Changing Concepts of Marriage and Family
Function v. Form: trend toward functional
Zoning: boards have broad discretion in the form of a family (blood, homos, etc.), it will
be upheld as long as it is rationally related to the government’s purpose.
Each state regulates for itself what constitutes a family.
Legal Benefits of family:
Contractual Arrangements as an Alternative to Marriage:
Unmarried couples can form private agreements: wills, joint ownerships, power or
attorney, life insurance beneficiary.
Marvin Trilogy: orally implied contract can be validly made between consenting adults as
long as it is not for sexual services.
Domestic Relations Exception: divorce, child custody, alimony etc. are exempt from
federal court jurisdiction.
Cant remove to federal court even if they wanted to.
Includes Support Actions of unmarried couples if:
State finds a significant state interest in this kind or relationship (like parent-child
or akin to marrige)
and the court must make the kind of inquiries that traditionally brought into play
the DR exception.
Ankerbrandt v. Richards: Tort cases not in the domestic relations exception even if they
are about father beating kids Domestic Partnership: not a marriage, just a public
recognition of a relationship and has a few well defined marriage like benefits, all job
Marriage: The State’s Interest
State wants to protect women and children, have efficient property division, etc.
Marriage Defined on page 60: the civil status of one man and one woman united for life,
for the discharge, to each other and the community, of the duties legally incumbent upon
those whose association is founded on the distinction of sex.
Maynard v. Hill: Marriage is more than just a K, it is a civil bond and a civil contract
Cannot be terminated at will, must go to court.
Formalities you must go through to get married (license etc.)
Once the relation is formed the law steps in to hold the parties to various
Rights, duties, etc. rest not on the agreement but on the law of the state.
Marriage at Sea: law of the state where the ship owner resides.
Strong Presumption in Favor of Valid Marriage
We want children to be legitimate
Protect expectations of the parties
We like to validate contracts
Recognition of foreign country marriages: the doctrine of comit, meaning we would like
to recognize a French marriage, but we don’t have to. (fisher)
Religion and Marriage
Sharma v. Sharma:
Indian woman pissed because her husband is divorcing her, she claims
hindus cant do this, thus it against the 1
freedom of religion for the state
to issuer her husband a divorce.