FAMILY LAW
1) Marriage (SOF/UPAA)
Under the Statute of Frauds, a formal statutory marriage requires the following. Firstly, both
spouses must have capacity to enter the marriage. They must be at least 18 years of age and have
mental capacity to voluntarily enter the marriage. Secondly, both must have consented to the
marriage. Third, they must not be related to one another. Fourth, they must not have been in a
continued married relationship with anyone else at the time. However, the doctrine of ‘putative
spouse’ does provide an exception whereby one of the spouses was not aware that the other was still
married, and he had reasonable belief that he was not married. Fifth, there must have been
solemnisation. Lastly, they must have been issued a marriage licence. Most states require that a
licence be issued after waiting for 72 hours. However, some states still require that a physician’s
certificate be issued, confirming that the spouses are free from any communal diseases.
Even if the marriage does not conform with the statutory requirements, common law still recognises
a valid marriage, but this is rarely recognised in most states. In fact, most states have now abolished
a common law marriage. If the state does give an exception, a common law marriage may still be
valid if it includes the following. Firstly, like a statutory marriage, both spouses must have
consented to the marriage and had capacity in doing so. Secondly, they must be living together.
Lastly, they must have publicly held themselves out as being married, such as entering a joint bank
account or naming themselves on contractual agreements as a married couple.
Spouses can enter into pre-marital agreements under the Uniform Pre-Marital Agreement Act
(UPAA). These agreements will determine the distribution of marital property and child support
provisions, as well as determining their rights in contracts and wills, should they ever separate.
However, child custody provisions are never binding in pre-marital agreements because it is
ultimately for the court to determine how child custody be made by considering the child’s best
interests, rather than relying solely on the pre-marital agreement’s provisions. Under the UPAA, a
pre-marital agreement requires the following. Firstly, both spouses must have consented and had
capacity to enter the agreement unless there was unconscionability involved. Secondly, both must
have made full disclosure of their financial worth. Third, they must include fair and reasonable
provisions. Fourth, the agreement must be signed and in writing. Lastly, although not a mandatory
requirement, they should hire independent counsel to represent each other when entering the
agreement. A separation agreement requires the same, but also consideration towards entering the
agreement whereas a pre-marital agreement does not.
2) Being Married
Where one of the spouses enters into a contract with a third party and the spouse is responsible
towards causing injury towards that third party, the other spouse is generally not liable to that third
party. The agency theory used to recognise that the other spouse may be liable, however such
theory has now been abolished. As well as third party liabilities, a third party who intervenes in an
existing marriage or has sexual relations with one of the spouses will generally not give the other
spouse the right to sue the third party, unless few states recognise such right in doing so.
3) Property Division (UPC)
Where two spouses separate, the division of their property may be determined by the courts or by
existing property division provisions in an existing pre-marital agreement. There are two types of
1) Marriage (SOF/UPAA)
Under the Statute of Frauds, a formal statutory marriage requires the following. Firstly, both
spouses must have capacity to enter the marriage. They must be at least 18 years of age and have
mental capacity to voluntarily enter the marriage. Secondly, both must have consented to the
marriage. Third, they must not be related to one another. Fourth, they must not have been in a
continued married relationship with anyone else at the time. However, the doctrine of ‘putative
spouse’ does provide an exception whereby one of the spouses was not aware that the other was still
married, and he had reasonable belief that he was not married. Fifth, there must have been
solemnisation. Lastly, they must have been issued a marriage licence. Most states require that a
licence be issued after waiting for 72 hours. However, some states still require that a physician’s
certificate be issued, confirming that the spouses are free from any communal diseases.
Even if the marriage does not conform with the statutory requirements, common law still recognises
a valid marriage, but this is rarely recognised in most states. In fact, most states have now abolished
a common law marriage. If the state does give an exception, a common law marriage may still be
valid if it includes the following. Firstly, like a statutory marriage, both spouses must have
consented to the marriage and had capacity in doing so. Secondly, they must be living together.
Lastly, they must have publicly held themselves out as being married, such as entering a joint bank
account or naming themselves on contractual agreements as a married couple.
Spouses can enter into pre-marital agreements under the Uniform Pre-Marital Agreement Act
(UPAA). These agreements will determine the distribution of marital property and child support
provisions, as well as determining their rights in contracts and wills, should they ever separate.
However, child custody provisions are never binding in pre-marital agreements because it is
ultimately for the court to determine how child custody be made by considering the child’s best
interests, rather than relying solely on the pre-marital agreement’s provisions. Under the UPAA, a
pre-marital agreement requires the following. Firstly, both spouses must have consented and had
capacity to enter the agreement unless there was unconscionability involved. Secondly, both must
have made full disclosure of their financial worth. Third, they must include fair and reasonable
provisions. Fourth, the agreement must be signed and in writing. Lastly, although not a mandatory
requirement, they should hire independent counsel to represent each other when entering the
agreement. A separation agreement requires the same, but also consideration towards entering the
agreement whereas a pre-marital agreement does not.
2) Being Married
Where one of the spouses enters into a contract with a third party and the spouse is responsible
towards causing injury towards that third party, the other spouse is generally not liable to that third
party. The agency theory used to recognise that the other spouse may be liable, however such
theory has now been abolished. As well as third party liabilities, a third party who intervenes in an
existing marriage or has sexual relations with one of the spouses will generally not give the other
spouse the right to sue the third party, unless few states recognise such right in doing so.
3) Property Division (UPC)
Where two spouses separate, the division of their property may be determined by the courts or by
existing property division provisions in an existing pre-marital agreement. There are two types of
