Getting Married

NY DRL § 11: Who may solemnize a marriage (3 notes)

(1-3) clergy, current or former governor, a mayor, a village recorder, police justice, police magistrate, certain judges (but not all of them). (5) ONLY (not clergy or others) judges may solemnize marriage if either party is under 18 (sidenote in NY: can be married at 17 w/ court order)

NY DRL § 12: Solemnization requirement?

*"No particular form or ceremony is required"* BUT the parties *must solemnly declare before a witness that they take each other as spouse and spouse*

*Vaughn v. Lawrenceburg Power Sys. (6th Cir. 2001)* LPS = public utility company Anti-nepotism policy → two employees cannot marry each other, and if they do, one will be fired (but other forms of nepotism were not required to get fired) The Vs (keith and jenn) employed by LPS → told prior to marriage that one had to go -JV got pregnant -The Vs did not give a decision of who would leave prior to getting married → 2 week suspension -KV returned to work and J did not, but without submitting a letter of resignation → KV fired and J too KV → challenged the policy by --> 1 way

*1. Violating right to marry (fundamental)?* FAILS → not saying you can't get married! *Used RB* → b/c the policy did not infringe on the fundamental right to marriage → not a direct and substantial burden on the right to marry (so no SS) -Also, not limiting the pool of whom to marry significantly -Just made it economically burdensome to marry a small number of individuals -NOT greatly restrict freedom to marry OR who to marry! UNDER RB (need a legitimate gov't interest): 1. Prevent one spouse from being a "spokesperson" for the other 2. To avoid angering the spouse when the other is disciplined 3. Avoid marital strife in the workplace 4. Spouse loyal to the spouse and not the company = passes RB = *Gov't may distinguish between marriage related and NON-marriage related nepotism* → married persons are different (more intense loyalty)

KV → challenged the policy by --> 2nd way

*2. Other nepotism relationship not punished as severely* LPS → our resignation rule not apply to them Also fails → *Government may distinguish between marriage related and non-marriage related nepotism* "...married and unmarried couples are not the same de jure; the law treats them differently, and LPS may, too."

*Carabetta v. Carabetta (CT 1980)* -P and D had a marriage ceremony in church, before a priest etc -BUT marriage w/o marriage license -Had 4 kids, married 20 yrs, always held themselves out to be married, same last names -P filed for divorce and H filed for annulment

*Allowing this annulment would be a "manifest injustice"* → the statute requires it (the marriage certificate), BUT the statute does not declare it void w/o it ( = *equitably reading of the statute)*

NY DRL § 10-b: Must all persons be allowed to get married wherever(location-wise) they want in the state?

*Allows religious organizations to NOT provide accommodations for ceremonies that are inconsistent with its religious principles* NY's passage of the Marriage Equality Act "In 2011, the Legislature adopted the Marriage Equality Act (L. 2011, ch. 95) which *permits same-sex couples to marry in New York...However, recognizing that there are persons with deeply held religious views opposing same-sex marriage, the Legislature took care to protect the rights of religious and certain other institutions to decline to sponsor or sanction same-sex marriages..."*

*Blair v. Blair (MO 2004)* P, husband moved for an annulment to Nancy B July 26, 1976 - one time sex between P and D (while D was married AND in a relation w/ Sam) D had a son in April of next year & P visits her Jan 1979 → D told P that the son was his They reunited Had a kid together in March 1980 D and P eventually married once D's first marriage ended P adopted both kids P later sued for divorce D moved for annulment → that D fraudulently induced P to marry her by lying about P being son's dad

*Annulment denied* -P's words that he would have never resumed a relationship but for D's lie on his paternity → NOT establish that was the only reason he married her -He testified he loved her & they had a child together -He adopted both children *Policy → court not going to declare that this was never a family*

*Brown v. Buhman (UTAH 2013)* Brown and his 4 wives challenge the constitutionality of the UTAH bigamy statute that outlawed "religious cohabitation" → living w/ a person other than your spouse for religious purposes Ps not in violation of biagmy (multiple legal spouses), just Brown and 1 wife have a legal marriage *Here, the law → outlawed "religious cohabitation" → was argued to be facially neutral*

*BUT it was NOT OPERATIONALLY NEUTRAL, therefore unconstitutional as applied to Browns because only Mormons were persecuted* *SS = violated the 1st am free exercise of religion* 1. *Compelling interest to regulate MARRIAGE?* Yes, BUT only in regulating LEGAL marriages, NOT in preventing cohabitation -Can prevent multiple legal marriages to prevent fraud, prevent confusion among statutes created for monogamous marriages -Ignores thousands of laws that premise marriage benefits on having one spouse. 2. *Compelling interest to regulate Religious Cohabitation?* NO "It is generally understood that the state is not entitled to criminally punish its citizens for making such a choice."

*Campbell v. Robinson (2012)* -Broken engagement between MC (the P) and AR (the D) -P wants the engagement ring back -D claims that P told her that she could keep it after the engagement was broken off (& and P broke it off anyway) -D denies this, said it was mutual

*Court not care whose fault it was that the engagement ended* → -Impossible to determine blame for a breakup *Anti-heartbalm Legis* = legis that prevents a fiance for bringing a suit for breaking off an engagement for breach of K And NY has it too → Section 80-a and 80-b of Civil Rights Law *The ring used for a proposal is considered a conditional gift, NOT an absolute gift* The ring is dependent on the marriage happening! *No marriage = ring goes back, its purpose is not fulfilled*

Takeaway of Obergefell?

*Expands on Windsor to guarantee the right of marriage for same sex couples in every state!* = ⇒ states cannot deny this recognition (would violate EP and DP) = *both grounds! (Sub DP(right to marriage is fundamental) and EP(law was sex discrim on a fundamental right))*

Conditional gift IF ...?

*IF IT IS CLEAR what the purpose of it is* Like an engagement ring! Has a lot of significance *All this other stuff (car, vasectomy, trips) are not "inextricably tied" to the prospect of marriage*

Getting Married → *Being Married* NY DRL § 50: Property of a Married Woman

*Married women owns property despite being married* → § 50. *Property, real or personal, now owned by a married woman*, or hereafter owned by a woman at the time of her marriage, or acquired by her as prescribed in this chapter, and the rents, issues, proceeds and profits thereof, *shall continue to be her sole and separate property as if she were unmarried, and shall not be subject to her husband's control or disposal nor liable for his debts*

*Obergefell v. Hodges (2015)* Ps (3 sets) James O and John Arthur together over 20 years A had ALS Got married in MD before he died OH not permit JO to be listed at the surviving spouse on A's death certificate → & therefore "remain strangers even in death" (4)

-Challenge based on EP under the 14th am (OH's actions) -History of marriage is evolving *4 reasons why States must recognize the marriages of other states* 1. *Right to decide who to marry is Inherent right of individual autonomy* (in the US) 2. *Supports a two-person union, mode of expression & commitment* 3. *Safeguards children and families to the related rights in child rearing, procreation and education* ---No shame, to understand their own families, stability 4. *Tradition of marriage is a keystone of the social order* ---Symbolic recognition ---Affects people's rights!

Annulment? Standing to Annul a Marriage?

-Only spouses have standing to move for an annulment -Establishment of *FRAUD* is grounds for an *annulment (a ruling that the marriage never happened)*

For Materiality fraud, what kind of fraudulent thing would it be that would be grounds for an annulment, besides essentials? (5 examples)

-name/identity, -one spouse legally insane and other spouse did not know (?), -one spouse concealed they were already married at time of second marriage (making marriage void); -where marriage was induced by false material promises, -or duress 0 though this would be hard to prove. = *But anything that would be material in a regular contract, could be material in a marriage contract.* These cases are not common, especially if marriage was consummated. ???

Fraud Tests(2) Need to prove all 9 elements?

1 test = materiality test Other test = essentials test → goes to spouses ability and willingness to sex and procreation Yes!

Getting Married → Was I Ever Married? *NY DRL § 7: Voidable Marriage* Marriage is voidABLE if either party is: (5)

1. *Is under the age of legal consent, which is eighteen years* -->provided that such nonage shall not of itself constitute an absolute right to the annulment of such marriage, but such annulment shall be in the discretion of the court which shall take into consideration all the facts and circumstances surrounding such marriage. 2. Is *incapable of consenting to a marriage for want of understanding* 3. Is incapable of entering into the married state from physical cause; = *incapable of having children!* 4.*Consent was given by reason of force, duress or fraud* 5. Has been *incurably mentally ill for a period of five years or more*

Violate EP and SDP?

1. = As to Substantive DP, yes, marriage is a fundamental right, and the statute interfered with the exercise of that right. 2. law *discriminated in a way to deprive a class of persons of a fundamental right (right to marry)* = *"if, however, the classification impinges upon fundamental rights or constitutes a suspect classification, it is subjected to strict scrutiny and can be upheld only if it is necessary to promote compelling governmental interests and is narrowly drawn to express only such interests."*

*NY DRL § 10-a: (2011) → NY's Marriage Equality Act* 2

1. A marriage that is otherwise valid *shall be valid regardless of whether the parties to the marriage are of the same or different sex.* → *all gender specific terms will be construed in a gender neutral manner* 2. *No [NYS] government* treatment or legal status, effect, *right*, benefit, privilege, protection or responsibility relating to marriage ... *shall differ based on the parties to the marriage being or having been of the same sex* rather than a different sex. [And]...all gender-specific language or terms shall be construed in a *gender-neutral manner* in all such sources of [state] law.

NY DRL § 5: Incestous & Void marriages: *Marriage is incestuous AND void whether the relatives are legitimate or illegitimate between either:* -3 -fines?

1. An ancestor and a descendant; 2. A brother and sister of either the whole or the half blood; 3. An uncle and niece or an aunt and nephew. -parties = fined between $50-$100 & may be imprisoned for up to 6 months -those who solemnize the marriage = guilty of a misdemeanor and shall be fined or imprisoned in like manner

4 Takeaways 1. EP = which applies to states and which applies to fed? 2. Windsor? 3. Obergefell? 4. Kirkpatrick?

1. EP/14th A. applies to laws that States make; EP/5th A. applies to laws that federal gov. makes. 2. Windsor = States define who may marry; federal gov. may not refuse to recognize a lawful State marriage. 3. Obergefell expanded Windsor: no State may refuse to recognize lawful marriage in another State. 4.Kirkpatrick: *States are entitled to determine the circumstances under which a minor has the fundamental right to marry*

1. What kind of gift is spending $ on the wedding hall? 2. What kind of gift is a Vasectomy?

1. Not a conditional gift, but it was part of a K! She received a lien on his condo for the expenses she paid for the wedding hall 2. Not a conditional gift in contemplation of marriage!

9 Fraud's elements Fraud Tests *1 test = materiality test* Other test = *essentials test → goes to spouses ability and willingness to sex and procreation*

1. Representation by spouse (H or W) 2. Its Falsity 3. Its Materiality 4. Laying spouse's knowledge that it was false OR ignorance of its truth 5. Laying spouse's intent for the representation to be acted upon by the other spouse 6. Other spouse's ignorance of the falsity of the representation 7. Other spouse's reliance on the truth of the rep 8. Other spouse's right to the rely on the rep 9. Other spouse sustained consequent and proximate injury

3 Takeaways of LOVING

1. The *right to marry is fundamental, and protected.* 2. "There can be no doubt that *restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause."* 3. The *right to marry is "one of the vital personal rights essential to the orderly pursuit of happiness by free men* ...To deny this fundamental freedom on so *unsupportable a basis as ... racial classifications* ... is surely to *deprive all the State's citizens of liberty without due process of law."*

1. EP Grounds?

1. Was there a suspect classification made? YES, racial, which is suspect → *Strict Scrutiny, requires a compelling state interest & narrowly tailored means* States argue it was equally applied and therefore not in violation WRONG → it *remains "invidious discrimination" States argue it had reasons → to maintain racial integrity* WRONG → that is white supremacy and fails SS Violates the central meaning of the EP clause

*Common Law Marriage* -what is it? -elements needed? (4)

Common law marriage = *a civil K of marriage, no ceremony needed* Facts that would have established it → *4 elements* 1. *Capacity to enter into the marital K* ( → cannot be underage, or married to someone else) 2. *Present agreement to be married* 3. *Cohabitation* 4. *Holding out as husband and wife*

Common law property vs. Community Property

Common law property = *H and Wife own the property separately, even during marriage* -Upon divorce → will still be equitable distribution of the property that is separately owned Community Property = during *marriage, regardless of who acquires the property, upon acquisition they both have 50% claim to it*

*Bradwell v. IL (1873)* Bradwell sues for right to a law license under the 14th am under the privileges and immunities as citizens

Court → *women are disabled in marriage = more suited to domestic life, family, and child rearing → aka not the courtroom & men are protectors* 14th am P and I cl → not grant women right to every profession "This is the law of the Creator" If we allow women in the workplace, they'll stay unmarried for longer and have fewer children → (LIKE TODAY)

*Loving v. VA (1967)* Interacial couple, the Lovings, married in DC and moved back to VA, where interracial couples are not allowed to be married Anti-miscegenation law in VA (no whites can marry outside the white race) and a law that criminalized what the Lovings did Lovings are charged w/ crime & could serve it or leave VA

Court: these laws violates EP and DP of the 14th am (the Anti-miscegenation law)

*Zablocki v. Redhail (1978)* R denied a marriage license b/c a the law that prevented people from obtaining such IF they fail to meet child support payments Leaving his child a public ward Wisconsin said he needed to: 1. Prove compliance in the paying of support 2. Prove that his child won't be a "public charge"

Court: this *law violates SDP and EP!* WI goal to provide incentive to have parents support their kids -->The *means → NOT hit the mark! -Did nothing to get the kids their $* -You can still have kids out of wedloc - *ONLY targeting non-paying parents who want to get married* This prevents the possibility that marriage would provide another income & help *Means = not sufficiently related to the legitimate interest, therefore invalid encroachment on the fundamental right to marry*

*Kirkpatrick v. Dis Ct (NV 2003)* 15 yr old, whose parents were divorced → who wanted to marry her 48 yr old guitar teacher -Mom approves needs to go to Vegas to receive Judicial Consent -Ct approves -They get married Dad finds out → argued ____? Balancing what interests?

Dad = argued that the law was unconstitutional for not requiring his consent violated his fundamental parenting right *Constitutional* - *Consent of one parent was sufficient b/c the CHILD had the right under NV law & provided 1 parent + court agreed* --Not every minor has a fundamental right to marry, but Nevada was entitled to allow those with one parent consent and judicial approval to do so. *State must balance a parent's interest in raising the child, against the child's interest in autonomy and right to marry.* This law BALANCED the interests of: 1. The child's right to marry (& mom's interest in daughter's happiness) And 2. Parent's rights to parent/control upbringing

Family court → spousal privilege?

Family court → NO spousal privilege Why? *Overriding state interest in child safety*

DOMA (1996 Defense of Marriage Act)

Federal statute that defined marriage as between a man and a woman Enacted at the time that states were discussing enacting same-sex marriage acts DOMA affected federal laws, with taxes, benefits, etc. (bottom of pg. 154) Over a thousand laws impacted

Britney Spears Annulment → GRANTED why?

GRANTED after 55 hours of being married No children together, no common property, Spears never took his last name 9. (not know each other's likes and dislikes, desires of kids or state of residency)

*Jennings v. Hurt (NY 1991)* D = william Hurt, married to Mary Beth Hurt, eventually separate P = Jennings, claims that she and D had a common law marriage in SC -They were dating and living together -P eventually became pregnant -D and P went to get a divorce, and even D told MBH that he's done w/ marriage D's actions: -Drafts a prenuptial agreement = contemplates marriage -"We're already married in the eyes of God...more married than married people" -D signed a paternity acknowledgement

Here → 1, 2, and 4 missing -Friends know they weren't married, MBH's statements -Filed all taxes as single AND D signed a paternity acknowledgement → *shows that if they were married, the presumption of paternity would have attached & he wouldn't have had to sign this!*

NY DRL § 10: Marriage a _____ & you need _____?

Marriage = a civil K Consent of all parties is needed

NY DRL § 61: Married person's domicile - 1976

Married persons domicile will be established without regard to sex → aka *women can pick where she wants to live*

NY DRL § 52: Insurance of married person's life

Married women can take out life insurance on their spouse

*Trammel v. US (1980)* -Husband charged w/ drug trafficking → Wife cut a deal w/ the Gov't to testify against him (only about matters she SAW and what he said in the presence of 3rd parties) -H argued that she could not testify against him because they're married → spousal privilege (may not be compelled by court to testify against their spouse) -He argued he could stop her from testifying

Policy ⇒ to prevent disruption in marital harmony, b/c want marriage to continue Court → *the reasons to protect this have disappeared, "chip by chip"* -Trend away from it (31 states to 24 states with it) -Such a priv is BROAD, effectively bars ANY adverse spousal testimony - *If one is willing to testify against the other → no purpose to preserve the relationship at that point!* - Does not outweigh the need for probative evidence

Standard of Scrutiny? *IMPORTANT NOTE* on Windsor? & Dissent?

The court does not specify BUT: 2nd Cir case → Discrimination based on sex → intermediate scrutiny (important gov't objective that's substantially related) → FAILED *NOTE → Windsor did not guarantee right to same-sex marriage* Dissent, Scalia: -The power to strike this down is not in the Constitution

2. DP Grounds?

This law violated *the FUNDAMENTAL RIGHT TO MARRY* Denied on an unsupportable basis, which is depriving them of a fundamental right w/o the due process of law *Right to marry = fundamental right → b/c it is just accepted, long tradition, right of free men*

Takeaways?

This scheme, as well intentioned as it might have been in theory, violates equal protection because: (a)The *right to marry is fundamental, and even if the interest to be protected is compelling, the means of protecting it must still be narrowly tailored to accomplish that goal* (a)HERE, the *means were ineffective and unnecessary*

*Turner v. Safley(1987)* Inmates prevented from marrying one another by state law that granted such allowance ONLY when the permission of the superintendent when there was a compelling reason to do so State argued→ ? P argued→? Court⇒ ?

Turner v. Safley(1987): Inmates prevented from marrying one another by state law that granted such allowance ONLY when the permission of the superintendent when there was a compelling reason to do so State argued→ security reasons, to prevent potentially violent love triangles (usually among women) P argued→ Zablocki does apply to prison inmates b/c you lose certain rights when you go to prison *Court⇒ Zablocki does apply!* 1. Inmates *retain rights that aren't inconsistent w/ penological goals* 2. *Marriage is an expression of commitment, possibility religion, and emotional support* 3. *Most inmates get released & want them to have support when they leave!* *Marriage is a fundamental right → therefore, the State would need a legitimate reason to regulate such* (Court noted their may be valid regulations here in prison w/ marriage)

NY DRL § 6: VOID Marriage Marriage is VOID if ______, UNLESS ______

VOID IF *contracted by a person whose husband or wife by a former marriage is living, UNLESS* ...: 1. *Such former marriage has been annulled or has been dissolved* for a cause other than the adultery of such person; provided, that if such former marriage has been dissolved for the cause of the adultery of such person, he or she may marry again in the cases provided for in section eight* of this chapter and such subsequent marriage shall be valid.

Important note about the facts and law of Vaughn

if a private company had made such a rule, 14th am not even apply!

*McGuire v. McGuire (NB 1953)* -Lydia M married Charles M, despite his reputation as a stingy guy -Over 33 yrs → Treated her poorly, she did all chores, worked on the farm, never took her to the movies in 12 yrs, not buy her clothes -Meanwhile, he's loaded in land -LM files for support from CM Court → 2 doctrines involved here!

there's *no separation or divorce action here, this is a private family affair and the court will not get involved!* -This was the arrangement for 33 yrs -Living situations during a marriage is NOT for the court to decide, as long as the home is maintained → 1. *Doctrine of support* = Husband to provide financial support and wife render domestic services → still exists in some capacity! → 2. *Doctrine of NONIntervention* = if a case concerning an on-going marriage, the court is not getting involved -BUT Not so much anymore!→ domestic abuse and child abuse are criminalized

Can you annul a consummated marriage?

you can still annul a consummated marriage, but courts are less likely to do so. BUT it would not hesitate, for instance, in the case if incest.

Consummating a Marriage Old common law → Problem, pg. 202 →P has an arranged marriage & wished to be married to someone of the same caste -P married her, unaware that her parents were members of another caste -P wants an annulment based on Fraud, to get a green card, and he wouldn't have married W argues he knew, the marriage was consummated

→ a woman's status is changed by consummation because no longer a "virgin" And if she if left by her husband, less likely to be able to find another spouse NJ → this marriage was consummated & therefore the fraud claim need to go to the "essentials" (of procreation)

*US v. Windsor (2013)* Ps, Spyer and Windsor, same sex couple married in Canada in 2007 and was recognized as valid in NY (therefore ) 2009, S died and left all to W W had to pay $363k in federal estate taxes & was denied a refund because not a spouse under DOMA DOMA define marriage as heterosexual for federal laws (regardless of NY's definition) This act______?

⇒ *this act created two different classes of people* 1. those who were recognized as married in both FED and State & get benefits in both 2. And those who weren't recognized FED and got no benefits there *DOMA is unconstitutional → violates the 5th EP clause (b/c the fed gov't)* -Discriminates based on the status of same-sex couples -This operates to deprive them of the same benefits & responsibilities that come with federal recognition of their marriage -Federal gov't interfered w/ state's right to ensure all persons are treated equally ⇒ *demeans the couple, seeks to humiliate their children*