Marriage & Divorce Flashcards
(39 cards)
What is marriage?
The legal union of two individuals, with accompanying obligation and liabilities.
Does a person have an action for breach of promise to marry?
No, but may be able to recover the engagement ring if the gift was conditional on the marriage.
What is the position regarding the motivation or elimination of child support under a prenuptial agreement?
The agreement cannot modify or eliminate such provisions.
A prenup contains child custody arrangements. Are these valid?
Yes, but they don’t bind the court, so can always be reviewed.
What are the requirements to form a valid prenuptial agreement?
— In writing
— Signed by both parties
— Freely made (meaning no undue influence or disparity in bargaining power)
— No UNCONSCIONABILITY, meaning economic provisions are fair and reasonable.
— No LACK of DISCLOSURE (meaning (1) other party did not make a financial disclosure; (2) you had no independent knowledge of the hidden assets; and (3) no waiver
Does a prenup need to be formalised before the marriage?
No, but if done once the couple are married, it’s called a marital agreement.
What are the requirements to enter into a common law marriage?
- Consent between two people
- Co-habitation
- Holding out to the public that you are living together as spouses
Generally, what 3 steps does a couple need to formally marry?
- Freely intend to enter into a marriage relationship
- Licence
- Officiant to conduct the marriage
What is a putative marriage?
Where a party thinks they are entering into a marriage, but it’s subsequently declared invalid.
The court can provide equitable relief to the couple in such circumstances
Broadly speaking, what are the two ways to end a marriage?
- Annulment
2. Divorce
What is annulment?
The declaration that a marriage is invalid because there was an impediment at the time of marriage.
Once an annulment decree is entered, what is the effect?
The parties are treated as though they were never married.
If there was a MORE SERIOUS impediment to your marriage being formed, the marriage is considered what?
VOID and it’s as though the marriage never existed.
If a marriage is VOID, can the defect be waived?
No and the parties do not need an annulment.
Can an interested party seek annulment of a void OR voidable marriage?
Only a VOID marriage. They have no interest in a VOIDABLE marriage.
What are the two grounds for a marriage being VOID?
- Bigamy
2. Incest
Why might a spouse want to pursue an annulment if their marriage is already VOID?
— For clarity of the record
— Resolve collateral issues
If a marriage is VOIDABLE, can this less serious impediment be waived?
Yes and you are married until your case is heard by a judge.
State the 5 issues that could make a marriage Voidable?
— Underage
— Mental incapacity
— Incurable physical impotence
— Duress
— Fraud (that goes to an ESSENTIAL aspect of the marriage)
What is a common method of waiving the impediment to a Voidable marriage?
Continuing to co-habit
A woman lies to her to-be-husband about her social status and her family inheritance. Would this be a ground for annulment?
No, lying about money, property or social status is NOT a ground for annulment.
Under the modern approach, do you require marital misconduct in order to seek divorce?
No
When should a spouse pursue a no fault divorce?
When there has been an irretrievable breakdown of the marriage.
How do you prove an irretrievable breakdown of a marriage?
Spouse living separately + no physical relations
