II. The Fundamental Right to Marry

SC Code Ann. § 20-1-80: Bigamy

Bigamous marriages shall be VOID o Exceptions: But this section shall not extend to a person whose husband or wife shall be absent for the space of five years (after 5 years, the marriage becomes voidable), the one not knowing the other to be living during that time, not to any person who shall be divorced or whose first marriage shall be declared void by the sentence of a competent court. o Law presumes 2nd marriage is valid reasoning: you would assume the 1st wife would show up ▪ Burden on 1st spouse... later marriage presumed valid.

Other Restrictions of Right to Marry:

General: (historically, tort heart-balm actions: seduction, breach of promise to marry, criminal conversation (aka adultery), and alienation of affections (interference w/ marital relations)) o Seduction - brought by a woman's father against a man who seduced (had sex w/) her (based on a theory that the father "owned" her and that his property interest had been damaged. • SC has eliminated o Criminal Conversation - sue non-spouse for having relations with spouse (old adultery) (needs to be sex) • SC has eliminated o Alienation of Affection - interfering with the marital relationship in such a way that you win the love away from the spouse. (sue non-spouse) (doesn't need to be sex) • SC has eliminated (But still will enforce if from other jxd.) o Breach of Promise to Marry - still have in SC: • Originally used to protect women - could sue a man for jilting them • Protects spouses who have sold house, quit job, and moved across country to get married, plan a big expensive wedding- can recover for these expenses? What sort of damages should there be? • Engagement rings: o Only place this has survived - giving of the engagement ring (viewed as a conditional gift) ▪ Once you say "you can keep it" then it becomes a gift and is irrevocable o Exceptions: ▪ Giving the ring on the B-day or Christmas o Fault not used in ring situations b/c states have no fault and don't want people to get married over ring

South Carolina Laws

SC (Criminal Incest): [S.C. Code § 16-15-20 Any person who shall have carnal intercourse with each other within the following degree, to wit shall be guilty of incest and shall be punished by a fine of not less than five hundred dollars or imprisonment not less than one year in the Penitentiary, or both such fine and imprisonment. o (1) A man with his mother, grandmother, daughter, granddaughter, stepmother, sister, grandfather's wife, son's wife, grandson's wife, wife's mother, wife's grandmother, wife's daughter, wife's granddaughter, brother's daughter, sister's daughter, father's sister or mother's sister o (2) A woman with her father, grandfather, son, grandson, stepfather, brother, grandmother's husband, daughter's husband, granddaughter's husband, husband's father, husband's grandfather, husband's son, husband's grandson, brother's son, sister's son, father's brother or mother's brother; SC (Who May Marry): [SC Code § 20-1-10] o A.) All persons, except mentally incompetent persons and persons whose marriage is prohibited by this section, may lawfully contract matrimony: ▪ B.) No man shall marry his mother, grandmother, daughter, granddaughter, stepmother, sister, grandfather's wife, son's wife, wife's granddaughter, brother's daughter, sister's daughter, father's sister, mother's sister or another man. ▪ C.) No woman shall marry her father, grandfather, son, grandson, stepfather, brother, grandmother's husband, daughter's husband, granddaughter's husband, husband's father, husband's grandfather, husband's son, husband's grandson, brother's son, sister's son, father's brother, mother's brother, or another woman.

Putative Spouse Doctrine

To protect the property interests of a person who had a good-faith belief they were in a common law marriage; even if find out you weren't married, you are still entitled to inherit/take as a spouse would; look for actual marriage ceremony as evidence

BIGAMY/POLYGAMY:

o Bigamy(2)/polygamy(2+)banned in every state o Polygamy: (never been protected in US) • Main issues revolve around child protection o Harms are not inherent in polygamy thus need to take an extra step to prove the harms are there • Problems with polygamy: o Exploitation, pedophilia, forced marriage, sexual abuse, incest, child neglect ▪ Are these problem inherent in polygamy? Other ways to get rid of them? ▪ In support of Polygamy Argue: • Lawrence v. Texas: private sexual relations between 2 consenting adults is a constitutional right

INCEST

o Blood Relation/Consanguinity: All states regulate the degree of kinship within which the person may marry. Incest makes a marriage VOIDABLE, but it can never be ratified! Get an annulment • What's wrong with incest? o Genetic defects are more likely o Social un-acceptable o Sexual relations among family members can be exploitative o "It's icky" ▪ Affinity: Some states also restrict marriage between parties related by affinity, people who are not blood related, but legally related. Affinity ends at divorce! • South Carolina: Has no case ruling on this issue either way but the assumption is that SC would follow the majority of states finding Affinity ends at divorce. o NOTE: The list comes directly from Leviticus - the Bible. ▪ Half Blood v. Step Siblings • Half-blood = prohibited • Stepsiblings = not prohibited ▪ Adopted Children: • An adopted child is typically considered the same as a birth child when legally adopted by its birth parent, meaning you're considered part of the same blood family, NOT LEGAL to marry. ▪ Cousin Marriage • SC you CAN marry your cousin! • 26 states allow cousin marriage o 1st cousin marriages have a 4-6% chance of birth defects o 2nd cousin is almost no chance of birth defects o SC - incestuous relationships are VOIDABLE not void.

State v. Sharon

o Facts: Sharons were half-brother and half-sister (same mom; different dad). One was adopted at an early age, and they met later in life and married. Statute said "blood related" couldn't marry. • 101(a)(1): "A marriage is prohibited and void between: A person and his or her ancestor, descendant, brother, sister, uncle, aunt, niece, nephew or first cousin..." o Holding: Adoption does not end a bloodline, so marriage was prohibited. • Half-siblings are still included in the definition of incestuous marriage.

In re Steed (polygamy & removing children)

o Facts: The Texas Dept. of Family & Protective Services removed 468 kids from Fundamentalist Church of Jesus Christ of Latter-Day Saints' (FLDS) ranch based on allegations that there was immediate danger to the physical health or safety of the children. o Holding: Dept. did not meet its burden with respect to section 262.201 - the danger must be physical (must show particularized harms), must be urgent need for protection of child that require immediate removal, and dept. had to make reasonable efforts to not have to remove kids. o Rule: Evidence that children raised in a particular environment (e.g., polygamy) may someday have their physical health and safety threatened is not evidence that the danger is imminent enough to warrant invoking the extreme measure of immediate removal prior to full litigation of the issue.

Lukich v. Lukich (SC Bigamy)

o Facts: Wife married H#1 in 1973 (never divorced); Wife married H#2 in 1985; Wife got marriage #1 annulled in 2003 b/c never cohabitated now seeking alimony from H#2 o Holding: Wife can't get alimony ▪ Just because 1st marriage was voidable doesn't mean anything, 1st marriage needed to be void at the time of the 2nd marriage & it was not therefore there was never a 2nd marriage & the 2nd husband does not owe her alimony ▪ If married to someone else at time of 2nd marriage that 2nd marriage is void & 2nd spouse owes bigamous spouse nothing

SC State of Mind Restrictions: Need to look up Contreras-Salinas v. Holder

o Fraud renders a marriage VOIDABLE at request of injured party • SC (very limited) o Fraud is only a ground for annulment PRIOR to cohabitation (only SC!) • Courts typically only recognize fraud if there is clear and convincing evidence of fraud that goes to the "essentials" of the marriage o Usually has to relate to sex; character issues--not so much o Duress marriages are VOIDABLE and may be annulled if party enters the marriage b/c of duress • Typically require physical force/threat of such force • Ex: Shotgun wedding o Immigration Fraud • Immigration one of few areas where we actually look into WHY you got married o Showing of fraud: Can't communicate, live in diff. state, one person doesn't show up when attempt to gain permanent residency • Contreras-Salinas v. Holder (SC State of Mind/Immigration)

Common Law Marriage:

o Marriage created by express agreement of the parties without ceremony. o SC one of few states who still recognize o Elements of C/L Marriage: • 1) Cohabitation (however briefly) • 2) Capacity to Marry (no impediments - 16 and mental capacity) • 3) Intent o Hold themselves out as married ▪ SC - "acquire generally a reputation in the community as married" o Without express intent can be met by cohabitation and reputation in community o Can't unintentionally find yourself C/L married • 4) Live in a state that recognizes C/L marriage o Burden of proof: on the party asserting C/L marriage - preponderance of evidence o Same rights as civilly married persons (only difference is how you enter into marriage) • Can only be ended by death or divorce (no such thing as "common law divorce")

RESTRICTIONS ON MARRIAGE:

o Must have valid consent to enter into a marriage. (Must have consummation and co-habitation too) o Requirements: • Mental capacity to K • Actual intent to be married o Ex: "shotgun weddings" not valid - one party does not consent and are under duress o Consent (Marriage requires it) • Diminished Capacity/Mental Incapacity o Permanent Incapacity: This is a void marriage. The marriage can never be legal because you never had the capacity to marry. o Temporary Incapacity: This is a voidable marriage. If a party had lucid moments and at anytime wanted the marriage, then marriage is voidable. ▪ Alcohol Intoxication (Temporary Incapacity): If a person consents to a marriage while drunk, party can seek an annulment if done IMMEDIATELY. However, short time-period so once someone starts cohabitating, consummating the marriage, it is no longer an option, and the marriage becomes a valid common law marriage. • SC has a very high standard, meaning you will have to show you never were able to consent through the entire marriage - mere weakness is insufficient; must be such a derangement thus making the party unable to understand the K.

Annulments:

o No time limit on when you can bring action for annulment o Brevity of marriage not grounds for annulment o Voidable marriage can seek annulment; void marriages do not need annulment o Grounds for annulment: incest, intoxication, fraud, sexual incapacity (NEVER for finance, past) ▪ Fraud rare - cannot have cohabitated (in SC) or consummated ▪ Bigamy - If 1st wife dies, 2nd marriage still void o Generally, can annul after consummation and cohabitation if annulment has nothing to do with consummation/cohabitation

CONSTITUTIONALITY OF MARRIAGE RESTRICTIONS:

o Rule: Reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed. Only those classifications that directly and substantially interfere with the right to marry will be reviewed under the Strict Scrutiny Test. There is a fundamental right to marry! Infringements on marriage (fundamental right) will be subject to Strict Scrutiny.

SC Marriage Procedural Requirements: (exception = CL marriage)

o SC Marriage Procedural Requirements: (exception = CL marriage) • Marriage License SC Code §20-1-210 o C/L Marriages don't require § 20-1-230 • 24 hour waiting period § 20-1-220: 24 • Background Check ("small" - makes sure are really single/able to marry) o § 20-1-230: avowed ability to marry. • filing of a statement, under oath or affirmation, to the effect that the persons seeking the contract of matrimony are legally entitled to marry • Fee (can waive if show unable to pay) • Officiants (Religious officials, State judges, Notary Publics) o SC allows Notary Public to marry o Only state judges, not federal judges o Other Requirements: • Cohabitation and consummation (probably doesn't have to be intercourse) o Marriage is K involving three parties (husband, wife, and state) • So state can say how you get into a marriage K and how you get out of them.

Prenuptial Agreements:

o Seek to alter the legal consequences that ordinarily follow the end of marriage, either by death or divorce o MUST be clear, unambiguous, and explicit to be valid o Mutual agreement to marry is usually valid consideration for a prenup o SC recognizes prenups • Can apply to non-marital property; can change something from marital property to non-marital property and vice-versa can affect equitable distribution o Requirements: • 1) Must be in writing (fall w/in SOF) o Postnuptial agreements do NOT have to be in writing • 2) Must be full financial disclosure • 3) Must be voluntarily executed • 4) Must be represented by counsel (both parties) • 5) Must not be unconscionable or against public policy - terms must be fair o Can scratch unconscionable parts and keep the rest o CAN K for: cancellation of adultery (depends on state), clauses for certain state enforcement, non-disclosure clause, division of marital property, alimony o CANNOT K for (some states): child custody & child support (won't be binding) o Affirmative defenses to prenup: undue influence, unconscionable, fraud, duress, and undue hardship

AGE RESTRICTIONS: Age of Consent

o §20-1-100 Age ▪ SC = must be 16 years old (civil and C/L marriage) ▪ If under 16, void marriage o §20-1-250: Age (consent) ▪ No marriage license if under 16 ▪ If 16 < 18 requires parental consent (sworn affidavit) to get married • If no parental consent, marriage is voidable o § 20-1-300 ▪ Exception allows girl under 16 to marry the father of her child if she is pregnant • Requires girl to get consent of parents; boy does not have to

Obergefell v. Hodges

• (1) All same sex couples have the right to marry • (2) All states must give marriage licenses to same sex couples • (3) All states must recognize same sex marriages performed lawfully in other jurisdictions Full, Faith and Credit Clause (Const. Art. IV section I):

Goodridge v. Department of Pub. Health: (MA State Case, not federal controlling case)

• Facts: 7 same-sex couples seek marriage licenses in MA. They are denied and appeal. • Issue: Does same-sex marriage offend the constitution of MA? Is it connected to a legitimate State interest? • Holding: NO, same sex marriage does not offend MA States cannot deny same-sex couples the benefits of marriage o Applied rational basis test (homosexuals are not suspect class) - no rational interest

In Re Estate of Duval (Oklahoma - c/l marriage very difficult)

• Facts: Couple lived together for long time, referred to each other as husband/wife, had joint bank accounts, but never formally married. Husband died and wife wanted to inherit from his estate • Holding: Wife could not prove clear and convincing evidence that couples entered C/L marriage; so no legal basis existed to support that parties entered into C/L marriage

In re J.M.N. (Underage marriage)

• Facts: Divorced parents had a 14 year-old daughter. Father who had physical custody took daughter to mother's for weekend. Mother then took daughter and boyfriend to Tennessee to get married. Supreme Court of Tennessee said the mother never should have done this; however, the minor daughter and boyfriend were legally married and the marriage was voidable (not void as originally ruled.) Therefore, the couple would need to have their marriage annulled. • Holding: a marriage between underage parties may be ratified or disaffirmed by them upon attaining the age of consent if the marriage is not annulled before this time. o Diff in SC In SC void (under 16) (would not need annulment) ▪ Note need to know age of consent for the state in a case

Zablocki v. Redhail (SCTOUS) (banning marriage unless pay child support - unconstitutional)

• Facts: Father wants to get re-married, but hasn't paid all his child support. State refuses to issue him a marriage license. He sues - violated EPC and DPC of 14th Amendment o Statute: you cannot marry in Wisconsin or elsewhere unless you: ▪ Support your existing child ▪ Swear that your child will never be supported by the State • Holding: Statute is unconstitutional because it significantly interferes with the exercise of a fundamental right does not survive strict scrutiny o Even though this statute is linked to a legitimate governmental interest (protection of children and the state's $$) b/c it deprives an individual of the 'fundamental' right to marriage - it is unconstitutional o Equal protection: statute discriminates b/w groups - violates EP ▪ Wealth is not suspect class ▪ BUT does get strict scrutiny b/c it is discrimination re: a fundamental right (right to marry - protected by Due Process) and this bumps it to strict scrutiny • ***Not all marriage related statutes will be subjected to heightened scrutiny - just ones that absolutely prevent marriage • RULE: Statute that entirely prevent the right to marry (fundamental right) is unconstitutional

Lester v. Lester: State of Mind Restriction (private K that purported to invalidate a marriage)

• Facts: H entered into marriage, supposedly under duress, they were married for 10 yrs. Based on some documents that claim duress that he and his wife signed upon their marriage purporting that the marriage was a fraud, he claims the marriage should be annulled/voided. • Issue: Can a private contract that agrees that the marriage is a fraud set aside a marriage? • Holding: Agreement harms the institution of marriage and is unconstitutional; parties cannot create their own private contract b/w them that says their marriage is fake, especially when, aside from these documents, the parties have a legal marriage. o "Private individuals may not by agreement set aside the law of the land." • RULE: Contracts which purport to invalidate a marriage are unenforceable.

Simeone v. Simeone (Validity of a prenup on eve of wedding) (Supreme Court of Pennsylvania)

• Facts: He gave her an ultimatum on her wedding night to sign the prenup or not get married. No counsel but H's counsel was present. She signed. • Issue: Is a prenup entered into with full disclosure binding, regardless of whether it is reasonable or fully understood? • Holding: Valid prenup o Note - Here, doesn't matter that she didn't consult her own counsel, all that matters is that she had the opportunity to ▪ SC requires you to consult with counsel • RULE: A prenup entered into with full disclosure IS binding, regardless of whether it is reasonable or fully understood

Campbell v. Robinson (SC case)

• Facts: Man and woman engaged, and call off wedding. He sue her for 1) unjust enrichment and 2) the ring. She sues him for 1) breach of promise to marry, saying entitled to prenuptial expenses • Holding/Rule return ring If a party presents evidence a ring was given in contemplation of marriage, the ring is an engagement ring; as an engagement ring, the gift is impliedly conditioned upon the marriage taking place, and until the condition underlying the gift is fulfilled, the attempted gift is unenforceable and must be returned to the donor upon the donor's request.

Rodgers v. Herron: (C/L and The Estate) South Carolina

• Facts: Mother was living with long-time boyfriend/husband? But still receiving money from her first marriage which she couldn't keep if she was married. Children wanted money and informed bank. • Holding: Court said bank should have investigated situation once they were put on notice, but didn't have to before gained actual knowledge of the situation. RULE: A bank (as fiduciary) in carrying out a will has a duty of reasonable care - in this case a duty to investigate. NOTICE of 2nd marriage is required before the trustee has this duty.

Rappaport v. Katz: (District Court) - Procedural Marriage Requirements

• Facts: NY Clerk of Ct required that the bride wear a dress in order to be wed by the Ct. She wanted to wear a pantsuit. She sued in fed. court • Issue: Should federal courts supervise the procedures used in city clerk's offices? • Holding: NO; complaint dismissed, this is state issue, not federal one • RULE: Procedural formalities of marriages will be left up to the states to adjudicate. No place in fed jud system.

Turner v. Safley: (SCOTUS) (right of prisoners to marriage)

• Facts: Prisoners could marry only with the permission of the superintendent of the prison. This permission was given only when there were compelling reasons to do so. • Issue: Is there a constitutionally protected right to marriage for prisoners? • Holding: YES - The constitutional right to marry is not removed by incarceration. o Regulation is invalid. The complete ban of marriage for inmates is not reasonably related to legitimate penological (state prison) objectives. o Zablocki does apply to inmates. o The court also adopts a reasonableness standard (only b/c they are in prison - doesn't overrule Zablocki) ▪ Although, prisoners' rights can be limited, they don't lose their rights completely. ▪ 4 factor test • Rational relationship to articulated rehabilitation goal • Alternative means for perfecting that right • Accommodation of prisoner's right • Alternative regulations • RULE: The right to marry applies to prisoners as well, despite the idea that prisoners' liberties and fundamental rights are severely restricted. o *****There is clearly a Fundamental Right to Marry and restrictions on marriage are fine as long as they are easily met; however, the harder the restrictions get, there more of a Constitutional question there is*****

Loving v. Virginia (SCOTUS): interracial marriage ban - unconstitutional

• Facts: VA couple (black woman and white man). Interracial marriage is illegal in VA. The couple married in DC. When they returned to VA the Loving couple was given a one year jail sentence; which was suspended if they left the state for 25 yrs. Couple challenged the constitutionality. • Issue: whether a state outlawing marriage on the basis of race violates the Equal Protection and Due Process Clauses of the 14th Amend. • Holding: outlawing marriage based on race = Unconstitutional o MARRIAGE is a FUNDAMENTAL RIGHT! Strict Scrutiny Standard o State cannot ban interracial marriages: (b/c of due process and equal protection) ▪ Due Process Violation: Forbidding black and whites to marry ▪ EPC Violation: Restricting freedom to marry solely b/c of racial classification\ ▪ The criminality of an act cannot depend on the race of the actor

Johnston v. Johnston: (annulment b/c of fraud - prince to frog)

• Facts: Wife wants an annulment from Husband b/c she believes that he lied to her before marriage. After they married he became unclean, unemployed, and a drunk etc. . . and that he concealed these facts from her to get her to marry him. • RULE: To receive an annulment due to fraud the fraud must go to the essence of the marriage. - FYI: Fraud is grounds for annulment only prior to cohabitation in SC; BUT non-cohabitation is also grounds for annulment on its own in SC, so why would you need to annul b/c of fraud when you could just use the lack of cohabitation? One benefit to annulling on grounds of fraud if that you can still recover alimony, whereas typically after an annulment you cannot recover alimony. A spouse paying alimony must resume payments if the other spouse's subsequent marriage gets annulled.

Callen v. Callen (SC common law marriage)

• Rule: If impediment to marriage present, can be no c/l marriage o Once impediment is removed, to become a marital relationship, there must be a new mutual agreement • Rule: If party does not comprehend that his actions will bind him in a legally binding marital relationship, then he lacks intent to be married in inadvertant c/l marriage

Hudson v. Hudson (SC prenup enforcement - unconscionability)

• Test for whether prenup should be enforced: o 1) Was the agreement obtained through fraud, duress, or mistake, or through misrepresentation or non-disclosure of material facts? o 2) Is the agreement unconscionable? o 3) Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?

Void v. Voidable **Need to find out whether or not incest marriages or void or voidable. I think it's void, but incest marriages with cousins are voidable?

• Void: Never legally valid o Void marriages can never be ratified o State voids marriage from its inception o Under 16, Bigamy, Permanent Mental Incapacitation, and Incest - any 3rd party can come before the court to have the marriage voided. • Voidable: valid and binding until its nullity is ascertained and declared by a competent court o Can ratify by cohabitation/consummation ▪ Once ratified, marriage becomes valid (no longer voidable) o Only parties to the marriage can get marriage annulled marriage becomes void • Some types of void marriages can become voidable marriages o Age of consent - if below min age when married, then marriage is void; once you reach age of majority you can ratify marriage (or else becomes voidable)

SC Code § 20-3-135:] Spousal Support Obligation where Marriage declared Void due to Fraud:

"A marriage that would otherwise be lawful that is declared void ab initio by reason of fraud, does not relieve the party committing the fraud of the duty to provide spousal support that would have otherwise existed pursuant to § 20-3-130. • Alimony: Typically cannot get alimony for an annulment. Alimony is the money you get for the lack of money you are receiving because no longer married. If a party gets remarried, then alimony ends. o Some states allow alimony for annulled marriages for punitive reasons.