Summary
Summary UBE - Family Law (Notes)
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Marriage Being Married Property Division Separation Alimony Child Support Child Custody Non-Marital Children Parent/Child/State Adoption
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FAMILY LAW1) 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
, property in a marriage. Marital property includes property acquired by both spouses during the
marriage. Separate property includes property acquired before the marriage, as well as property
acquired as a gift, by bequest or inheritance during the marriage. The manner of distribution depends
on the state’s approach. Few states allow an equal division of marital property, in which half will go
to one spouse and the other spouse receives the remainder half. Separate property will be distributed
directly to the spouse who owns it. Some states also allow equitable division of both marital and
separate property, which is determined by the courts based on numerous factors. However, the UPC’s
approach is most commonly followed, in which separate property is divided to the spouses who
personally own them, whereas marital property is divided equitably. Marital property not only
includes property acquired during the marriage, but various other pieces of property. For instance,
the value of any businesses operated by the spouses during the marriage may be distributed equitably.
Pensions earned during the marriage will also count as marital property, as well as stocks purchased.
Compensation paid by a spouse towards his partner’s licence or degree qualification will also be
distributed equitably. Any tortious damages incurred during the marriage until separation will also be
distributed equitably, as well as separate property co-mingled with marital property to the extent that
its identity cannot be recovered. The factors that determine equitable distribution include the age of
the spouses, their marriage duration and standard of living, their health and employment, their
financial worth, their number of children, and any child or spousal support required to be paid. But
unlike child or spousal support, property division decrees are not modifiable by the parties once they
have been issued because courts want to ascertain past divisions at the beginning of the separation
proceedings. Whereas child or spousal support is likely to be affected by any changes in the spouses’
or child’s financial or mental circumstances, in which courts will allow modifications as they would
be necessary to reflect such changes.
4) Separation (UMDA)
Spouses can choose to separate and terminate their marriage in various ways. Annulments are
declared if the marriage had formation issues, whereas divorces are granted if issues arose during the
marriage.
An annulment declares a marriage null and void as though it never existed, however an annulment
does not necessarily lead to termination of a marriage automatically. A void marriage will declare the
marriage null and void without any court order issuance. It requires either evidence of impediments,
such that the spouses are related to one another, one of the spouses remaining married to another
spouse outside the marriage, or the spouses lacked capacity in terms of age when entering the
marriage. In this case, any party outside of the marriage has the right to attack the marriage and
declare that it should be void. Whereas a voidable marriage does not terminate the marriage
automatically. The marriage will continue to exist until the court declares an annulment. Thus the
spouses can enjoy any marital rights until then. Unlike a void marriage, voidable marriages can only
be attacked by the spouses. Also, they require evidence that the spouses lacked capacity when they
entered the marriage due to alcohol or drug intoxication, duress or undue influence. However, the
spouses can assert specific defences to prevent the termination of the marriage. Under the Uniform
Marriage and Divorces Act (UMDA), the spouses can argue that the existing impediment was
removed and they both continue to live together. This applies to both void and voidable marriages.
However, annulment of voidable marriages can also be prevented if the spouses ratify the marriage,
the spouse attacking the validity of the marriage was unable to bring the claim within a reasonable
period of time because time had lapsed since the marriage was entered until the claim was brought,
the innocent spouse is estopped from denying the existence of the marriage as the guilty spouse
detrimentally relied on the existence of it and it was reasonably foreseeable for him to do so.
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