.
Error concerning the unity, indissolubility or sacramental dignity of
matrimony does not vitiate matrimonial consent so long as it does not
determine the will.
Can. 1100.
The knowledge or opinion of the nullity of a marriage does not
necessarily exclude matrimonial consent.
Can. 1101.
§1. The internal consent of the mind is presumed to be in agreement
with the words or signs employed in celebrating matrimony.
§2. But if either or both parties through a positive act of the will should
exclude marriage itself, some essential element or an essential
-60-
property of marriage, it is invalidly contracted.
Can 1102.
§1. Marriage based on a condition concerning the future cannot be
contracted validly.
§2. Marriage based on a condition concerning the past or the present
is valid or invalid, insofar as the subject matter of the condition exists
or not.
...
Can. 1103.
A marriage is invalid if it is entered into due to force or grave fear
inflicted from outside the person, even when inflicted unintentionally,
which is of such a type that the person is compelled to choose matrimony in order to be freed from it.
________
2] Additional requirements for covenant marriages
What are the requirements for a covenant marriage? Read La. Rev. Stat. 9:
272-273.1; the read the following note:
________
NOTE
Those who aspire to enter into a “covenant marriage” must satisfy a number of
prerequisites in addition to those set forth above.
These additional
prerequisites are of two kinds: substantive and formal.
i. Additional Substantive Requirements
The additional substantive requirements are three in number. First, the
parties must read a pamphlet, created by the Attorney General, that explains
the concept and effects of covenant marriage. Second, they must “disclose[ ]
to one another everything which could adversely affect the decision [of the
other] to enter into th[e] marriage.”18 Third, and most important, they must
receive “premarital counseling” from a clergyman or professional marriage
counselor that entails, among other thing, a discussion of the “seriousness” of
covenant marriage, in particular, that it is “for life.”
18
This requirement opens the door to the possibility that a covenant marriage, unlike an at-will
marriage, might, under appropriate circumstances, be upset on grounds of fraud. When fraud occurs
between the spouses to be, it’s almost always through omission, i.e., reticence (silence). As you may
recall from your Obligations course, our courts, following the majority of the doctrinal writers, have
ruled (or at least assumed) that silence can constitute the actus reus of the vice of consent of fraud only
when the silent party has a duty to disclose what he knows. Between would-be spouses about to enter
into an at-will marriage, there arguably is no such duty for them. But, by virtue of the requirement to
“tell all” that is imposed on would-be spouses about to enter into a covenant marriage, there clearly is
such a duty for them. This point will be addressed below at length under the heading “nullity of
marriage.”
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2. Additional Formal Requirements
Among the additional formal requirements, far and away the most important is
this: the spouses must execute a “declaration of intent to contract a covenant
marriage,” in notarial form, in which they recite, among other things, that they
“agree to live together as husband and wife for so long as they both may live”
and promise that, should they encounter marital difficulties, they will “take all
reasonable efforts to preserve our marriage, including marital counseling.”
This declaration must be accompanied by an affidavit from the couple’s
marriage counselor attesting that they did, in fact, receive the required
premarital counseling.
________
b) Nullity of marriage
According to the law of contracts in general, if any of the requirements for the
formation of a supposed contract is not met, then that “contract” is null. See CC art.
2029. And depending on the nature of the requirement that is not met, this nullity may
be either “absolute” or “relative.” See CC arts. 2030 & 2031.
Do these general contract-law principles apply to the contract of marriage? Read
CC arts. 94 & 95.
1] Absolutely null marriages
a] Causes of absolute nullity
For what causes will a marriage be considered absolutely null? Re-read CC art.
94.
1} Absence of a marriage ceremony
Recall FH 9. We’ve already established that the supposed “marriage” of the
parties was defective for want of a proper marriage ceremony. We now know that this
defect rendered the marriage “null.” But what kind of nullity was it?
2} Marriage by procuration
Recall FH 10α. We’ve already established that the supposed “marriage” of the
parties was defective on account of “procuration.” We now know that this defect
rendered the marriage “null.” But what kind of nullity was it?
3} Violation of an impediment
Recall FH 2. We’ve already established that the supposed “marriage” of the
parties was defective in that it was contracted in violation of an impediment. We now
know that this defect rendered the marriage “null.” But what kind of nullity was it?
b] Effects of absolute nullity
What effects, if any, does an absolutely null marriage produce?
1} In general
FH 15. Beau Sot and Ti-Seau Sot, knowing full well that they are first cousins,
nevertheless marry. In the course of time, they produce a child, Greau Sot, and
accumulate considerable property together. What is Greau Sot’s status – legitimate or
illegitimate? Is any of the property that Beau and Ti-Seau accumulated “community”
property?
2} Exception: “putative” marriage
Read CC art. 99.
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a} Explication of putative marriage
________
NOTE
CC art. 99 reflects a modern variant of an ancient institution that was originally
developed by the canonists, namely, “putative marriage.” The doctrinal
material that follows will provide you with the historical background of that
institution.
________
2 Adhémar Esmein, LE MARIAGE EN DROIT CANONIQUE 33-37 (1891)
Inasmuch as one of the essential elements of legitimate filiation is
conception or birth [of the child] within a legitimate marriage, if the
marriage contracted between the father and the mother were legally
null as a result of a dirimant impediment, logic would demand that
children produced by this union be declared illegitimate. Roman law
had followed this logic without concerning itself to attenuate the rigor
of it, and the canon law of the Eastern Church has remained faithful
to these principles. In the West, it was the same for quite a long
time: even in the 11th Century, the Exceptiones Petri [a canon-law
document] reproduced this doctrine. But in the course of the following
century, the canon law [in the West] departed from this rigorous logic
and created the theory of “putative marriage.” This theory held that if
one of the spouses was in “good faith” – was unaware of the dirimant
impediment at the time of the contract –, then the marriage, even
though null, would produce all the effects of a legitimate marriage
during the time that would have preceded the declaration of nullity
and as to the children born or conceived during this time. But, for
that to happen, good faith [alone] did not suffice: it was also
necessary that the marriage have been contracted in facie Ecclesi
[literally, “in the face of the Church,” meaning in a ceremony before a
priest]: a clandestine marriage, even though proof of it was possible,
could never constitute a putative marriage. . . .
This theory of putative marriage is clearly approved by the law of the
decretals [more canon-law documents] from the time of [Pope]
Alexander III onward. But it was not [papal or conciliar] legislation
that introduced the theory; [rather,] the theory was the product of
doctrine and of interpretation. It is in [the work of the great French
canonist] Peter Lombard that I find the theory for the first time, but it is
already completely formulated: we see in that work likewise the
preparatory works from which it originated [i.e, Lombard just
assembled excerpts from earlier works]. Two [distinct] conceptions
[of the theory] were produced [by Lombard and his contemporaries
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and successors], both tending to correct the prior rigor [i.e., the old
Roman rule]. One of these conceptions – and this is the idea that
prevailed – recognized openly that, thanks to the presence of the
dirimant impediment, there was no marriage in law; but, excusing the
contracting parties from the delict that they had committed without
knowing it, the adherents of this conception declared that there was in
such a case a quasi-conjugium, from which the legitimacy of the
children sprang. The adherents of the other conception claimed that
there was a marriage in law until the declaration of nullity . . .; and [in
support of their conception] they invoked in this sense the texts that
used the term conjugia [without the qualification quasi-]to refer to
marriages in fact that had been contracted between relatives within a
prohibited degree. We see there the rationale whereby one, first of
all, justified the new theory, which assured the legitimacy of the
children, all the while annulling the marriage. But one can affirm that
the fundamental cause that caused the theory to be accepted was the
rigor of the canon law with respect to the impediments that were
found on consanguinous and affinitive relations. Given the extent
that these impediments had attained, a great number of people, with
the best faith in the world and without any grave fault on their part,
could [end up] contract[ing] null unions. Some such corrective [such
as the putative marriage theory] had to be adopted.
If the theory of putative marriage is already fully formed in Peter
Lombard, Gratian [the great Italian canonist of the same era], on the
contrary, does not know it. . . . Gratian only mentions that the
Church, by way of tolerance, has sometimes been able not to annul
marriage contracted between relatives and, by this means, to assure
the legitimacy of the children. Thus, one can conclude that the
theory of putative marriage . . . was a creation of the Ecclesia
Gallicana [the French wing of the medieval Western Church], which
was then received into the common canon law. Later canonists
brought little to the theory [that was new]; they did, however, specify
some of the fine points.
The truly generative element of putative marriage is the good faith of
the spouses. [The later canonists] therefore asked themselves
whether good faith ought to be considered independently for each of
them, so that, if one of them had it and the other did not, the child
would be declared legitimate only in the relation to the ignorant
[innocent] spouse. This theory had its partisans, among them some
canonists of the first rank. But the contrary tradition of the Roman
law in that which concerns questions of liberty as well as the practical
inconveniences that this doctrine presented caused it to be rejected.
It sufficed in order for the child to be reputed legitimate in regard to
both spouses that one of them be in good faith.
Also posed [by the later canonists] was the question whether an error
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of law could be taken into consideration and could produce good faith
as well as an error of fact. But it does not seem that the doctrine on
this point was perfectly clear.19
Finally, it is certain that, at first, the whole effect of putative marriage
was limited to assuring the legitimacy of the children. But one should
[,it was later concluded,] go further and make the spouses, too,
participate in this benefit, in their personal interest. The pecuniary
advantages that a valid marriage would have assured for them were
[therefore] maintained [in their favor] by reason of good faith. . . .
________
b} Prerequisite(s ?)
for putative
marriage
1> Good faith
a> Substantive law
What does “good faith” mean in this context? Read CC art. 96 cmt. (d); then
read the following doctrinal material:
________
Alain Bénabent, DROIT CIVIL: LA FAMILLE no 143, at 78-79 (10th ed. 2001)
A necessary condition for a null marriage to be declared putative is the good
faith of one of the spouses. This is understood as ignorance of the
impediment, which can proceed either from an error of fact (the spouse did not
know of the kinship . . . that impedes the marriage or he believed that the first
marriage of his spouse had been dissolved) or from an error of law. The
jurisprudence admits that one of the spouses can avail himself of the legal
ignorance of the vice that impedes the marriage, thus rejecting in this matter
the maxim “no one is thought to be ignorant of the law.” . . .
________
1 Guillermo A. Borda, TRATADO DE DERECHO CIVIL: FAMILIA
no 218, at 169(8th ed. 1989)
218. Definition of “good faith.” – The necessary and sufficient condition for the
existence of a putative marriage is the good faith. This consists in the
ignorance of the existence of the impediment that prevents the [parties] from
contracting a [valid] marriage. The error or ignorance must be excusable . . .
219. . . . In reality, that which configures good faith is less the “error” than the
honesty and the rectitude of the intention and the conduct. . . .
19
Though that may have been true long ago, it is no longer true today. In modern canon law, it is
well settled that the error which gives rise to good faith can be either one of fact or one of law. See
Raoul Naz, Mariage en Droit Occidental no I-3o, in 6 DICTIONNAIRE DE DROIT CANONIQUE 740, 743 ( ).
The same is true, as we shall soon see, under current Louisiana law.
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________
I
What kind of error:
only “error of fact” or
also “error of law”?
ii What
kind
of
standard:
subjective,
objective, or both?
b> Adjective law
Is good faith presumed in this context as it is in so many others? Does the answer
to that question vary according to (i) the “cause” of the absolute nullity and / or (ii)
which of the two supposed spouses claims to have been in good faith? See Alain
Bénabent, DROIT CIVIL: LA FAMILLE no 143, at 79 (10th ed. 2001) (“good faith is
presumed”); Orlando Gomes, DIREITO DE FAMÍLIA no 78, at 115 (7th ed. 1988) (“It [good
faith] is presumed before proof to the contrary.”); then read the following doctrinal
material:
________
1 Guillermo A. Borda, TRATADO DE DERECHO CIVIL: FAMILIA
no 221, at 170 (8th ed. 1989)
Proof of good faith. – Good faith is presumed and, therefore, it is not
necessary to prove it.
Nevertheless, the circumstances of the case
sometimes permit one to infer bad faith: this occurs when the impediment[ ]
of a prior undissolved marriage (with respect to the one that is married) is
present. . . In these cases, the spouse who alleges his good faith ought to
demonstrate that he had serious legal reasons for believing that his prior
spouse had died [or that the prior marriage had otherwise ended] . . .
________
Finally, read Gathright v. Smith (La. 1978), in Spaht, § 4.8, pp. 104-09.20
FH 15.1. Not long after Pascal and Julie had wed in 2001, Julie heard a rumor
that Pascal had been previously married, something that Pascal had not disclosed to
her. When Julie asked him about it, he admitted that he had, in fact, been previously
married, but asserted that that marriage had ended when his first wife, Beatrice, had
died of cancer in 1995. Satisfied with this explanation, Julie asked no more questions
of Pascal or anyone else and thought no more about the matter. But then one day, as
she was looking through Pascal’s desk, she came across a set of papers that included a
petition for divorce, filed by one “Beatrice Boudreaux” against a “Pascal Boudreaux,”
but no accompanying judgment of divorce. When Julie confronted Pascal, he offered
her this explanation: his marriage to Beatrice had, indeed, ended due to a divorce rather
20
In some civil-law jurisdictions, this presumption of good faith has been codified. See, e.g.,
Spanish CÓDIGO CIVIL art. 79, par. 2 (“Good faith is presumed.”)
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than to her death; the reason he “lied” about this is that he was embarrassed to admit to
Julie that he’d been divorced. Julie then asked, “So, where’s your copy of the divorce
judgment.” Pascal answered, “I lost it a few years back.” Satisfied with this
explanation, Julie asked no more questions of Pascal or anyone else and thought no
more about the matter. Time went by. Then Pascal died. As Julie was receiving
friends at the funeral parlor, who should show up but Beatrice, who claimed to be
Pascal’s “lawfully married wife.” As she explained to a shocked Julie, though she
had, in fact, once filed suit for divorce against Pascal, she’d soon thereafter dismissed
her suit voluntarily. Can Julie, so as to claim a share in the “community property” that
Pascal had acquired during their non-marriage, claim “putative spouse” status? Why
or why not? See, again, Gathright v. Smith.
2> Marriage ceremony (?)
FH 15.2. Recall FH 2. Suppose that, before Olide and Clodice had moved to
Louisiana, they’d grown up in Kentucky, which recognizes so-called “common law”
marriages, that is, marriages formed simply by virtue of the spouses having lived
together, while practicing monogamy, for many years. Like most people, they
assumed that the law everywhere else – Louisiana included – was the same. And so it
was that when they began to live together, which did not happen until after both of
them had immigrated to Louisiana, they considered themselves to be married. Now
they know better (their son, who just finished a course in Family Law at the LSU Law
Center told them). Can either or both of them now claim “putative spouse” status and,
therefore, claim the benefit of the “civil effects” of their non-marriage up to the point in
time at which they learned the truth? Why or why not? here. You may assume, as
seems likely under the circumstances, that Olide and Clodice originally had an “honest
and reasonable belief” that, to be validly married under Louisiana, they need not first
endure any sort of ceremony. Read Succession of Rossi (La. App. 4th Cir. 1968) & the
note on Succession of Fusilier (La. App. 3d Cir. 1975), in Spaht, § 4.8, pp. 96-98; then
read the following doctrinal material:
________
Alain Bénabent, DROIT CIVIL: LA FAMILLE no 143, at 79 (10th ed. 2001)
Certain authors . . . contest the possibility of a putative marriage in the case of
“non-existence”. But the jurisprudence admits it, at least where the marriage,
though performed by an authority that is radically incompetent, has been done
with a minimum of celebration. Thus, the jurisprudence has declared
“putative” a marriage celebrated in extremis by a priest21 in an sanatarium, but
21
As strange as it may seems to us, in France priests and other religious officials do not, for
purposes of the civil law, have the authority to celebrate marriages. It’s not that they’re forbidden from
celebrating marriages; it’s just that the marriages celebrated by them are not “recognized” by the civil
law. Who , then, is authorized to celebrate marriages that are so recognized? It’s certain government
officials. But, of course, marriages celebrated by them are not recognized by the Church! And so it is
that devout Catholics in France who wish to marry must undergo two wedding celebrations, one before a
priest, so that the marriage will be recognized under the canon law, and another before a government
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not that celebrated by a French functionary in Guinea, who married two
indigenous persons, who were sisters, without any juridical formality.
________
Orlando Gomes, DIREITO DE FAMÍLIA no 78, at 117 (7th ed. 1988)
Good faith is necessary for a marriage to be putative. But no other conditions
are required, for example, that of an excusable error. A propr solemnity of
celebration by a qualified authority is not necessary.
________
R.P. Hernán Arboleda Valencia, DERECHO MATRIMONIAL ECLESIASTICO 114
(1970)
Putative: [a marriage is putative] if at least one of the spouses has had good
faith. . . . [I]n the law of the church, in order for a marriage to be putative, it is
required, in addition to good faith, that the marriage have been celebrated
coram Ecclesia – before the church. . . .
________
c} Exclusion from putative marriage:
same sex marriage
At least one species of null “marriage” is so disfavored as a matter of public
policy that it is excluded from membership in the category “putative marriage” by
legislative fiat. Which marriages are these? Read CC art. 96, par. 4.
FH 16. Recall FH 3. Suppose that Danny and Guy had been brought up in the
Netherlands, had immigrated to New Orleans only after the Dutch had recognized “gay
marriage,” had assumed (as most people tend to do) that the law outside the
Netherlands (including that of Louisiana “just had to be the same” as the law they
knew – Dutch law –, and had been married by that dissident priest in New Orleans
instead of in Amsterdam. Once Danny and Guy discover their mistake (about
Louisiana law, that is) and come to understand that their marriage is null, can they
nonetheless claim that, inasmuch as they were both in “good faith” when they tried to
marry, they were “putative spouses” and, as such, are entitled to the civil effects of
marriage for the period between the date of their wedding and the date on which they
learned the truth? What say you?
d} Effects of putative marriage
1/ Enumeration of effects
What are the effects of a putative marriage?
a/ For
the
spouses
official, so that it will be recognized under the civil law. This curiously inconvenient dual system is a
vestige of the legal “reforms” that followed the French Revolution, a revolution that was, in fact,
radically anti-clerical (and, in general, just downright godless).
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themselves
1> Where both spouses
are in good faith
FH 17α. Recall FH 6. Suppose that, at the time at which they were wed, Clodice
and Olide had not known that they are related to each other and that, before they found
out that they are, they had acquired a house, a car, and some shares of stock. Both the
house and the car were acquired with money earned by Olide, who worked as a
plumber; the stock was acquired with money earned by Clodice, who taught music
lessons. Who now owns this property? Is it, depending on the item of property in
question, just one or the other “spouse,” namely, whichever was the source of the
money used to acquire that item? Or does all of the property belong to the two of them
together, i.e., are they co-owners of it? And if they’re co-owners, how did this
co-ownership arise? See CC art. 2338.
2> Where
only
one
spouse is in good faith
FH 17β. The same as before, except that, this time, Olide (but Olide alone) knows,
from the get go, that he and Clodice are first cousins and, further, that first cousins
can’t marry each other. What result now? Why?
b/ For the children of the
marriage
FH 18. The same as FH 17α, except that this time, what’s at issue is not who
owns the couple’s property, but rather something else. During her apparent marriage
to Olide, Clodice gave birth to a child, Avarice. Once Clodice and Olide learned the
truth about themselves, they split up and Avarice, now aged 12, went with Clodice.
Clodice now wants Olide to pay child support, but Olide is unwilling. And so
Clodice sues him. In his defense, Olide argues that, inasmuch as he and Clodice were
never truly married, Avarice is not his “legitimate” child and, further, that inasmuch as
he has neither legitimated nor formally acknowledged her nor has she obtained a
“judgment of filiation” against him per CC art. 209 (a “paternity” judgment), he has no
obligation to support her. Is Olide right? Why or why not?
2/ Duration of effects
How long do these effects endure (or, to put the question in negative terms, when
do these effects end)?
a/ General rule: as long as
good faith endures
FH 19. This is a variation on FH 17α. Suppose that, at the time at which they were
wed, Clodice and Olide had not known that they are related to each other; that, before
they found out that they are, they had acquired a house; and that after they found out,
they remained together, at least for a while, during which time they acquired a car and
some shares of stock. Both the house and the car were acquired with money earned by
Olide, who worked as a plumber; the stock was acquired with money earned by
Clodice, who taught music lessons. Who owns the house and the car? Who owns the
stock? Is it Olide alone or is it Olide and Clodice together, i.e., are they co-owners of
it?
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b/ Exception: where the
cause of nullity is the prior
undissolved marriage of one
spouse
FH 20. Recall FH 2. Suppose that, at the time at which they wed, Clodice and
Newt had not known that Clodice had not been validly divorced from Olide; that,
before they found out they she was not, they had acquired a house; and that after they
found out she was not, they remained together, at least for a while, during which time
they acquired a car and some shares of stock. Both the house and the car were
acquired with money earned by Olide, who worked as a plumber; the stock was
acquired with money earned by Clodice, who taught music lessons. Who owns the
house and the car? Who owns the stock? Is it Olide alone or is it Olide and Clodice
together, i.e., are they co-owners of it?.
2] Relatively null marriages
a] All marriages, “at will” as well as
“covenant”
1} Causes of relative nullity
For what causes will a marriage be considered relatively null? Re-read CC art. 95.
a} Lack of capacity to contract
marriage
Recall FH 11. We’ve already established that the supposed “marriage” of the
parties was defective in that one of the spouses lacked the capacity necessary to
contract marriage. We now know that this defect rendered the marriage “null.” But
what kind of nullity was it?
b} Lack of free consent
Recall FH 12α. We’ve already established that the supposed “marriage” of the
parties was defective in that the consent of one of the spouses to the marriage was not
free (was vitiated). We now know that this defect rendered the marriage “null.” But
what kind of nullity was it?
2} Effects of relative nullity
a} Enumeration of effects
What effects, if any, does a relatively null marriage produce? Read CC art. 97.
1/ For the spouses themselves
FH 21. Recall FH 12α. Suppose that, between the time they were wed and the time
at which Rmy (Desirée’s father) died (the time at which Ti-Boy demanded an
annulment), Ti-Boy and Desirée had acquired a house, a car, and some shares of stock.
Both the house and the car were acquired with money earned by Ti-Boy, who worked
as a carpenter; the stock was acquired with money earned by Desirée, who taught
exotic dance lessons. Who now owns this property? Is it, depending on the item of
property in question, just one or the other “spouse,” namely, whichever was the source
of the money used to acquire that item? Or does all of the property belong to the two of
them together, i.e., are they co-owners of it? And if they’re co-owners, how did this
co-ownership arise? See CC art. 2338.
2/ For the children of the
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marriage
FH 22. The same as FH 21, except that this time, what’s at issue is not who owns
the couple’s property, but rather something else. During her brief apparent marriage to
Ti-Boy, Desirée gave birth to a child, Luxure. Once Ti-Boy filed for the annulment,
he and Desirée split up and Luxure went with Desirée. Desirée now wants Ti-Boy to
pay child support, but Ti-Boy is unwilling. And so Desirée sues him. In his defense,
Ti-Boy argues that, inasmuch as he and Desirée were never truly married, Luxure is not
his “legitimate” child and, further, that inasmuch as he has neither legitimated nor
formally acknowledged her nor has she obtained a “judgment of filiation” against him
per CC art. 209 (a “paternity” judgment), he has no obligation to support her. Is
Ti-Boy right? Why or why not?
b} Duration of effects
How long do these effects endure? Re-read CC art. 97.
FH 23. The same as FH 21, except that all three items of property – the house, the
car, and the stock – were acquired after Ti-Boy had filed suit for the annulment. What
result now? Why?
b] Covenant marriages only
Are there any other causes for which a covenant marriage, as opposed to an at will
marriage, might be found relatively null? In other words, are there any causes of
relative nullity that are unique to covenant marriage? Re-read Katherine Shaw Spaht,
“Louisiana’s Covenant Marriage: Social Analysis & Legal Implications,” in Spaht, §
4.2, pp. 83-85.
d Effects of marriage
1) Personal effects
Marriage produces, first of all, certain “personal” effects. What are they? Read
CC arts. 98, 99, & 100.
a) Reciprocal, non-real rights & duties
The first personal effect or, rather, set of personal effects, produced by marriage is
the creation of certain reciprocal rights and duties between the spouses.
1] Nature of the rights & duties: public order
Can these reciprocal rights and duties be altered by contract? Read the following
doctrinal material:
________
Alain Bénabent, DROIT CIVIL: LA FAMILLE intro., at 91 (10th ed. 2001)
Differently from a “free union” [i.e., shackin’ up], marriage engenders on the
personal plane a certain number of reciprocal duties between the spouses.
The spouses cannot possibly push aside the rules that establish these duties
(in particular, not in their marriage contract): these rules are of public order and
constitute the foundation of the family.
________
Then read Spaht, §§ 5.1-5.2, pp. 123-24 (including Favrot).
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2]
Enumeration of the rights & duties
a] Reciprocal duty of fidelity
1} The “negative” dimension
a} Explication
What is the “negative” dimension of the duty of fidelity? Read CC art. 98 cmt. (b).
b} Violation
1/ Substantive law
WARNING: The questions that follow possess strong sexual content, indeed, so
much so that you may think they’ve been lifted from a porno magazine. Sensitive
adults should avert their eyes, and children should stop reading.
How does one breach this duty? In other words, what is “infidelity”? Is
“infidelity” coterminous with “adultery”? Or can one, without committing adultery,
nevertheless be guilty of “infidelity”? If so, what’s the line that divides one from the
other?
And as for adultery itself, what is it? Is it sufficient that the offending spouse
develop an intimate emotional relationship with someone not his / her spouse, or must
there be an intimate physical relationship as well? Is a mere physical relationship,
without a corresponding emotional relationship (e.g., one-time sex with a prostitute),
sufficient? Regarding the physical relationship, what kind must / may it be? Is it
necessary that the offending spouse engage in vaginal intercourse with someone not his
/ her spouse?22 Or, will some “lesser” form of sexual interaction be sufficient, e.g.,
anal intercourse (also called anal sodomy or pederasty or arsenocoetia); oral
intercourse, be it fellatio or cunnilingis (both called oral sodomy); manual stimulation
by one party of the genitals of the other, manual stimulation of the non-genital
errogenous zones (e.g., breasts) of one party by the other; manual self-stimulation of
the genitals (also called masturbation or onanism) by one party in the presence of the
other, while talking with the other on the telephone, while “chatting” with the other
“live” in an on-line “chat room,” while looking at a photograph of the other, etc.?
Finally, must the other “party” with whom the offending spouse commits the requisite
physical acts even be human? What if it’s some “lower animal” (called bestiality)?
What if it’s a “blow-up doll”? What if it’s a computer-generated human image?23 Read
Spaht, § 7.9, pp. 155-58 (Menge), & p. 158, notes 1 (Bonura) & 4 (Maclennan &
Orford); then read the following doctrinal material:
________
Orlando Gomes, DIREITO DE FAMÍLIA no 82, at 126 (7th ed. 1988)
22
If your answer to this question is “yes,” think about the implications of that answer for the
answer to this one: “Can a husband who develops a sexual relationship (anal, oral, and / or manual) with
a homosexual partner ever be guilty of adultery toward his wife?”
23
Also What does it say about the state of sexual mores in our society that a professor of family
law, if he / she wants to cover the subject matter adequately, today has to ask these filthy questions?
Κυριε ελεησον (may God have mercy on us).
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The infidelity can be material or psychological [moral]. If it consists in the
practice of sexual congress with a third person, it constitutes adultery. If it
does not reach to this extreme, if it is concretized in acts that would cause one
to suspect adultery or that constitute, under this aspect, an assault on the
honor of the other spouse, it is qualified as psychological infidelity, which
justifies separation on the ground of grave injury.
________
1 Guillermo A. Borda, TRATADO DE DERECHO CIVIL:
FAMILIA no 246, at 182 (8th ed. 1989)
Concept. – Infidelity consists not only in sexual commerce with third persons,
but also in maintaining relations with them that, without going to this extreme,
can wound the sentiments of the other spouse or lend itself to equivocal
interpretations. As Gatti rightly says, the duty of fidelity has two aspects: one, a
negative, which consists of the duty to abstain from maintaining with another
person relations that injure the profound community of life that marriage
represents; the other, a positive, which consists of the duty to reserve for the
other spouse all one’s affection and one’s amorous sentiments.
________
R. P. Hernán Arboleda Valencia,
DERECHO MATRIMONIO ECCLESIASTICO 199-200 (1970)
In order for adultery to be a cause of perpetual separation, it is required [that
the acts be] consummated [i.e.,] true and perfected – the completed copulation
of one of the spouses with a person who is not his own spouse, and a
copulation, therefore, that is apt for procreation. For this reason, onanistic
copulation [masturbation] does not fulfill this requirement [i.e., consummation] .
...
According to the common opinion, sodomy with one’s own kind –
homosexualism, that is, the carnal act consummated between two persons of
the same sex – , and bestiality, that is, copulation with an animal, are
tantamount to adultery.
The rotal jurisprudence recognizes it. [Why?]
Because, according to classical doctrine, the foundation of the right to
separation for adultery is the division of the flesh that the adulterous spouse
produces upon violating conjugal fidelity [through certain acts]. This “division”
is verified in sodomy and bestiality.
Intentional artificial insemination with the semen of a person distinct from the
husband is also equivalent to adultery . . . .
________
2/ Adjective law
How does one prove a breach of this duty? In other words, what counts as
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“evidence” of adultery? Read Spaht, § 7.9, pp. 151-55 (Arnoult & Bennett), & p. 158,
notes 2 (Williams & Feazel) & 3 (Arsenaux).
c} Sanction
What’s the “sanction,” i.e., the remedy, for the breach of this duty – the “negative”
duty? Read CC art. 101, line 3, & art. 103(2); La. Rev. Stat. 9:307.A(1) & B(1); CC art.
111 & cmt. (c); then read the following doctrinal material:
________
Alain Bénabent, DROIT CIVIL: LA FAMILLE no 159, at 92 (10th ed. 2001)
The duty of fidelity can hardly give rise to forced execution (a chastity belt . . .),
not even by indirect means . . . . Thus, the sanctions can only be of a
repressive nature. For a long time, adultery constituted a crime . . . . [But] the
legislation of July 11, 1975 suppressed the penal sanction altogether.
Infidelity nevertheless remains “fault” for purposes of the civil law and, as such,
is susceptible of three sanctions:
[I] It can constitute a cause for divorce . . . .24
[ii] Outside of divorce, but most often parallel to it, this fault can give rise to a
judgment for money damages to repair the psychological damages that has
been experienced [by the innocent spouse]. 25
[iii] Furthermore, it can constitute a case of “ingratitude” that will justify the
revocation of donations inter vivos made by the offended spouse.26
________
The “positive” dimension
a} Explication
What is the “positive” dimension of the duty of fidelity? Read CC art. 98 cmt. (b);
then read Spaht, § 5.3, pp. 125-26; then read the following doctrinal material, which
hales from Italy:
________
2}
1 Alfio Finocchiaro & Mario Finocchiaro,
DIRITTO DI FAMIGLIA art. 143 n 9, at 267-70 (1984)
The obligations that are created by marriage. In particular: . . . the obligation
24
See CC art. 103(2) & La. Rev. Stat. 9:307.A(1) & B(1).
25
In Louisiana, these “tort damages” take the form of so-called “permanent alimony” that the
at-fault spouse may be required to pay the innocent spouse following the divorce. See CC art. 111 &
McAlpine v. McAlpine (La. 1986), in Spaht, § 10.13, pp. 407-15 (reasoning, in part on the basis of the
authority of Planiol, that the theoretical foundation for permanent alimony is the principle “[w]hatever
act of man causes damage to another obliges him by whose fault it happened to repair it (CC art. 2315)).
26
See CC arts. 1559(1) & 1560.
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of fidelity. -- From marriage are derived the reciprocal obligations of fidelity,
[etc.] . . .
...
In regard to the content of the obligation of fidelity. . ., one must agree with
what Jemolo has written, that is, that fidelity is not reduced to the coarseness
of "don't commit adultery," but ought to be understood in a fuller sense. Only
one of the duties contained in the concept of fidelity ends up being wounded
by adultery.
By this term [fidelity], one alludes not only to the exclusivity of sexual relations
between the spouses, but to all of the manifestations of the more intimate life
of the spouses in three spheres--sentimental, sexual, and genital. That is to
say, it is necessary for the spouses to nurture a reciprocal love and not to
cultivate a love of an analogous nature with a person other than the other
spouse. . . .
In regard now to sexual fidelity, this refers to the obligation to adhere to the
sexual desires of one's spouse and not to give sexual performances to diverse
persons. By the term genital fidelity is understood the obligation not to
consent to artificial insemination . . .
...
Fidelity--understood as the physical and spiritual dedication of one spouse to
the other--ends up assuming, from an a priori perspective, the content of a
normative rule of conduct to which the spouses ought to conform themselves
and, from an a posteriori perspective, . . . a normative parameter for the
evaluation of the behavior of the spouses, one of which the courts must avail
themselves so as to make a proper decision when this duty ends up being
violated.
The duty of fidelity endures for the whole duration of the marriage until its end,
except by virtue of limitations of age or infirmity or other impediments to the
conjugal duty of one spouse or the other, and ceases with divorce.
________
Where did this notion of “positive” fidelity – the so-called “conjugal debt” –
originate? Read the following doctrinal material:
________
Jean-Philippe Levy, COURS D’HISTOIRE DE DROIT PRIVÉ
(LA FAMILLE) 52-60, 120-23 (1966)
[In the medieval era,] the problem [of the “conjugal duty”] is treated at length
only in the canon law, because . . . this problem concerns morality. The
canon law considers that each of the spouses has a real right on the body of
the other. This idea, which goes all the way back to Saint Paul 27, was later
27
The reference is to I Cor. 7:4-5 (“The wife does not have authority over her own body, but the
husband; likewise, the husband does not have authority over his own body, but the wife.”) The Greek
word εξουσιαζει, which I’ve rendered here as “has authority over”–its literal sense, as well as that given
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developed by the theologians and the canonists. It is likewise to Saint Paul
that one is indebted for the expression “conjugal duty” (1st Epistle to the
Corinthians 7:328) the extent of which the canonists tried to specify, as well as
the cases, such as impotence, serious illness, etc,, in which the duty could
cease. Does it cease when one of the spouses makes a vow of continence
or, more precisely, enters religious life? The question was eventually
answered in the affirmative, but only on certain conditions: it was necessary
that the other spouse consent to it and it was thought that he or she ought to
do much the same, that is to say, that he or she, too, enter religious life or, at a
minimum, make a vow of continence.29
In general the [civil] law [of the medieval era] does not speak of this problem; it
is understood. The most it speaks of is the “conjugal domicile.” . . . Although
the question has never been governed by legislative texts, the jurisprudence
has often been required to arrive at decisions that recall those of the
canonists.
________
How do the canonists, who originated this notion of “conjugal duty,” understand
it? Read the following doctrinal material:
________
5 P. Charles Augustine, A COMMENTARY ON CANON LAW can. 1111, at 325-28
(1919)
Husband and wife, from the moment when the marriage is contracted, have
equal rights and duties concerning the acts pertaining to the conjugal life.
it in the King James Version–might also be translated as “has ownership of”–the sense given it in some
modern English translations (e.g., the New International Version).
28
There are two variations of I Cor.7:3 in the still-extant ancient Greek texts of the New Testament.
The more commonly-encountered variation and the one that most critics believe was the original reads
something like this: “Let the husband render/pay [αποδιδοτω] his debt/duty [οφειλην] to the wife and
likewise also the wife to the husband.” The other variation reads something like this: “Let the husband
render/pay [αποδιδοτω] the good will [ευνοιαν] that is owed [οφειλομενην] to the wife and likewise also
the wife to the husband.” (Here “good will,” obviously enough, functions as a euphemism for “sexual
relations.”) Both variations make it clear that, in the view of the author, St. Paul, each spouse owes the
other a “duty” to engage in sexual relations. The same is true of the translation of I Cor. 7:3 that one
finds in the Vulgate (the “official” Latin translation of the Bible that was produced by St. Jerome), the
translation on which the canonists relied: “The man should pay [reddat] his debt/duty [debitum] to the
wife and similarly ftlinethe wife to the husband also.” Here, thanks to the word debitum, the notion of
sexual “duty” comes through loud and clear.
29
This rule, too, can be traced to Saint Paul, at least in part. See I Cor. 7:5 (“Do not deprive each
other, unless [it be] by consent and for a season [only] so that you may give yourselves to prayer and
fasting. . . .”)
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This follows from the primary end or purpose of marriage, when is the
propagation of the human race and the education of offspring. To this end, . .
. the two other purposes of matrimony, mutual aid and the allaying of
concupiscence, are subordinate.
This primary end, however, cannot be obtained without conjugal intercourse
(debitum coniugale). Hence to the right of demanding that debitum there must
necessarily correspond the obligation of rendering it. And since marriage is a
bilateral contract, right and obligation are qual in both parties. It may, of
course, happen that one party is deprive of the right of demanding the
debitum; in that case the other is not obliged to render it. Two cases are
mentioned which may suspend or take away the right of demanding the
debitum: vow and adultery.
...
. . . The right of demanding the debitum is forfeited by adultery, as commonly
understood . . . .
A juridical question may arise from the texts of the Decretals [the compilation
of canon law texts put together by Gratian in the 12th century] which command
a party to render the debitum to the other party when afflicted by leprosy or
some other serious or contagious disease. Is this law binding on the party not
afflicted with such disease? The Decretals would seem to imply that it is, but
modern theologians and canonists take the negative view. . . . [T]he texts
quoted prove how rigorously mutual right and duty must be taken. But the
case of actual drunkenness must be excepted, because such a state is
neither, properly speaking, human, nor fit for a human act like the debitum,
and, besides, may prove injurious to offspring.
With regard to the mode of performing the debitum we only add that it must
correspond with the primary end of marriage. Husband and wife are, per se,
allowed the copula only for the purpose of bringing forth children. Yet this
purpose need not be exclusively and positively held in view. It is sufficient
that it be not positively excluded. Hence married persons need not trouble
themselves with scruples as to the right intention, as long as they do not
employ unlawful means to prevent conception and perform the marital act in
accordance with the laws of nature. . . .
________
b} Violation
How might one violate this – the positive – duty, i.e., breach the “conjugal debt”?
Aren’t there, as ususal, two ways to sin: first, by deficiency, and second, by excess?
First, review Spaht, pp. 123-24 (Favrot & the cases summarized in § 5.3, i.e., Von
Bechman & Shenk); then read the following French jurisprudence and Spanish
doctrine:
________
F---- v. Her Husband (Trial Court of Dieppe, June 25, 1970)
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Given that, following an unfruitful attempt at reconciliation . . ., Madame F----,
who claims that her husband, despite his advanced age, displays a ravenous
sexual appetite, treating his wife as an object at his entire, total, and
permanent disposition, has, on December 1, 1969, [sought] . . . to obtain the
pronouncement of a divorce for the wrongs of her husband;
Given that F----, who contests these allegations, claiming that his wife displays
a cantankerous, moody, and egoistical character, has by reconvention sought
the pronouncement of a divorce for her wrongs;
...
On the principal demand:
Given that it results from the appearance of the parties before the court, which
[hearing] proceeded in a tense atmosphere, that F----, despite his 70 years,
displays behavior going from tenderness to a most extreme indecency and
bestiality; that he cannot pass near his wife without attempting to caress her,
to embrace her, or to lift up her skirt to the end of proceeding to touch her;
that several times each day he pursues her assiduously, covering her with
kisses all over her body; that these aphrodisiacal acts, which appear to F---to be the most natural that can exist and of which he himself declared, "I
amuse myself when I want to amuse myself. I have done what's normal to do
when one is married!," have gotten the better of the health of his wife, to the
point that Doctor V----, in an order of October 28, 1969, prescribed for her a
calm life and the absence of conjugal relations for the duration of a month;
Given that, even though sexual relations enter into the obligations that result
from marriage, one can declare, without displaying prudery (as F---- seems to
insinuate), that those relations ought not to be such that they can break the
health of the spouses; that article 212 of the Code Civil, to the contrary,
imposes on them a duty of mutual assistance; that, by requiring relations that
are at once frequent and, against nature, are manifestly abusive among
spouses of an advanced age, F---- has rendered himself blameworthy of
excesses, brutality, and grave injuries, as contemplated by article 232 of the
Code Civil, which render impossible the maintenance of the conjugal bond,
that there is, as a result, cause for pronouncing divorce between the spouses
F----, at the request of the wife and for the wrongs of the husband;
On the reconventional demand:
Given that F---, who originally imputed to his wife a cantankerous, moody, and
egoistical character, today maintains his reconventional demand by asserting
that the definitive refusal of all sexual life is incompatible with the existence of
marriage;
Given that the principal grief of F---- in regard to his wife is of a sexual nature,
but that his behavior and his bestial demands are injurious to his wife, who, it
should be added, justly calls him a "sex fiend"; that one cannot avail oneself
of one's own turpitude; that there is therefore cause for rejecting the
reconventional demand;
For these reasons, THE COURT accepts the principal demand of Madame
F---- [and] rejects the reconventional demand of her husband . . . .
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________
Jose Luis Lacruz Berdejo & Francisco de Asis Sancho Rebullida,
DERECHO DE FAMILIA no 96, at 182 (1982)
With respect to the ius in corpus [right in the body] and the right of generation,
I believe that we can accept as a good summary of the common points of the
law in all the European orders and in our own up through the recent period the
exposition of Bromley, according to whom “the mutual right to sexual
intercourse continues on when the marriage is consummated, provided that it
be reasonably exercised: a spouse is not obligated to submit to demands of
the other that are disordered or unreasonable or that can bring about damage
to her health.”
________
FH 23.1. For years Pascal and Julie, husband and wife respectively, had enjoyed
what one might call a “varied” sex life: in additional to good old-fashioned vaginal sex,
they had, on many occasions, practiced oral sex (both ways) and even anal sex. But
then Pascal underwent a religious
3} Sanction
What’s the “sanction,” i.e., the remedy, for the breach of this duty – the “positive”
duty? Read La. Rev. Stat. 9:307.B(6) & CC art. 111; then re-read Spaht, § 5.3, p. 126;
finally, read Currier, in Spaht, § 5.3, pp. 126-28.
b] Reciprocal duty of assistance
1} Explication
What does the mutual duty of “assistance” entail? Read Spaht, § 5.3, 1st parag., p.
134; then read the following doctrinal material:
________
Orlando Gomes, DIREITO DE FAMÍLIA no 83, at 127-28 (7th ed. 1988)
The mutuum adiutorium of the canonists is considered to be the most
important of the matrimonial duties, by virtue of its being the spiritual element
that governs and vivifies the marital bond and gives to it the highest ethical
value, but this duty is the most variable in terms of the nature of its content. It
consists of aid and care. The spouses aid each other mutually in all the
circumstances of life, sharing in the sorrows and the joys, one comforting the
other in adversity, one caring for the other in infirmity. It is a matter of a duty of
an eminently ethical content, one that varies in conformity to the dominant
customs. Some Codes include among the causes for the rupturee of the
marital bond [i.e., separation or divorce] the incurable illness of one of the
spouses, but others [such as those of Brazil and Louisiana] do not recognize it,
but rather presuppose that, in this situation above all others, [the healthy
spouse] ought to be more zealous in fulfilling the duty of assistance.
In converting a moral duty into a juridical obligation, the legislation does not
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forget that its determination cannot go beyond the exterior manifestations of
behavior, though investigated facts, that are susceptible of sanction. The
norm on the reciprocal duty of assistance has an eminently relative character,
in such a way that, in its application, one must appreciate the conduct of one
spouse in relation to the other, to the social environment, to the couple’s past,
and to the personal temperaments of the spouses.
The duty of assistance must not be confounded with that of support . . . . The
duty of support consists of economic aid, in contrast to the duty of assistance,
which translates itself into obligations to do. The duty of support, entailing
obligations to give, pertains to the domain of the patrimonial relations between
the spouses, entailing alimony and other economic performances.
________
2} Sanction
What’s the “sanction,” i.e., the remedy, for the breach of this duty? Read La. Rev.
Stat. 9:307.B(6) & CC art. 111; then read Spaht, § 5.5, 2nd parag., p. 134.
c] Reciprocal duty of support
1} Explication
What does the mutual duty of “support” entail? Read Spaht, § 5.4, 1st parag., p.
129. Then read the following doctrinal material:
________
4 Ludwig Enneccerus, Theodor Kipp & Martín Wolff,
TRATADO DE DERECHO CIVIL: DERECHO DE FAMILIA § 8, at 53
(6th rev. 1928; Blas Pérez Gonzalez et al. trs. [German to Spanish] 1947)
The legislation includes the duty of support, sometimes among the “personal
juridical relations of the spouses” and, at other times, among the “patrimonial
law” [of the spouses].
...
I. In principle, [each spouse] has to lend support to [the other], in proportion to
his position in life, patrimony, and means of income. It does not matter
whether or not [the spouse desiring support] is in necessity, whether or not
[that spouse ] can earn his living himself, or, finally, from what social class [that
spouse] proceeds. . . . [I]f the situation of [the supporting souse] is modified,
the content of the alimentary duty is likewise modified. But [the supporting
spouse] cannot be required to change his profession solely in order to increase
his income, and he can fulfill his duty of alimentation at his present position.
...
III. The duty of support between the spouses embraces all the necessities of
the common life, including even medical expenses and those of vacation trips .
. . . [When one] spouse . . . is guilty of fault, for which the other can pray for a
divorce, [this other] alone has a right to demand the support necessary for life.
...
IV. The support is provided in the form that corresponds to the common
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conjugal life. This duty represents, in part, a duty to make in-kind
performances (in the country, living includes, at times, clothing [i.e., one
spouse may have to make clothing for the other]) and, in part, also a duty to
make pecuniary performances (for example, money for the maintenance of the
house).
But, if the spouses live separated [in anticipation of terminating the marriage]. .
., the support is provided by means of cash payments during the [time of
separation]. It is not uncommon for a provisional judicial resolution to impose
on [one spouse] the burden of paying cash support while a judgment of
divorce or nullity is pending. Beyond being obligated for periodic payments, it
is possible that, in certain cases, [the supporting spouse] will have to make
some special one-time performances, principally for unforeseen and
exceptional necessities (repairs to the house, elevated medical expenses, etc.)
________
2} Sanction
What’s the “sanction,” i.e., the remedy, for the breach of this duty? Read La. Rev.
Stat. 9:291 & CC arts. 111 & 113; then read Spaht, § 5.4, 2nd parag., pp. 129-33
(including Chi).
d] Reciprocal duty of cohabitation (?)
Do the spouses have a duty to “live together” as that expression is commonly used
(i.e., to sleep, eat, bathe, entertain themselves and others, etc. under one and the same
roof)? Read the following note:
________
NOTE
Until 1985, Louisiana’s consistent answer to that question had been “yes,” that is, the
spouses did have a duty to cohabit. Article 120 of the Civil Code of 1870, which had
its roots in Louisiana’s earlier codes and, beyond them, in even earlier civil-law sources
(in particular, the French CODE CIVIL), provided that “[t]he wife is bound to live with
her husband and to follow him wherever he chooses to reside; the husband is obliged to
receive her . . . .” This provision was repealed in 1985, for the legislature, offended
(rightly, in my judgment) by the patent sexism of the provision, could not imagine
(wrongly, in my judgment) any other way to remove the offense than to eliminate the
provision altogether.
Thanks to the outright repeal of that article, Louisiana is now, on this point as on so
many others, isolated within the civil-law world. That is to say that nearly all, if not
all, other civil law jurisdictions still require the spouses to live together. Is that
because the rest of the civil-law world, resolutely patriarchal and hostile or at least
oblivious to the cause of women’s liberation, has stuck to the old sexist requirement?
The suggestion is ludicrous: in the civil-law jurisdictions of Western Europe and Latin
America, that cause has been carried at least as far as it has in Louisiana. No, what
those jurisdictions did was to adopt a different “solution” to the problem of the old
requirement’s sexism than did Louisiana: instead of eliminating the requirement
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altogether, they simply rendered it “gender neutral.” Consider these examples: (i)
Argentina: CÓDIGO CIVIL art. 199 (“The spouse must live together in the same house,
unless, due to exceptional circumstances, they see themselves obligated to separate
residences temporarily. . . .”) & art. 200 (“The spouses will fix by common accord the
place of the residence of the family.”); (ii) France: CODE CIVIL art. 215 (“The spouses
are mutually obligated to a community of life. The family residence is at the place that
they choose by common accord.”); (iii) Italy: CODICE CIVILE art. 143 (“Through
marriage the husband and wife acquire the same rights and assume the same duties. A
mutual obligation to . . . cohabitation derives from the marriage.”), art. 144 (“The
spouses . . . fix the residence of the family according to the requirements of both and to
those prevailing for the family.”), & art. 145 (“In case of disagreement, each of the
spouses may apply, without formalities, for the intervention of the court, which . . .
[will] attempt to reach an agreed solution.”); (iv) Mexico: CÓDIGO CIVIL art. 163 (“The
spouses will live together in the matrimonial domicile. The matrimonial domicile will
be considered to be the place established by the spouses by common accord . . . .”); (v)
Quebec: CIVIL CODE art. 392 (“The spouses have the same rights and obligations in
marriage. . . . They are bound to make a common life.”) & art. 395 (“The spouses
choose the family residence together.”); (vi) Spain: CÓDIGO CIVIL art. 68 (“The spouses
are obligated to live together . . . .”) & art. 70 (“The spouse shall fix the matrimonial
domicile by mutual consent. In case of discrepancy, the judge shall decide, bearing in
mind th interest of the family.”)
I wonder if one could argue that, notwithstanding the repeal of former Louisiana Civil
Code article 120, spouses in Louisiana still have a duty to live together (though now
on a gender-neutral basis). Could one do so on the basis of “natural law” theory: that
(i) the legislature cannot repeal civil law rules that are mere restatements of “natural
law” rules (a proposition embraced by the Louisiana Supreme Court in Reynolds v.
Swain, 13 La. 193 (1839)) and (ii) the spouses have a “natural” duty to live together, at
least in the absence of extraordinary circumstances (a proposition supported by
tradition, anthropology, and just plain ol’ common sense)? Or, more simply, could
one argue that there is now a “customary” law rule in Louisiana to this effect? I hope
so. The idea that there can be a marriage, properly so called, in which the spouses are
not obligated to live together is about as senseless as the idea that there can be a circle
in which there’s no curvature.
________
b) Familial authority
Does marriage impose on the spouses any sorts of duties / confer on them any
sorts of powers with respect to the direction of the “family” that they’ve founded? If
so, what duties / powers? Read CC arts. 99, 215, & 216.
c) Powers with respect to names
Does marriage alter the names of the spouses in any way? For example, does the
wife’s name “automatically” change to that of her husband? If not, is each spouse
nonetheless authorized to use the other’s name? Explain. Read CC art. 100; then
read Spaht, § 5.7, p. 134.
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2) Real effects: rights in & powers over “community
property”
What effect, if any, does marriage have upon the real rights that the spouses may
have brought to the marriage or may acquire during the marriage? Read Spaht, pp.
139-44 (through § 6.7). As you read through this material, be sure to read the
legislation cited in it, especially the Civil Code provisions.
a) In general
b) The options
1] The “legal regime”
a] Classification of community property
b] Control of community assets
1} General rule: equal, independent
powers
2} Exceptions:
a} Concurrence
b} Exclusive control
c] Liability for & payment of community
obligations
d] Termination
b) The “contractual regime”
3) Adjective effects: interspousal bar to litigation
Can the spouses sue each other during marriage? If so, are there any limitations?
Read La. Rev. Stat. 9:291.
e
Dissolution of marriage
Marriage can, of course, be dissolved. But this dissolution admits of degrees.
The dissolution can be “total,” meaning that the bond between the spouses is totally
severed and that whichsoever of the spouses is then alive is free to enter into another
marriage. Or the dissolution can be mere “partial” or “limited,” meaning that the bond
between the spouses is only partly severed, so that certain of the effects of marriage
(though not all of them) are extinguished, and that the spouses are not free to enter into
another marriage. We will consider each of these possibilities, in turn, below.
1) Total dissolution
What are the different possible causes of the “total dissolution” of marriage?
Read CC art. 101; then read Spaht, § 7.1, p. 147.
a) Death of a spouse
Here, of course, “death” means not only actual death, but also presumed death.
b) Divorce
1] Definition
What is “divorce”? Consider these proposed definitions: (i) from Brazil: Orlando
Gomes, DIREITO DE FAMÍLIA no 160, at 274 (7th ed. 1988) (“Divorce is the dissolution of
a valid marriage, pronounced during the lives of the spouses, by means of a judicial
decision, by virtue of an agreement of wills, the ‘conversion’ of judicial separation, or
one of causes exhaustively enumerated in the legislation.”); (ii) from France: 1-3 Henri
& Léon Mazeaud et al., LEÇONS DE DROIT CIVIL: LA FAMILLE no 1404, at 636 (Laurent
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Leveneur rev., 7th ed. 1995) (“Divorce is therefore the rupture of the conjugal line
pronounced judicially during the lifetimes of the spouses upon the demand of one or
both of the spouses.”) (iii) from Spain: Jose Luis Lacruz Berdejo & Francisco de Asis
Sancho Rebullida, DERECHO DE FAMILIA no 119, at 230 (1982) (“‘Divorce’ is the name
of the legal institution that permits the dissolution of the bond of matrimony during the
lives of both spouses by the effect of a judicial decision.” )
2] Historical origins
Whence, historically speaking, did our institution of divorce arise? Read the
following doctrinal material:
________
Jean-Philippe Lévy, COURS DE D'HISTOIRE DU DROIT PRIVÉ
(LA FAMILLE) 60-66 (1966)
With regard to divorce, periods of liberty have alternated with periods of
rigorism. It is religious ideas that have played the determinative role. But
one should be aware, at the very outset [of this study], that no religion has
gone as far as Christianity in the prohibition of divorce.
________
Max Kaser, ROMAN PRIVATE LAW § 58, at 247-49
(Rolf Dannenbriig tr., 2d ed. 1968)
In keeping with a Roman marriage being in the nature of a social fact, divorce
(divortium) was not a juristic act any more than was the conclusion of
marriage, but was a factual, private process which was neither dependent on
fixed grounds of divorce nor was it judicially controlled. Roman divorce
consisted in the termination by one or both of the spouses, with the intention to
end the marriage, of the joint matrimonial life.
Until the end of the classical period this freedom of divorce was held to be an
inviolable principle which followed from the nature of marriage: libera
matrimonia esse antiquitus placuit; agreements not to divorce or for a penalty
in the event of divorce were void (Alex. C. 8. 38. 2). This freedom of divorce
was at first restricted only by penal sanctions under sacral law in the event of
abuse, and furthermore, by the censorial supervision of morals; later economic
considerations played a part, because the husband had to return the dowry
(for details vid. infra, § 59 II 6).
The law of divorce descended from the case of the unilateral repudiation
(repudium) of the guilty wife by the husband, as a result of adultery or other
serious misconduct. Evidence of this are the customary formulae for divorce
which allegedly stood even in the XII Tables (4. 3): baete foras (go away); tuas
res tibi habeto; the taking back of the keys. The first instance of a divorce of
the innocent wife has been transmitted from the third century B.C. (on the
ground of childlessness; cf. Gell. 4. 3. 1 et seq.). A divorce declared by the
wife is probably of a still later date.
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From quite early times there was no longer any necessity for the consent of
the paterfamilias of one of the spouses or of the wife’s tutor. Until into the
Principate the wife's paterfamilias could dissolve her marriage by taking her
back to his house, vid. ante, VI 2.
Even during the classical period there existed no requirement of form
whatsoever for the declaration of divorce (repudium). It was common, but not
prescribed, for the divorcing spouse to send this declaration by messenger
(nuntium remittere). — The presence of seven witnesses required under the
lex Iulia de adulteriis (Paul. D. 24. 2. 9) concerned only divorces for adultery,
and was there justified by special reasons.
If the wife stood under manus, apart from divorce, the termination of this power
was needed. For this purpose remancipatio, a composite formal act, was
developed, probably after the time of the XII Tables: the husband (or his
paterfamilias), by mancipatio fiduciae causa, transferred the woman to her
previous paterfamilias or a trustee who then released her by manumissio; G. 1.
115; 137.
...
Under the influence of the Christian dogma of the indissolubility of marriage
the picture of Roman divorce changed radically during the postclassical period
....
________
Jean-Philippe Lévy, COURS DE D'HISTOIRE DU DROIT PRIVÉ
(LA FAMILLE) 60-66 (1966)
[1. Law of] The Late [Roman] Empire
Christianity provoked an energetic response against these usages [free and
rampant divorce].
As the first Christian Emperor, Constantine, wrote:
“[hereafter] one will no longer repudiate [one’s spouse] lightly or on the basis of
feeble pretexts.” Repudiation was available only for grave causes (a rather
modern idea at such an early date), and the list of these causes was greatly
reduced: it included only true crimes and the adultery of the wife. The list was
slightly elongated by Theodosius II and Valentinian III. Finally, Justinian
reworked the entire matter in his Novella 117, Chapters VIII and IX.
1 Divorce (divortium) by mutual consent was forbidden, except when bona
gratia () took place. It was a question of a cause that was not imputable to
the fault of either of the spouses, for example, a vow to enter into religious life,
impotence, or absence. . . . Outside of these cases, divorce by mutual
consent was forbidden by Justinian. But this measure was too mature for the
state of the mores of the time. Upon the death of Justinian (565), his
successor, Justin II fully re-established the liberty of divortium by mutual
consent (Novella 140).
2 Repudiation (repudium) was permitted only ex justa causa (for just cause),
that is to say, for the fault of the other spouse. The list of faulty acts that
authorized one to repudiate one’s spouse was limited and fixed. It was a little
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longer than that of Constantine: one finds there crimes or diverse sorts of
misconduct. Then, outside of [suffering] divorce . . ., the wrongdoer was
threatened with diverse punishments. If the repudiation was. . . sine ulla
causa (without legitimate cause), it was prohibited.
3 Sanctions.
The sanctions [for wrongful divorce or repudiation] were applied, first of all, to
those who divorced or repudiated [their spouses] outside of the legal causes.
But the sanctions were applied equally to a party at fault who had been
repudiated for just cause.
These sanctions never consisted of the nullity of the divorce. If the judge
intervened, it was not to pronounce the divorce; it was after the fact. And in
any case the divorce subsisted. The sanctions were corporeal and pecuniary.
[Here are some of] the corporeal sanctions: Justinian decided that an
adulterous wife would be placed in perpetuity in a convent and that she who
had repudiated her husband without just cause could not remarry for a period
of five years. The pecuniary punishments, however, were the more important.
The husband had to return the dowry to the wife, to execute his donation
proper nuptias, and, beyond that to pay her an indemnity up to the limit of 1/4
of his goods. Conversely, the wife lost her dowry and her donation propter
nuptias and, sometimes, a part of her personal goods. . . .
[2.] Ancient French Law
Let us pass now to the Frankish epoch, the law of which is rather confusing.
It ended up being profoundly modified by the canon law, which, for several
centuries up until the Revolution, established the indissolubility of marriage.
Let us note, in passing, the exceptional character of the Frankish legislation.
Though it appears to us to be commonplace [because we are familiar with the
canon law], in reality no other [secular] legislation has ever forbidden divorce
entirely. Only the canon law itself has gone farther.
[a]. The Formation of the Canon Law Theory of the Indissolubility of Marriage.
The point of departure for this [doctrine of] indissolubility is found in the
Gospels, when Christ declares, “What God has joined together, let no man
separate.”30 In addition, marriage was [considered to be] a sacrament, one
that marks the spouses with a divine sign that cannot be effaced.
Nevertheless, [the doctrine of] total indissolubility was not consecrated until
around the year 1200. On the one hand, traditional usages, [built up] through
the centuries, greatly resisted it. On the other hand, in one of the Gospels
themselves–Saint Matthew–, there was an exception: divorce appeared to be
possible in the case of the adultery of the wife. 31 Two currents [of thought]
reigned in the early Church. The one, more lenient, admitted divorce in the
case of adultery. That was the position of, for example, Tertullian and John
Chrysostom. The other, to the contrary, represented to some extent by Saint
Augustine, favored the total and absolute prohibition of divorce in all cases.
30
The reference is to Mk. 10:9 & Matt. 19:6.
31
The reference is to Matt. 19:9.
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The capitularies of the middle of the 8th century, rendered after councils had
been held at Soissons, Compigne, and Verberie in the presence of legates
of the Pope, were still, in some sense, “transactional.” Divorce was admitted,
if not in the case of adultery (for, in that case, the husband could rid himself of
her by killing her), then at least when the spouse had committed other faults,
not to mention the possibility of a separation without fault in the case of
leprosy, impotence, and the entry into the religious life of one of the spouses.
The other spouse could then remarry.
The turnabout is situated at the beginning of the 9 th century. After Hincmar of
Reims, all the authors began to pronounce themselves in favor of
indissolubility. Gratian, with much embarrassment and after many hesitations,
wrote that he who had hunted down his adulterous wife could not remarry.
His contemporary Peter Lombard was clearer still. This restrictive conception
triumphed at the beginning of the 13th century with Pope Innocent III. From
that point, divorce disappeared. The word divortium subsists, but it refers only
to the nullity of the marriage or yet to legal separation. This doctrine was to
be forcefully reaffirmed in the 16th century by the Council of Trent in response
to objections from Protestants, and it has been maintained up through the 20 th
century and the Second Vatican Council. It will be noted that the Eastern
Church of the Greek rite has kept divorce for grave causes, most notably, for
adultery, in conformity with the most liberal tradition of the ancient Fathers of
the Church.
[b]. Legal Separation.
This rigorism was accompanied by some temperaments. Nullity of marriage,
which was pronounced rather liberally, constituted in some sense a safety
value. But the mor important temperament consisted of the creation of legal
separation. This institution was invented by the decretalists of the 12 th
century, in particular, by Pope Alexander III, with a view, first of all, to
reconciling contrary [canon law] texts, some of which admitted divorce and
other of which forbade it completely. What was permitted, in the view of the
reconcilers, was only the institution that was to take the name divortium quoad
thorum, literally, “separation as to the bed,” or, in French, separation of body.
1 For what “causes” was legal separation admitted? The essential cause
was the adultery of one spouse or the other. At the end of the 14 th century,
officials in Paris pronounced legal separation in this case only, whereas
officials in other ecclesiastical jurisdictions pronounced in more widely. Other
cases were admitted little by little: heresy or apostasy of one of the spouses;
plotting by one against [the life of] the other, a cause that ended up being
interpreted widely to encompass every particularly grave brutality. As for
mutual consent, it was accepted as a cause of legal separation only when its
purpose was to permit one of the spouses to enter religious life or to join the
clergy or yet when it was accompanied by a vow of continence. This
institution corresponds to the divortium bona gratia of Justinian.
2 Legal separation, differently from Roman divorce, was not a purely private
act. It had to be pronounced by a judge of the Church following an in-depth
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inquest.
3 The effect of legal separation was to suppress the conjugal duty and the
obligation of cohabitation. But the marriage bond and sacrament subsisted,
and the separated spouses could not remarry. That is the essential difference
between legal separation and divorce.
[c]. The Reintroduction of Divorce.
Starting in the 16th century, the indissolubility of marriages was attacked by
the Protestants, who did not see in marriage a sacrament. What they wanted
was not at all liberty to divorce, but rather only the possibility of divorce in
certain limited cases that corresponded closely to those of legal separation.
The transactional solution of legal separation did not appear to them to be
valid, and Luther caricatured it by saying that it what it allowed to subsist was
“a marriage in painting and in dream.”
In France, divorce was not
reintroduced until the Revolution.
1 It was by the decree of September 20, 1792, enacted on the day of its
dissolution, that the Legislative Assembly reestablished divorce, giving as its
reason that marriage was only a civil contract, as the Constitution of 1791 had
proclaimed. Divorce was allowed for three causes. First, the mutual consent
of the spouses, following diverse attempts at reconciliation and a trial
separation. Second, the incompatibility of humor or of character, according to
certain requirements.
Finally, there was divorce for any of several
legislatively-determined motives. Seven such motives were recognized: those
that are currently admitted in French law and a certain number of others, such
as dementia, abandonment, absence, and emigration. Correlatively, legal
separation was suppressed. This regime subsisted only a dozen years.
2 With the Code Napoléon a limited reaction was produced. One finds
there only the three current causes for divorce (conviction, brutality or grave
injury, and adultery) and divorce by mutual consent. As a measure of
compromise, the Code Napoléon reestablished legal separation, but with an
important temperament: it could, at the end of a three-year delay, be
“converted” into divorce.
With the Restoration [a few years later], the reactionary movement went much
farther. A law, enacted in 1816, proclaimed that divorce was abolished in
France.
It was only in 1884 that the Third Republic renewed the
Revolutionary tradition on this point, as it did on so may others. Divorce was
then reestablished [as it had been before], except for divorce by mutual
consent. This state of the law has not changed noticeably since then.
________
Then read Spaht, § 7.2-7.7, pp. 147-50. Then read the following doctrinal material:
________
John de Witt Gregory et al., UNDERSTANDING FAMILY LAW 222-26 (2d ed. 2001)
I.
Fault Grounds for Divorce and the No-Fault Revolution
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Historically, public policy in the United States has placed considerable value
on the institution of marriage and has discouraged divorce except in extreme
circumstances. Regulation of both marriage and divorce in this country has
reflected this perspective. A 1945 Virginia case, Jacobs v. Jacobs, illustrates
the prevailing judicial philosophy of the mid-20th century. The Virginia supreme
court declared that it could not guarantee a happy relationship, but would only
cancel the parties' errors of judgment upon a serious, statutory marital breach.
This country, as well as earlier societies, traditionally regarded divorce as a
statutory remedy available exclusively to an innocent spouse whose partner
has caused the breakdown of the marriage by committing some enumerated
type of egregious marital fault. American law borrowed the traditional fault
grounds which English law had developed for application in divorce a mensa et
thoro and applied those grounds to absolute divorce. Under this system, a
guilty spouse could not obtain a divorce, nor would a court award a divorce
when both spouses were found to have contributed to the marital breakdown.
Accordingly, the grounds for marriage dissolution originally were narrow and
few. Adultery, extreme cruelty, and desertion by a spouse commonly were
considered by most state legislatures to constitute serious enough injuries for
awarding the innocent spouse a divorce. The statutory lists of marital fault
became expanded in many states to include insanity, conviction of a crime,
habitual drunkenness and drug addiction, and other perceived evils.
Because divorce itself was discouraged, very strict and specific proof of fault
was required for dissolving a marriage. Unlike other civil actions, the plaintiff in
a divorce case could not merely receive a default judgment without proof that
the other spouse had in fact committed the enumerated wrongs. A divorce
case could be dismissed for insufficient evidence, and many jurisdictions
employed divorce referees to assure that the alleged facts had actually
occurred. As a result, many couples in unhappy marriages fabricated fault
grounds and resorted to perjury, often with the assistance of legal counsel.
Others left the jurisdiction to obtain a divorce in a state with more liberal
divorce laws. to The subversion of state divorce laws led to corruption of the
legal system and disrespect for divorce attorneys and their practices.
Critics of the fault-based divorce system in the fields of both law and the social
sciences long contended that divorce should be viewed as a regrettable but
necessary legal consequence of a failed marriage. Furthermore, those critics
argued, the breakdown of the marital relationship usually resulted from the
incompatibility and irreconcilable differences of both spouses, rather than the
unilateral "fault" of one "guilty" spouse. No convincing data existed to
demonstrate that liberal divorce grounds would generate unstable marriages or
that strict divorce laws prevented or reduced the incidence of marital discord.
By the second half of this century, a strong movement had formed, demanding
that the legal system allow failed marriages to be dissolved in a peaceful and
honest manner.
Widespread divorce law reform began in the United States in the 1960s and
1970s, culminating in what has been referred to as the "divorce revolution."
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No-fault divorce legislation began in 1966 when a California Governor's
Commission recommended that divorce grounds be limited to "irremediable
breakdown" and insanity. That recommendation became the law of California
in 1969.
Noting a "virtual unanimity as to the urgent need for basic reform," and
describing the fault-based divorce ground system as "an unfortunate device
which adds to the bitterness and hostility of divorce proceedings," the National
Conference of Commissioners on Uniform State Laws proposed the Uniform
Marriage and Divorce Act [UMDA] in 1970. The UMDA attempts to "reduce
the adversary trappings of marital litigation" and encourages divorcing parties
"to make amicable settlements of their financial affairs," in part by designating
the no-fault ground of irretrievable breakdown of marriage as the sole ground
for divorce.
The American Bar Association approved the UMDA and
recommended its passage by the states in 1974.
Section 302 of the UMDA currently provides that a court shall enter a decree
of dissolution of marriage when it finds that the marriage is "irretrievably
broken." The Act mandates that legal conclusion when either the parties have
lived separate and apart for more than 180 days or there exists "serious
marital discord" adversely affecting the attitude of one or both of the parties
toward the marriage.
By 1985, all states had adopted some from of no-fault divorce, either by
designating a no-fault ground as the exclusive basis for divorce or by adding
such a provision to existing fault grounds. Currently, some states have
adopted irreconcilable differences or irretrievable breakdown as the sole
ground for divorce, while an additional 20 states list one of those grounds in
addition to traditional fault-based grounds. The remaining states provide for a
no-fault type divorce based on living separate and apart for a stated period of
time, in addition to traditional fault-based grounds.
II. Current Divorce Concerns and Statistics
Although divorce was once relatively rare in the United States, it is now
commonplace. During the decade between 1970 and 1980, the divorce rate
more than doubled, and more than a million divorces currently are granted
each year, a figure that has remained fairly constant throughout the 1980s and
1990s. An estimated one-half or more of American marriages will end in
divorce. The average duration of marriage was seven years in 1987and
remarriage of divorced persons accounts for nearly one-half of the marriages
in this country. The continuing high divorce rate is one of the most dramatic
alternations in contemporary American family life.
According to one judge, "Approximately half of all the civil cases heard in the
major state courts involve domestic matters. . . . It is not surprising, therefore,
that a state civil court's most important function, at least with respect to the
number of lives touched, is in the resolution of family matters."
With no-fault divorce now available in all states, divorce litigation has largely
shifted from moral issues to economic controversies, primarily property division
and child and spousal support, and to child custody disputes. Large law firms
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are increasingly involved in family law practice with their more prosperous
clients, whose divorce actions often require corporate and tax advice as well
as the more traditional aspects of family law.
Most divorcing Americans, however, are not affluent, and some commentators
have criticized the negative financial impact of no-fault divorce legislation on
persons in lower economic brackets. Sociologist Lenore Weitzman, for
example, has documented the severe economic impact of no-fault divorce on
women and children. Weitzman concluded that gender neutral rules have
falsely assumed that women are equally capable of earning adequate livings
as their former husbands following divorce. The results have deprived divorced
women, especially older homemakers and those with small children, of the
legal and financial benefits that the old law provided. While Weitzman does
not advocate a return to the traditional fault-based divorce system, she urges
that the new law reflect "a continuous process of correction and refinement . . .
to follow through on the road to fairness, equity, and equality in the legal
process of divorce."
Uncomplicated, no-fault divorce has also been charged with having a negative
impact on children of divorced parents. Without significant safeguards, no-fault
laws may contribute to long-term psychological damage to the children of
divorce.
The American Law Institute has proposed a financially based "Principles of the
Law of Family Dissolution: Analysis and Recommendations" that argues for
the total abolition of all fault-based factors in marital dissolution. Some recent
commentators, on the other hand, have argued that fault factors still serve a
legitimate function in contemporary society.
In summary, the no-fault divorce revolution is still undergoing reassessment and modification in an attempt to meet the current and future needs of
our changing society.
________
3] Occasions for divorce
Our law recognizes a number of situations in which one or the other or both
spouses may obtain a divorce, what one might call “occasions for divorce.” Some of
these situations give rise to a right of divorce regardless of the kind of marriage in
question, be it an at-will or a covenant marriage; beyond these “common “ occasions
for divorce, there are still others that are specific to one or the other kind of marriage.
a] Occasions for divorce applicable to all kinds
of marriage, both “at will” and “covenant”
The only “common” occasions for divorce – there are only two – both entail acts
of “fault” by a spouse. What are these acts of fault?
1} Adultery
Re-read CC art. 103(2). What is “adultery”? How does one prove it? See supra
pp. 88-89.
WARNING: The hypothetical that follows contains “adult” material.
FH 24. Yesterday Willy, husband of Hilda, was a very naughty boy. First, he
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engaged in vaginal intercourse with his assistant Jennifer. Then, he permitted his
other assistant Monica to perform oral sex on him (fellatio). Next, he performed oral
sex on Monica (cunnilingus). Then, he performed anal sex on Barney. Next, Barney
performed anal sex on him. Then, he engaged in vaginal sex with Daisy, Barney’s
cow. Next, he permitted Monica to fondle (with her hands only) his genitals until he
reached orgasm. Then, he fondled Monica’s genitals (with his hands only) until she
reached orgasm. Next, while talking with Monica on the phone, he fondled (with his
hands only) his own genitals until he reached orgasm. Then, while looking at some
“nude” photos of Jennifer, Monica, Barney, and Daisy, he fondled (with his hands
only) his own genitals until he reached orgasm. Next, he had “vaginal” intercourse
with Penelope, a life-size, inflatable, more-or-less anatomically-correct plastic (human,
female) doll. Then, he fondled (with his hands only) Monica’s breasts until she was
quite aroused. Finally, he stripped naked and jumped into bed with his lawyer Janet,
with the intention of having goodness-knows what kind of intercourse with her, but,
apparently exhausted from his other sexual encounters and having no Viagra on hand,
was unable to get an erection, at which point he and Janet just rolled around on and
over each other, their genitals often touching, but no penetration every occurring, for
about half an hour. Can Hilda now divorce Willy on the ground that he has committed
adultery? If so, through which act(s), exactly, did he commit it? Why?
2} Serious felony
Read CC art. 103(3); then read Spaht, § 7.10, at 159-60 (including Nickels); then
read the following doctrinal material, which interprets the revised version of the
apparent source of our article 103(3), i.e., French Code civil art. 23232:
________
3 Gabriel Baudry-Lacantinerie et al.,
TRAITÉ THÉORIQUE ET PRATIQUE DE DROIT CIVIL: DES PERSONNES
nos 62, at 38-38, & 65-67, at 41-42 (2d ed. 1902)
62. New article 232 provides: “The condemnation of one of the spouse to an
afflictive and infamous punishment will be for the other a cause for divorce.” It
is a peremptory cause, as is adultery. The pronouncement of a divorce
cannot be refused once the fact of the condemnation is certain. [The rationale
behind this rule is that] it is undesirable that the spouse of the condemned can
be forced to remain chained, by the line of marriage, to a being that the
society, by noting his infamy, has cut off from its heart, morally speaking.
It is necessary that the condemnation have been pronounced by a French
repressive jurisdiction. In fact, foreign repressive judgments are not received
for application in France. . . .
...
65. The condemnation to an afflictive and infamous punishment for a cause for
divorce only when it has become definitive. In other words, it is necessary
that the condemnation not be vulnerable to the “ordinary” modes of review
32
The earliest predecessor to CC art. 103(3) was a verbatim transliteration of this French article.
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and, by this word . . ., one must understand the modes that are normally open,
such as the opposition [rough equivalent of a motion for a JNOV], the appeal,
and the pourvoi en cassation [equivalent to certiorari] . . . .
...
66. The spouse who has experienced a condemnation to an afflictive and
infamous punishment cannot oppose the rendition of a divorce judgment on
the ground that he has served his sentence or that it has prescribed or that, by
way of grace, he has obtained a complete remission [pardon] or a
commutation of his sentence: the infamy attached to the condemnation
nonetheless subsists. It would be different if the condemned had been
rehabilitated [cleared] or granted an amnesty, because rehabilitation and
amnesty efface the infamy that attaches to the condemnation.
67. The text provides: “The condemnation of one of the spouses.” Thus, . . . a
condemnation prior to the marriage could not serve as the basis for a divorce
demand. But as long as the condemnation is pronounced during the
marriage, it does not matter whether the crime was committed before or after
[the marriage was celebrated].
________
FH 25α. Not long ago, Olide, husband of Clodice, was convicted of aggravated
armed robbery and was sentenced therefor to life imprisonment at hard labor. His case
is now on appeal to the Third Circuit. Before the appeal is decided, Clodice sues
Olide on the ground that he has been convicted of a crime and sentenced to
imprisonment at hard labor. Olide responds by filing a declinatory exception of
“prematurity,” arguing that Clodice will not have grounds for divorce until his
conviction and sentence are affirmed on appeal. Does Olide’s exception have merit?
Why or why not?
FH 25β. Not long ago, Olide, husband of Clodice, was convicted of aggravated
armed robbery and was sentenced therefor to life imprisonment at hard labor. But
before he served even day one of his sentence, the Governor granted him a full pardon.
Clodice, humiliated by the whole affair, wants to divorce Olide. Can she now divorce
him? Why or why not?
FH 25γ. The same as before, except that, this time, Olide’s conviction and
sentence are overturned on collateral review (federal habeas corpus) on the ground that
the police who had investigated the crime and the District Attorney who conducted the
prosecution had “framed” Olide. Upon his release, Olide sues the Gueydan City
Council (employer of the police) and the District Attorney’s Office for damages for
false arrest and malicious prosecution. The evidence of the authorities’ collusion is so
great that defendants, instead of contesting the suit, simply offer him “whatever he
wants” to settle. Olide takes a cool $1,000,000. What result now? Why?
b] Occasions for divorce applicable to
particular kinds of marriage
1} “At will” marriage
Of the distinctive occasions for divorce in an at-will marriage – there are only two
– , neither entails fault by a spouse. Thus, we encounter, here, a truly “no fault” form
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of divorce.
a} Living separate and apart . . .
Both of these occasions of divorce entail that the spouses have “lived separate and
apart” for some period of time. But what does that mean? Read the following
jurisprudence.
__________
Riley v. Riley, 501 So 2d 814 (La. App. 4th Cir. 1986)
Plaintiff, Theodore Riley, obtained a judgment of divorce from his wife, Shirley
Riley, on the ground that they had been living separate and apart for more
than a year.
She has appealed on the ground that they were not living
“separate and apart” because they were residing in the same house even
though in separate residences.
The pertinent jurisprudence is summarized in Succession of Le Jeune, 221 La.
437, 59 So.2d 446 (1952). This was an action by relatives of the decedent to
have certain property classified as her separate property because it was
acquired with funds derived from her earnings from a rooming house she
operated while she was living separate and apart from her husband. The
husband occupied an apartment in a garage at the rear of the property. The
issue was whether the spouses were living separate and apart. Holding that
this is the same sort of voluntary separation essential to an action for divorce
under [CC art. 102 or 103(3)] the court observed:
It is, of course well settled that, where the parties live under the same
roof and are recognized by neighbors as husband and wife, an action
for divorce will not lie even though they occupy separate quarters
within the premises and otherwise do not engage in the usual
functions of the marital relation, as this does not constitute living
separate and apart within the meaning of the law.
In the present case the house at 914 Valence Street consists of three
independent apartments.
Appellant, Shirley Riley, occupied the upstairs
apartment, and appellee occupied a lower apartment. These apartments are
each autonomous with separate kitchens and baths.
There are no
connecting stairways or doors between them. Access to each apartment is
from separate doors on the outside of the house. The parties did not indulge
in the conjugal relationship after appellee moved to the downstairs apartment.
Three independent witnesses testified that they did not live together but lived
in these separate apartments.
In his reasons for judgment the trial judge correctly noted that the basic tests
for determining whether the spouses live separate and apart are that they
occupy separate “dwellings” and that they must live apart in such a manner
that their separation is visible in the community and others are aware of the
separation; and he found that the apartments in this case constituted
separate dwellings even though they were in the same building and that others
in the community were aware of the separation.
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Appellant argues that this conclusion is contrary to the court's decision in Le
Jeune. In this case the husband occupied the outside apartment because he
was ill. The wife had purchased the materials for him to build the apartment,
she cooked his meals, and he served as a handyman around the premises.
These facts are clearly distinguishable from the instant case where the parties
lived independently of each other and this was perceived by others to be the
case.
Appellant also relies on Billac v. Billac, 464 So.2d 819 (La.App. 5th Cir.1985)
for the proposition that occupancy of separate apartments within the same
house cannot constitute living separate and apart. However, the Billac case,
like several others cited by appellant, involved occupancy by the parties of
separate bedrooms within the same dwelling unit. The court observed that
“the parties must actually reside in different dwellings” in order to be
considered separate and apart, and the separation must be “visible to the
community”, that is, it must be in such a manner that others are aware of it.
These requirements*816 are satisfied by the facts of the instant case.
Accordingly, the judgment appealed from is affirmed.
_______
Boyd v. Boyd, 348 So. 2d 121 (La. App. 4th Cir. 1977)
A wife appeals from a judgment which refused her a judgment of separation
for abandonment and granted her husband a divorce for two years of living
apart.
The wife argues that the trial judge erred in reasoning that she had not proved
that the husband “constantly refused to *122 return”, as required by La.C.C.
143 for separation on the grounds of abandonment. But the trial judge's more
basic ruling was that the husband did not leave the marital dwelling in 1976 as
alleged. Instead, the trial judge found, the parties had separated in 1973 or
earlier and had since then lived apart continuously. The trial judge thus
rejected much of the wife's (and the 18-year-old son's and a neighbor's)
testimony in accepting that of the husband (and two of his neighbors). We
cannot say the trial judge thereby erred.
Thus the wife's only legal argument is that the husband's admitted staying at
her house one night during the two years prior to suit (sleeping in the children's
room while the wife was in the house) prevents a divorce for “living separate
and apart continuously . . . ”, as required by [CC art. 102 or 103(1)]. We
disagree.
Although the living apart must be visible to the community and therefore is not
present when spouses merely live in separate bedrooms in the same house,
Hava v. Chavigny, 1920, 147 La. 330, 84 So. 892, a husband's staying at the
wife's house only one night (in the children's room) during a period of more
than two years would not change the neighbors' impression of the spouses'
“living apart . . . in such a manner that those in the neighborhood may see
that the husband and wife are not living together”, as the required living apart
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is described in Arnoult v. Letten, 1924, 155 La. 275, 99 So. 218. Even less
indicative of not living apart is the husband's allowing the wife to go with him
and the children on a family-day picnic given by his employer.
Affirmed.
__________
1/ . . . before the petition is filed
Read CC art. 103(1). The read Spaht, § 7.11, at 161-66 (including Adams).
FH 26. Several years after Jean Sot and Flo had wed, Jean Sot developed
full-blown schizophrenia, which required that he be placed in the state mental hospital
in Jackson. Nine months later Flo, convinced that Jean Sot would never recover,
decided she’d best “get on” with her life. And so, she sued Jean for a divorce under
CC art. 103(1), alleging that they’d already lived separate and apart for six (6) months.
What result? Why?
FH 27. Several years after Ti-Boy and Desirée had wed, Ti-Boy lost his job. In
search of work, he left Gueydan and moved to New Orleans. Time went by. Three
months later, Ti-Boy finally returned home for a visit, during which time he ate lunch
with Desirée, cleaned up the yard, and picked up some papers; he and Desirée did not,
however, have sexual relations and he didn’t even stay the night, though he did, at
least, kiss Desirée good-bye. Three months after that, he returned home again, this time
to pick up his shotguns and Cajun music CDs. Again, however, there was no sex and
he did not stay the night, though he did, at least, hug Desirée good-bye. Three months
later still, he returned home, this time to file suit against Desirée for a divorce under
CC art. 103(1). What result? Why?
2/ . . . after the petition for
divorce is filed
Read CC art. 102. Read Spaht, § 7.12, pp. 168-72 (including Tomeny; note on
Daigle; Parker; & notes on Hirstus & Kimball).
What’s meant by the expression “rule to show cause” as used in CC art. 102?
Like every other “rule to show cause,” this one is, first of all, a kind of “contradictory
motion” (as is, for example, a motion for judgment on the pleadings or a motion for
summary judgment), see CCP art. , one in which the movant asks the court for “[a]n
order [or] decree . . . commanding [the other party] to appear as directed, and present to
the court such reasons and considerations as [that party] has to offer why a particular,
order, decree, etc., should not . . . take effect, or be executed, as the case may be,
BLACK’S LAW DICTIONARY (entries for “rule to show cause” and “show cause order”).
In the case of CC art. 102, the “rule to show cause,” which is directed to the opposing
spouse, orders him to appear in court to explain, if he can, why the divorce requested in
the petition should not be granted. Of course, given the prerequisites for divorce
under CC art. 102, the only possible explanation that might be offered in opposition to
the petition are that the parties had not, in fact, lived “separate and apart” for six
months prior to the filing of the “rule.”
What “showing” (i.e., proof, evidence) must be made before the court may grant a
petition for a CC art. 102 divorce? The answer is provided in CCP art. 3956:
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________
Art. 3956. Evidence of facts in divorce action
The facts entitling a moving party to a divorce under Civil Code Article 102
may be established by:
(1) The petition for divorce.
(2) (a) The sheriff's return of service of the petition.
(b) The sheriff's return of service of the petition showing personal
service on the defendant if the parties were living together at the time
of the filing of the petition.
(c) The return receipt when service is effectuated pursuant to R.S.
13:3204.
(d) Waiver of the service of petition.
(3) The rule to show cause and the affidavit required by Code of Civil
Procedure Article 3952.
(4) The sheriff's return of service of the rule, or by a waiver of that service.
(5) The affidavit of the mover, executed after the filing of the rule, that the
parties have lived separate and apart continuously for at least one
hundred eighty days prior to the filing of the rule to show cause and are
still living separate and apart and that the mover desires to be divorced.
________
FH 28α. A few years after Jeff and Oline had wed, they began to have “trouble,”
stemming, in the main, from Oline’s perception that Jeff, as she put it, had been “taking
me for granted.” And so they began to see a counselor. At first, things seemed to
improve. But then, like a bolt out of the blue, Oline announced that she was “moving
out” and was “filing for divorce.” When Jeff asked her why, Oline simply said, “I’m
just not happy in this marriage any more” and “I just don’t feel about you the way I
used to.” The very next day, as Oline moved out of the house and into her apartment,
her attorney filed a petition for divorce on her behalf. On the advice of her attorney,
Oline then asked Jeff to “waive service of process” in writing, and he, fearful of
antagonizing her, obliged. One hundred eighty (180) days to the day after Jeff waived
service of process, Oline’s attorney filed a “rule to show cause,” asking that Jeff be
ruled into court to show, if he could, why Oline’s petition for divorce should not be
granted. Jeff, who was representing himself pro se, then filed a document entitled
“response” in reply to the rule, in which he contended that Oline’s petition should not
be granted because she had “failed to prove that I did anything that would justify
ending our marriage: she hasn’t shown that I committed adultery; that I abused her or
any member of her family physically, or even emotionally; that I failed to fulfill my
husbandly duties to her; that I even offended her in any way, etc.” Jeff further
complained that “if either of us has done anything wrong, it’s Oline: by divorcing me,
she’s breaking the vow she made to me to be my wife ‘til death us do part’.” What
should – must – the court do with Oline’s “rule”? Why?
FH 28β. The same as before, except that, this time, Oline has begun to have
second thoughts as the 180-day deadline draws nigh. In particular, she’s discovered
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that she doesn’t much like living alone and, looking ahead to the future, she’s begun to
fear (i) she won’t be able to find another man as “good” as Jeff (the men she’s dated so
far – yes, she started dating before the divorce was final – have not exactly impressed
her) and (ii) she won’t like being poor (her income pales in comparison to Jeff’s).
And so, her attorney does not file a rule to show cause once the deadline arrives.
Instead, she calls Jeff, informs him of the change in her thinking, and invites him to
dinner at her apartment to “talk things over.” Jeff’s response is “Let me think about it
and I’ll get back to you.” First thing the next morning, Jeff hires an attorney, who, at
Jeff’s direction, that very afternoon files a rule to show cause why a divorce judgment
should not be granted. When Oline is served with Jeff’s rule, she is, of course,
shocked and hurt. In an attempt to thwart Jeff’s rule, she then directs her attorney to
move the court for a “voluntary dismissal” of her petition. What should – must – the
court do now? Why?
FH 28γ. The same as FH 28β, except that, this time, Jeff does file a rule to show
cause and Oline doesn’t file a motion for voluntary dismissal. Instead, the status quo
just continues (i.e., Oline’s divorce petition remains pending), and continues, and
continues. Two years pass. Then Oline, having finally decided to “go through with
it” (i.e., the divorce), files a rule to show cause. Jeff opposed the rule, arguing that
Oline had “abandoned” her petition for divorce and requesting, on that basis, that the
petition be dismissed. What should – must – the court do now? Why?
________
NOTE
Thanks to the enactment of CC arts. 103(2) and 102, which occurred in 1990,
Louisiana has the dubious distinction of having one of the most liberal divorce
regimes in the United States (where only a minority of states allow divorce for
“living separate and apart” for a specified period of time without more) and of
having the single most liberal divorce regime in the “Western” part of civil-law
world.33
Not even the highly secularized and arguably post-Christian
jurisdictions of the Netherlands and France permit spouses to terminate their
marriages as whimsically as does Louisiana (that is, without the consent of the
other spouse and for no reason at all).
To obtain a divorce in the Netherlands, the petitioner (even if the other spouse
does concur) must allege and then prove that the marriage is “broken in a
durable fashion.” Dutch Civil Code arts. 151 & 154. Even if the petitioner can
make that showing, however, the petition will be denied if the defendant can
prove that “the durable break is, in a preponderant measure, imputable to the
spouse who has made the demand.” Id. art. 152. In any event, the judge
33
By “Western part” I mean, of course, Europe and Latin America. I must limit my generalization
to this part of the civil-law world, for there’s another part – namely, that in which the civil law has been
“mixed” with Islamic law – in which divorce, inasmuch as it is governed by the Islamic part of the
mixture, is as readily available as it is here.
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cannot issue a divorce judgment until he has “acquired the conviction that any
reconciliation is excluded.” Id. art. 156.
To obtain a divorce in France, the petitioner (if the other spouse does not
concur and if the other spouse is not guilty of fault) must allege and then prove
that there has been a “prolonged rupture of their common life.” French Code
civil art. 237. To meet his burden of proof, the petitioner must show, among
other things, that the spouses have lived “separate in fact for six years” (!). Id.
________
2} “Covenant” marriage
Of the occasions for divorce that are unique to covenant marriage, all but one
entails fault by a spouse.
a} Occasions entailing “fault”
Read La. Rev. Stat. 9:307.A(1)-(4) & (6) & B(6); then read Spaht, § 7.14, pp.
173-79. As Professor Spaht points out in this part of her text, the law regarding the
grounds for divorce in a covenant marriage reproduces, with some variations, the law
regarding grounds for divorce in a standard marriage as it stood prior to 1990. Here’s
a little snippet of the voluminous jurisprudence in which that old law was interpreted
and applied, one that’s fairly representative of the whole:
________
Saacks v. Saacks, 612 So. 2d 925 (La. App. 4th Cir. 1993)
The matter before us comes from a trial court judgment granting a legal
separation of Sandra and Jay Saacks based upon mutual fault due to cruel
treatment. Sandra Saacks, the plaintiff, appeals to this Court, claiming that the
trial court was in error for finding her at fault.
Sandra Perret and Jay Saacks, a police officer, were married in 1969.
They had two daughters, Stacy and Sherry Saacks, both of whom were majors
at the time this matter went to trial. On May 22, 1989, Sandra Saacks filed a
petition for separation based on cruel treatment by Mr. Saacks, which
rendered their living together insupportable. Mrs. Saacks further requested a
temporary restraining order prohibiting Mr. Saacks from harassing Mrs. Saacks
at her home or place of employment, and prohibiting him or his agents from
alienating community assets. In June of 1989, the couple reconciled.
On December 6, 1989, Sandra Saacks amended her May 22, 1989 petition for
separation to include allegations of an adulterous affair by her husband, further
cruel treatment by Mr. Saacks consisting of repeated arguments since their
reconciliation and a failure by Mr. Saacks to inform his wife of his
whereabouts, and physical threats and violence by Mr. Saacks causing Mrs.
Saacks to leave the matrimonial home. In her amended petition, Mrs. Saacks
prayed for immediate divorce, based on Mr. Saacks' infidelity, or alternatively,
legal separation, based on Mr. Saacks' infidelity and/or cruel treatment. Again
Mrs. Saacks requested a restraining order preventing Mr. Saacks from
harassing her at home or at work and preventing Mr. Saacks or his agents
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from depleting or alienating marital property. Mrs. Saacks further asked for
alimony pendente lite and a judgment finding her free from fault so that she
may later seek permanent alimony. Mrs. Saacks also asked that she be given
occupancy of the family home in Chalmette and that Mr. Saacks be ordered to
vacate the premises.
On December 8, 1989, the trial judge granted Mrs. Saacks a temporary
restraining order against her husband, prohibiting him or his agents from
physical abuse or harassment of Mrs. Saacks at her residence or place of
employment and prohibiting him or his agents from alienating or encumbering
any of the community assets. Furthermore, Mr. Saacks was ordered to show
cause why a preliminary injunction should not be issued against him, and why
he should not be evicted from the matrimonial home.
Mr. Saacks, on December 27, filed an answer and reconventional demand. In
his answer, Mr. Saacks denied ever having an extramarital affair or physically
striking his wife. His reconventional demand alleged cruelty on the part of Mrs.
Saacks: that she continually and without provocation argued with him, that she
ridiculed and embarrassed him in public, and that she physically harmed him
by throwing objects at him in private and in public.
A hearing was held on March 27, 1991, at which Mrs. and Mr. Saacks, Alan
Jaeger, Thomas Gray, Philip Aleshire, and Albert Spiess testified. Sherry
Saacks, the daughter of Sandra and Jay, also testified at a later date. The
testimony revealed an extremely bitter breakup between Sandra and Jay
Saacks with numerous arguments which often became physically violent.
Much of the testimony conflicted as each party attempted to blame the other
while making him or herself appear blameless.
After hearing the seemingly endless testimony of this couple's breakup, the
trial court found both parties at fault, and granted a legal separation based on
mutual cruelty. The trial judge explained in his reasons for judgment that the
testimony of the witnesses were conflicting and inconsistent, specifically noting
the testimony of the Saacks' daughter, Sherry, as "prompted by her feelings of
love or displeasure toward the respective parents at the specific time of
testimony and other statements under oath." The trial judge concluded that
"the matter reflects classic examples of mutual fault as the cause for
separation." Since that judgment, Mrs. Saacks has filed for, and has been
granted, a divorce based upon living separate and apart from Mr. Saacks for
over a year. Mrs. Saacks now appeals the trial court judgment which granted
the legal separation, arguing that the trial judge was in error for finding her at
fault. Mr. Saacks does not appeal the judgment which found him also at fault.
Louisiana law is clear that a trial court's finding of fault in a divorce or
separation proceeding is a factual determination deserving of much deference
by this Court and which should not be disturbed absent manifest error. To be
legally at fault a spouse must be guilty of cruel treatment or excesses which
compel a separation because the marriage is insupportable.
Because only Mrs. Saacks appealed, the sole issue before us is whether there
was ample evidence to support the trial court's finding of fault on her part,
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which thereby made the marriage insupportable.
At the hearing, evidence was presented alleging numerous actions by Mrs.
Saacks which support a finding of cruelty on her part. Testimony from Mr.
Saacks, as well as other witnesses, indicated that Mrs. Saacks began many of
the couple's arguments, that Mrs. Saacks frequently became abusive and
excessively hostile after having a few drinks, and that on several occasions
she physically injured her husband, once by throwing a flower arrangement at
him and again by striking him in the head drawing blood. Furthermore, Mr.
Saacks testified that on one occasion, Mrs. Saacks called his office and falsely
reported that his father had suffered a serious heart attack. When Mr. Saacks
returned home, after driving well over the speed limit with his police lights and
siren on, he found her on the couch laughing at the cruel joke she had played
on him. Other testimony alleged that Mrs. Saacks began several arguments in
public, and that she was once asked to leave a restaurant because of the
commotion she was creating. Even Al Jaeger, Mrs. Saacks' employer, who
was called to testify on her behalf, admitted during cross-examination that he
recalled Mrs. Saacks being referred to by her colleagues as "Dr. Jekyll and Mr.
Hyde" with respect to her emotional state after having a few drinks.
Additionally, the trial judge was free to consider the testimony of the daughter
which clearly indicated the inexcusable manner with which their child had been
dragged into the marital problems of her parents.
Mrs. Saacks argues on appeal that her actions could not constitute fault
because they were directly in response to her husband's outrageous actions
and not an independent cause of the break up. The appellant cites to several
cases in support of this argument. However, those cases are factually
distinguishable from the case presently before us. The trial record reveals
actions substantially more severe than the simple nagging and bickering
inevitable in all marriages. The record clearly indicates that Mrs. Saacks often
became physically violent. Furthermore, her abusive and hostile temper toward
her husband after having a few drinks, her cruel joke of falsely reporting her
father-in-law's heart attack, her embarrassing public behavior toward her
husband, as well as other facts alleged in the witnesses' testimony, sufficiently
support the trial court's holding of cruel treatment by Mrs. Saacks. Our own
review of the record leads us to the same conclusion that the "matter reflects
classic examples of mutual fault as the cause for separation."
For the foregoing reasons, the judgment of the trial court is affirmed. All costs
of this appeal are to be assessed against the appellant.
________
Bartholomew v. Bartholomew,
593 So.2d 822 (La. App. 4th Cir. 1992)
Plaintiff, Margie Bartholomew, appeals from a judgment of separation from bed
and board finding both she and defendant, James Bartholomew, at fault.
James Bartholomew did not appeal or file an answer to his wife's appeal. We
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now reverse.
Margie filed suit for separation on March 2, 1990, alleging nonsupport and
cruel treatment. James filed a similar suit on March 8, 1990 alleging
abandonment and cruel treatment.
The parties were married in 1954. At the time of the trial, Margie, age 53,
and James, age 59, had been married thirty-six years. Two sons were born of
the marriage; at the time of trial in June 1990 they were ages 35 and 33. At
some point in 1989, it is not clear exactly when, James began accusing his
wife of having an affair.
James testified that he believed Margie was having an affair because she left
him for a month-and-a-half to stay with her sick mother. He said she did not
call him or come to visit him during that period. Margie also used to go out
dancing with her sisters, brothers and the couple's sons. Margie testified, and
James admitted, that he used to go out dancing without his wife. James
eventually moved out of the marital bedroom and began sleeping on the sofa
because of his belief that Margie was seeing another man. He stated that he
had not slept with his wife for seven months prior to their separation on
February 28, 1990.
On December 20, 1989, Margie left the marital abode to spend Christmas with
the couple's sons, both of whom reside in Marrero, Louisiana. She asked
plaintiff to come along but he refused to go, apparently because he did not
want to be with her. She visited the house on one occasion for a couple of
hours, but did not return to live until January 15, 1990. After Margie left to
spend Christmas with the couple's sons, James stopped giving her money.
The last money he gave her was for the December installment payment on her
automobile. He attempted to cancel all of her credit cards but apparently she
re-opened some accounts. Margie had never worked because, as James
admitted, he did not want her to do so. Margie left the matrimonial domicile
for good on February 28, 1990.
The trial court gave no reasons for its finding Margie at fault. A determination
of fault is factual finding which will not be disturbed unless the record evidence
furnishes no basis for it, or it is clearly wrong. . . .
The grounds alleged by James in his petition were abandonment and cruel
treatment. To constitute fault, the cruel treatment or excesses must be of a
nature which compel a separation because the marriage is insupportable.
Although James made vague references to Margie's absences from the
matrimonial domicile, the evidence shows only two specific absences, when
her mother was sick and Christmas of 1989. The first absence was out of
necessity, the second was insufficient to render the couple's living together
insupportable. Nothing in the record suggests that Margie was guilty of cruel
treatment or excesses of the type rendering the marriage insupportable.
Margie admittedly left the matrimonial domicile on February 28, 1990, never
intending to return, as evidenced by her filing of suit for separation on March 2,
1990. A finding of fault on the basis of abandonment is warranted only if the
party leaving the matrimonial domicile withdrew without lawful cause. We
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presume the trial court found no lawful cause for Margie's withdrawal from the
matrimonial domicile.
James testified that he had not slept in the same bed as Margie for seven
months prior to her withdrawal from the matrimonial domicile. He told her he
did not want to have sex with her because "[he] had "deep in [his] mind that
[she] had another man." He continually accused Margie of having an affair.
There is no evidence to support such a belief.
James' testimony at trial
consisted of vague and unsupported allegations. He admittedly stopped
giving her money after December 1989. He admitted to his son Glenn that he
was trying to make Margie jealous. He told his other son Welton on a number
of occasions that he wanted to divorce Margie. Margie testified that James
had told her he wanted a divorce. All of these factors together amount to just
cause for Margie leaving the matrimonial domicile. All of these excesses,
taken together, rendered living with James insupportable.
The trial court's finding of fault on the part of Margie was clearly wrong.
For the foregoing reasons, we reverse the judgment of the trial court insofar as
it found fault on the part of Margie. We affirm the judgment of the trial court in
all other respects.
We remand this matter for a determination of any
permanent alimony to be awarded Margie.
________
b} The occasion that entails no
“fault”: living two (2) years months
separate and apart
Read La. Rev. Stat. 9:307.A(5); then read Spaht, § 7.14, pp. 179.
4] Defenses (affirmative) to divorce
Read Spaht, § 8.1, p. 181.
a] That
recognized
by
legislation:
reconciliation
1] Definition & nature
What does “reconciliation” mean in this context? Read Spaht, § 8.2, pp. 181-82;
then read the following doctrinal material:
________
Henri & Léon Mazeaud et al., LEÇONS DE DROIT CIVIL: LA FAMILLE
no 1437, at 690 (Laurent Leveneur rev., 7 th ed. 1995)
Article 244 of the [French] Civil Code: “A reconciliation of the spouses that has
occurred since the alleged facts [i.e., those on which the petition for divorce is
predicated] prevents [the complaining spouse] from invoking them as a cause
of divorce.” Pardon, it is said, effaces fault. But this formula is not
technically precise here; in fact, reconciliation implies not only pardon by the
innocent spouse, but the acceptance of this pardon by – the accord of – the
guilty spouse: a reconciliation is a bilateral act. Here, then, the pardon, in and
of itself, is not a basis for rejecting the divorce . . . .
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________
Jose Luis Lacruz Berdejo & Francisco de Asis Sancho Rebullida,
DERECHO DE FAMILIA §115, at 223-24 (1982)
The reconciliation of the separated spouses; concept . . . . – As a juridical
institution, reconciliation presupposes the renewal of the conjugal life on the
part of the separated spouses, with the intent of ending the juridical situation of
the separation and its effects, that is to say, the intent that the full efficacy of
the subsisting marriage take hold anew.
Reconciliation is generally regarded as a juridical act of the law of family (Díez
Picazo, García Cantero). According to Gangi [and Mazeaud], it is bilateral; for
Royo Martínez, it is rigorously unilateral. Nevertheless, some authors
(Pajardi) call its nature as a juridical act into question. For Zorrilla, it’s a
matter of a renunciation of the juridical situations that has been created. Cicu,
Carbonnier, and others consider it to be a simple state of fact – and also of
animus – on the basis of which the law renews certain juridical effects. And so
on . . . . It appears that the will that is necessary – a will that is contrary to the
separation (contrarius actus) – endows reconciliation with sufficient
significance so that it can be regarded as a juridical act . . . . Because it’s
often the case that neither one party of the other is wholly to blame or wholly
innocent, reconciliation many times will be presented as a an act of bilateral
structure.
________
2] Prerequisites
Whatever acts may be required for a reconciliation, is it necessary that the acts be
“free” (in particular, that the will to reconcile be not vitiated by duress, fraud, or error)
if the reconciliation is to be effective? Doesn’t this conclusion follow inescapably
once reconciliation is classified (as the foreign authors quoted above suggest it should
be) as a juridical act? Read Spaht, § 8.2, pp. 191-94 (Hickman & Tablada).
FH 30. After Clodice discovers her husband, Olide, in bed with her best friend,
Faith, Clodice orders him out of the house, a demand with which he complies. In
short order, Clodice files suit against him for divorce and, in connection therewith,
demands both alimony pendente lite and permanent alimony. The trial court
immediately grants Clodice an award of alimony pendente lite of $1000/week. Alarmed
at the prospect of having to pay this sum every month for the next six months, Olide
decides that he’d better try to “patch t’ings up” with Clodice. And so he goes to her,
tells her he’s sorry for what he did, that Faith “means nothing” to me, that “you are my
only love,” that “I’ve changed,” and that, if she’ll be so kind as to take him back, he’ll
“never do anything like this again.” In truth, however, he has no intention of changing
either himself or his behavior: to the contrary, he is still “seeing” Faith (in fact, he’d
“seen” her just that morning) and intended to continue “seeing” her for the indefinite
future. In any event, Clodice, persuaded that Olide is sincere, lets him return home.
For the next week or so, Clodice and Olide live together under the same roof and, on at
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least three occasions, engage in sexual intercourse. Then Clodice happens to overhear
a telephone conversation of Olide in which he says, “Faithee, you know I love you
better than Clodice. I can’t wait to see you tonight.” At that, Clodice, kicking and
screaming, drives Olide from the house. Clodice then presses forward with the
divorce suit and insists that Olide pay her alimony pendente lite from the date on which
the court had issued the order for it, including that which was due for the week during
which they’d resumed living together. In response, Olide refuses to pay any of the
alimony and, further, asks that the petition for divorce be dismissed, contending that he
and Clodice had “reconciled.” What result would you predict? Why?
3] Scope
With respect to what kinds of marriage can reconciliation be used as a defense to
divorce? Just covenant marriages? Just at-will marriages? Both?
With respect to what kinds of divorce does reconciliation constitute a defense? Is
it only “fault-based” divorce? Or does this defense work as well for “no-fault”
divorce? Read Spaht, § 8.2, pp. 187-89 (excerpt from Lemoine).
4] Proof
What acts between the spouses are sufficient to justify the inference that they have
reconciled? Is it enough, without more, for them to have sexual intercourse again? If
so, how much is enough? Is it enough, without more, for them to resume living
together under the same roof? What if, once they resume living together, their
relationship is purely platonic and /or they do so out of economic necessity? Read
Spaht, § 8.2, pp. 185-91 (Lemoine); the read the following doctrinal material:
________
Henri & Léon Mazeaud et al., LEÇONS DE DROIT CIVIL: LA FAMILLE
no 1437, at 690-91 (Laurent Leveneur rev., 7th ed. 1995)
The proof of reconciliation can be sought for by the courts in all the
circumstances of the matter. Thus, the resumption of the common life or an
exchange of correspondence can constitute an indicium of reconciliation; but
they do not necessarily establish it. A simple treve, a cohabitation imposed by
the circumstances, or an attempt at reconciliation does not constitute
reconciliation nor even pardon. Some phrase of encouragement written to an
incarcerated spouse proves more pity than the will to reconcile. Line 3 of new
article 244 of the Civil Code is very clear in this regard: “The temporary
maintenance or the temporary resumption of the common life is not considered
to be a reconciliation if they resulted only from necessity or from an effort at
being conciliatory or from the educative needs of the children.” A true
reconciliation can result only from the accord of the will – the decision – of the
parties, formed after reflection, to pardon each other of their wrongs and to
take up again the conjugal life. . . .
________
FH 29. Unhappy in her marriage to Ti-Boy, Desirée, his wife, moves out of the
matrimonial domicile into an apartment and files a petition for a divorce under CC art.
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102. During the next few months, the two of them from time to time get together for
lunch or dinner, sometimes as his place and sometimes at hers, to discuss their
relationship. On several of these occasions, the two end up engaging in sexual
relations. And, on several of those occasions (i.e., when they have sex), one or the
other ends up spending the night with the other at the other’s place. One time they
even went away together for a weekend in new Orleans, during which time they
repeatedly had sexual relations. Even so, when seven months had passed from the
date on which she’d filed the petition for divorce, Desirée filed a rule to show cause
why the divorce should not be granted. In his reply, Ti-Boy argued that the petition
for divorce should be dismissed because the parties had reconciled – repeatedly – over
the past seven months. At the trial of the rule, the following exchange took place
between Desirée and counsel for Ti-Boy:
Q Now, Desirée, exactly what did you think you were doing having sex with
Ti-Boy, spending the night with Ti-Boy, taking a romantic vacation with Ti-Boy,
if it wasn’t to reconcile with him?
A Well, I didn’t think I was reconciling with him through these very acts.
What I was thinking was: “OK, I’ll spend time with him, even be intimate with
him, to see if I can come to feel about him and about us the way I once did. And
if I can, then – but only then – will I reconcile; but if I can’t, we’re finished.”
You see, it was sort of a test – a preliminary step – to see if I wanted to reconcile.
But it was not, itself, a “reconciliation.”
The trial court, siding with Ti-Boy, dismissed the petition. What result would you
predict on appeal? Why?
b] Those recognized by jurisprudence &
doctrine
1} Connivance
a} Explication
What is the defense of “connivance”? Read Spaht, § 8.4, p. 197 (including
Schwartz).
b} Scope
With respect to what kinds of marriage can connivance be used as a defense to
divorce? Just covenant marriages? Just at-will marriages? Both?
With respect to what kinds of divorce does connivance constitute a defense? Is it
only “fault-based” divorce? Or does this defense work as well for “no-fault” divorce?
2} Excuse due to psychic disorder
a} Explication
What is the defense of “psychic disorder”? Read Spaht, § 8.5, pp. 198-202
(including (i) Courville & (ii) Seltzer, down to the ellipsis on p. 202); then read the
following doctrinal material:
________
Alain Bénabent, DROIT CIVIL: LA FAMILLE no 250, at 153 (10th ed. 2001)
. . . The non-responsibility of the author of the objectively faulty behavior
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likewise constitutes an affirmative defense to demand for a divorce. It is only
as a matter of convenience that this case is classified among the various
instances of affirmative defenses, for, to be technically precise, in this case
there is simply a total lack of fault. The notion of fault requires not only a
material element, but also an intentional element, which implies the
consciousness, on the part of the author of the material element, of the
abnormal and faulty character of his actions. When one of the spouses
adopts an attitude that is objectively faulty, but does so in an unconscious
matter or under the dominion of a state of morbidity or malady, in particular, as
a result of difficulties of an emotional or mental nature, the jurisprudence finds
that his behavior cannot be truly imputed to him as fault and that a sanction
cannot be pronounced on account of it.
There is here a grave difficulty. It is certainly understandable that one cannot
reproach someone for behavior that he has not deliberately chosen and that
he suffers under the dominion of a malady. It is appropriate, however, not to
ignore completely the interest of the other spouse, who [might otherwise] have
to put up with behavior that, objectively considered, is of such a nature as to
tender the maintenance of the conjugal line intolerable. . . .
________
1-3 Henri & Léon Mazeaud et al., LEÇONS DE DROIT CIVIL: LA FAMILLE
no 1432-2, at 685 (Laurent Leveneur rev., 7th ed. 1995)
The imputability of the acts to the defendant. – This [prerequisite to fault-based
divorce] signifies that the complained-of acts must proceed from their author
out of a conscious and free will. Acts accomplished by a spouse under the
dominion of mental trouble or against his will, under the effect of a constraint,
are not constitutive of a fault that would provide a ground for a divorce.
No doubt a demented person does engage civil responsibility [i.e., incurs tort
liability] by his acts, but it is a question there [i.e., in a tort case] only of
reparations. To the contrary, divorce for fault represents a sanction that
strikes the faulty spouse; without doubt a civil sanction, but still a sanction – a
punishment. This is why one requires, just as one does in penal matters, that
the spouse have been conscious of the bearing of his act.
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FH 30. Not long after Ti-Boy and Desirée had wed, Desirée began slipping out of
the house each night after Ti-Boy would fall asleep. When Ti-Boy finally discovered
this, he decided to investigate. And so, one night he followed her. Desirée drove to a
seedy hotel in the “red light” district of Lafayette, went into a room, and, a few minutes
later, emerged from the room wearing a halter top, mini-skirt, fish-net stockings,
stiletto heels, and more make-up than Tammy Faye Bakker. Then she walked out to
the “strip” and took up a post near an intersection. At that point, Ti-Boy accosted her:
“Desirée Boudreaux, what in the devil do you think you doing?” Desirée responded,
in an accent Ti-Boy had never heard before from her lips before, “Sugar, I ‘m afraid
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you’ve got the wrong gal. My name’s Delilah Fontaine. But if you want, I’ll be your
Desirée Boudreaux for you for the next hour.” Ti-Boy then forced her into his car and
drove her straight to the psychiatric ward of Gueydan General Hospital, where the
doctors, not to Ti-Boy’s surprise, diagnosed her with “schizophrenia and
multiple-personality disorder.” When, in the course of her subsequent treatment, it
was revealed that Desirée (Delilah?) had practiced prostitution on a number of
occasions during her marriage to Ti-Boy, he filed suit against her for divorce on the
ground of “adultery.” What result would you predict? Why?
b} Scope
With respect to what kinds of marriage can psychic disorder be used as a defense
to divorce? Just covenant marriages? Just at-will marriages? Both?
With respect to what kinds of divorce does psychic disorder constitute a defense?
Is it only “fault-based” divorce? Or does this defense work as well for “no-fault”
divorce?
3} Mutuality of fault: recrimination &
comparative rectitude
a} Explication
What is the defense of “mutuality of fault” or, as it’s sometimes called,
“recrimination” or “comparative rectitude”? Read Spaht, § 8.3, pp. 194-97; then read
the following doctrinal material:
________
Alain Bénabent, DROIT CIVIL: LA FAMILLE no 254, at 154-55 (10th ed. 2001)
These excuses [those that serve as defenses to divorce] can be based on the
behavior of the other spouse. Article 245 enunciates the principle in this way:
“The faults of the spouse who demands divorce can take away from the acts
for which he reproaches his spouse the character of gravity that would have
caused them to supply grounds for divorce.” In other words, the behavior of
one of the spouses that would be objectively faulty can find itself deprived of
its gravely faulty character by virtue of the attitude of the other spouse. The
behavior of one spouse cannot, in fact, be envisioned in an isolated and
abstract fashion, without one’s taking into consideration the relations that have
been established in the midst of the couple. And it is certain that if one of the
spouses gravely neglects his duties, that can explain and, to a certain extent,
excuse the faults of the other. To take a crude example, one can easily
understand that an injured spouse may end up by “responding” in identical
terms. In such a case, the objective excess that can constitute the subject
matter of his complaint finds an excuse in the faults of the other spouse. And
there is no need that the excuse be concomitant to the fault which follows from
it nor that this fault be a necessary consequence of that excuse.
The jurisprudence has often found, in particular, the existence of such an
excuse for the benefit of a wife who has been insulted by the adultery of her
husband. The courts readily conclude that the aggressive, cantankerous, or
injurious behavior of the wife is explained and excused by the unfortunate
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situation of which she may have knowledge.
________
1-3 Henri & Léon Mazeaud et al., LEÇONS DE DROIT CIVIL: LA FAMILLE
no 1433-1, at 688 (Laurent Leveneur rev., 7th ed. 1995)
It must be understood that the defendant can try to contest the veracity of the
facts alleged against him. But even if he cannot succeed at this, he is not left
without any weapon. The legislation permit him, in fact, to respond to the
demand by demonstrating that his spouse has also committed faults against
him. . . .
. . . [It is a] fundamental defense, a radical neutralization of the initial demand.
Such a defense is formed when the faults of the plaintiff come to take away
from the facts for which the plaintiff reproaches his spouse the character of
gravity that would have caused it to provide a ground for divorce. For
example, the brutal character and the violent ways of a husband can take
away this gravity from the adultery of a wife who has sought protection and
comfort from a lover. This evaluation is committed to the sound discretion of
the trial court judges.
________
FH 31. Several years after Jean Sot and Flo had entered into a covenant marriage,
Jean started carrying on an affair with his assistant, Monique. When Flo learned of it
(by which time the affair had been going on for over a year), she was furious.
Determined to “get even,” she had a one-night stand with her lesbian friend, Ellen, and
then told Jean all about it. Indignant and disgusted, Jean promptly moved out of the
house and filed suit against Flo for a divorce on the ground of adultery. In her
defense, Flo charged Jean with “rank hypocrisy, inasmuch as he’s been unfaithful to
me many more times and on a far longer basis than I’ve been to him.” What result
would you predict? Why?
b} Scope
With respect to what kinds of marriage can mutuality of fault be used as a defense
to divorce? Just covenant marriages? Just at-will marriages? Both?
With respect to what kinds of divorce does mutuality of fault constitute a defense?
Is it only “fault-based” divorce? Or does this defense work as well for “no-fault”
divorce?
4} Provocation(?)
What if the plaintiff spouse deliberately provoked the misconduct by the
defendant spouse of which he now complains, e.g., adultery, abandonment, cruel
treatment, all in an effort to create (fault-based) grounds on the basis of which he might
seek a divorce? Should he be able to get a divorce on that basis under such
circumstances?
________
Alain Bénabent, DROIT CIVIL: LA FAMILLE no 249, at 152 (10th ed. 2001)
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. . . [T]he provocation of the fault of one of the spouses by the deliberate
behavior of the other can take away from this fault the effect that are normally
attached to it. The hypothesis is that one of the spouses, desiring to obtain a
divorce, but having nothing for which to reproach his spouse, provokes, by
carrying out some scheme, behavior from this spouse that is faulty. It is
principally in regard to adultery that the question of provocation is posed. . . .
[A]lthough the jurisprudence has not posed such a principle in a general
manner, one can consider that the attitude of deliberate provocation on the
part of one of the spouses who attempts in this way to lead to his suffering
some grief blocks himself from availing himself of the behavior that his himself
has in this way provoked.
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