Family Law Outline

1. Marriage

   1. There is a constitutional right to marry.

      1. Restrictions of this right are viewed under strict scrutiny

      2. 3 parties to a marriage = 1 man + 1 woman + the state

   2. Oklahoma Marriage Statutes (Title 43)

      1. §1: Marriage

         1. A personal relation arising out of a civil contract to which the consent of parties legally competent of contracting and of entering into it is necessary,

            1. Marriage relation shall only be entered into, maintained or ended as provided by law.

      2. Who May Marry (§3)

         1. To marry, parties must be 18 (unless they get special permission if they are 16 or 17) and capable of contracting.

         2. Parties must be opposite sexes

      3. §123: Remarriage and Cohabitation

         1. In Ok, can’t remarry within 6 months of divorce (if you do = Bigamy)

         2. May remarry in a different state within 6 months (if that state allows it)

         3. In OK, can’t cohabitate within 6 months of a divorce (if you do = adultery)

         4. If decree is appealed, one cannot marry or cohabitate until the expiration of 30 days from final appellate judgment.

      4. A marriage where one of the parties has not been divorced for 6 months is grounds for annulment by either party (§126)

   3. Three Types of Marriages

      1. Valid Marriages

         1. Marriage that complies with statutory requirements

         2. Can only be dissolved through divorce

      2. Void Marriages

         1. Treated as having never existed

         2. No formal action is needed to declare the marriage invalid

         3. Can be attacked by any interested third parties,

         4. Can be challenged at any time, even after death

         5. No temporary alimony

         6. Types of void marriages

            1. Incestuous marriages (and consanguinity)

               • Ex: parent/child; stepparent/child; uncle/niece or aunt/nephew where blood related; (half) brother/(half) sister; cousin/cousin.

                 • First-cousins married in another state where it’s legal is given FF&C.

            2. Bigamous marriages

            3. Same-sex marriage) in OK

      3. Voidable Marriage

         1. Marriage exists until formally terminated (divorce or annulment)

         2. Can be attacked by either party or their guardians

         3. Temporary alimony is given

         4. Survives death (cannot be voided after death)

         5. Can be ratified by the parties’ conduct after removal of the legal impediment

            1. E.g. under age party becomes of age - the marriage is no longer voidable

         6. If not annulled in a timely manner, it becomes a valid marriage from its inception.

         7. Types of voidable marriages

            1. One of the parties is incompetent at the time of the marriage

            2. One person does not meet age requirements

            3. Marriage with fraud going to the essence of the marriage/duress/ coercion

            4. Marriages within 6 months after divorce is finalized

   4. Same Sex Marriages

      1. Prohibited (no FF+C requirement due to DOMA)

      2. When is a marriage considered to be same-sex?

         1. OK view - Consider the parties’ gender at birth (chromosomes)

            • OK view

         2. Other view - Consider the parties’ physical characteristics at the time of marriage

   5. Fraud and the Marriage Relationship

      1. A marriage can be annulled when there is fraud going to the essence of the marriage.

         1. Fraud is so material that the deceived party likely would not have consented to the marriage had he known the truth

         2. May consist of an affirmative false representation or withholding of the truth

      2. Examples of fraud that do go to the essence of the marriage

         1. Hiding STD

         2. Lying about desire to have kids

         3. Lying about the intent/ability to have sex

         4. Claim of existing pregnancy coupled with representation that spouse is the child’s father

         5. Lying about religious beliefs

         6. Concealing a criminal background

         7. Concealing that marriage was for purpose of gaining citizenship

         8. Concealing drug addiction

      3. Examples of fraud that do not go to the essence of marriage

         1. Misrepresentation of affection

         2. Concealing prior drug use

         3. Concealing prior marriage and divorce

         4. Lying about wealth

         5. Lying about age

         6. Lying about being pregnant

   6. Annulment v. Divorce

      1. Reasons one prefers annulment

         1. Religious reasons

         2. To avoid support payments

      2. Reasons one prefers a divorce

         1. Property and support rights

2. Common Law Marriage

   1. Characteristics of CLM

      1. Actual and mutual agreement between spouses to be husband and wife

      2. Permanent relationship

      3. Exclusive relationship

      4. Cohabitation

      5. Parties hold themselves publicly to be married

         1. Children born of the relationship; filing joint tax returns; joint bank accounts is good evidence of common law marriage

   2. Party asserting common law marriage must prove it by clear and convincing evidence

   3. There is no magical length of time necessary to create a CLM

      1. Look to the intent and behavior of the parties… not length of the relationship

   4. To terminate a CLM, parties must get a divorce.

   5. CLM can be created in OK, even if the parties are not residents or domiciliaries

      1. OK holds that being in state for 5 weeks, 3 times/yr is enough contacts to recognize CLM

3. Marriage Presumptions

   1. Strong presumption to the validity of a ceremonial marriage

      1. Rebuttable by clear evidence of existing CLM not terminated by divorce.

   2. Court presumes that prior marriages of either party to a ceremonial marriage have been terminated by either divorce or death.

   3. When a marriage is shown, either common law or ceremonial, the law presumes its validity in that the previously married party divorced the previous spouse

   4. In proving CLM, an inference, if not a presumption, of marriage arises from the cohabitation.

4. Rights/Duties Between Spouses, Parties and Children

   1. Oklahoma Statutes (Title 43)

      1. H or W can enter contracts between themselves or separately with others (§204)

      2. H and W cannot alter legal relations with each other by contract (no divorce by contract)

         1. Except as to property

         2. They can agree in writing to immediate separation and can agree to provide for support of either of them and their children during separation (§205)

      3. Mutual consent of the parties is sufficient consideration for a §205 agreement (§206)

      4. Husband abandoned by wife is not liable for her support until she offers to return unless:

         1. She is justified in abandoning him because of his misconduct

         2. Support is stipulated in the separation agreement (§210)

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