Family Law Outline
Themes of the class
; Social—what social purposes are served by the family? How has the family been used to construct/maintain social/political structures? How does this act to exclude certain groups from these structures?
; Political—what is the relationship between the family and the state? How should it be regulated? Is the state an aggregation of families or individuals?
; Economic—how is the state to regulate the economic relationships of family members? Should the cost of dependence be privatized, borne by family members or more collectively?
; Individual control—how much should the individual be in control of his own family relationships? How much should these be statuses? How much should these be deemed contractual in nature?
I. Theoretical and Historical Perspectives on the Family
a. Marriage and Parenthood in the Liberal and Republican Traditions
i. Republican tradition
1. Locke and Hobbes represent the Republican tradition, which think
of the family as the ―first society‖ upon which all political
structures are erected, and which are justified by analogy to the
family. And while the family is hierarchical in relationship, the
responsibilities are reciprocal.
a. Moreover, the state is going to respect the family. It‘s sort
of like federalism—just as the federal gov‘t interacts with
the states as states, the gov‘t will interact with the families
b. Hence, society is an aggregation of households rather than
an aggregation of individuals.
2. Position of man—he‘s like a sovereign, w/ responsibilities of
dubious enforceability to other family members.
3. Rationale for female subordination:
a. Because man is ―best qualified‖ for the task of governing a
b. Because man generally the more excellent sex, and so
instances where woman would be dominant would be very
c. Because it is natural (Locke)
i. Unavoidably, there will be intrafamily conflicts,
therefore, the state must know to whom to look to
make family decisions. This falls to the man, ―as
the abler and the stronger.‖ That is, the husband is
the better decisionmaker
4. Three elements of early modern family law: (1) hierarchy was
necessary to the operation of the household; (2) proper director of
family‘s activities was its husband/father/master; and (3) the
subordination of wife to husband was foundation of family unit
and thus society itself.
ii. Liberal Tradition
1. Each sphere of human activity ought to be governed by its own
goods. Each area has its own ―justice.‖
2. In marriage and married life, he feels that romantic love is the
appropriate governing norm
3. Society is an aggregation of individuals rather than an aggregation
b. Modern Feminist Criticism
i. The critique of liberalism for ignoring the family or treating it as a special
1. Liberal theories that purport to be universal theories of justice
ignore the family (e.g., Rawls)
2. Why is this inadequate?
a. Completely ignores women
b. Family regulations, etc., should be consistent w/ notions of
sexual equality—families should be ordered by norms of
ii. What does justice mean w/in the family? (does feminism have any
positive suggestions, or is it just criticism?)
1. Okin on the sources of injustice w/in the family—Ignoring gender
relations is unacceptable because: (1) women must be fully
included in any satisfactory theory of justice; (2) equality of
opportunity is seriously undermined by the current gender
injustices of our society; and (3) the family must be just if we are
to have a just society.
a. Disparities within the family—women are primary parents
(which has side effect of worsening women‘s careers),
while men are primary ―breadwinners‖ (which has side
effect of enhancing men‘s personal careers).
b. Effect on children—if children‘s first experience w/ gender
roles is one of sexual inequality, it‘s hard for them to learn
norms of sexual equality.
c. Disparities between families—w/ increased rates of
divorce/single motherhood, the disparity between the sexes
has compounded the problem that some families are
wealthier than others. The division of labor w/in a family
leaves women less capable than men for supporting
themselves, making the women relatively impoverished
upon divorce (esp. when including the frequent
nonpayment of child support).
2. Schultz on the status/contract distinction (so what‘s the solution to
make the family more consistent w/ norms of sex equality?)
a. Something is a contract rule if its terms are subject to individual change—there‘s a default rule that the parties can negotiate around
i. Examples of contract rules: Division of property
agreements (prenups), where they live, etc.
b. Something is a status rule if its terms are unchangeable from state-set rule—it‘s an all-or-nothing package
i. Examples of status rule: Married couple can‘t
contract for domestic services, can‘t bargain around
marital rape exemption, interspousal tort immunities,
rules about marriage choice (polygamy, incest, etc.)
c. The trend is to move from status rules to contract rules, and Schultz feels that this is the way to alleviate problems of family law
i. Why would private agreements be more consistent
w/ feminist notions of sexual equality? If parties
can reach mutually agreeable bargains, then they‘ll
ipso facto be good for the parties.
a. Since men earn more, the realities of
the market will mean that parties are
likely to contract in ways that
perpetuate gender roles
b. Bounded rationality problem: parties
will find this easy route to go to
because bounded rationality problem
from socialized norms of family life:
e.g., the stay-at-home mom
c. Information failure: People have
unrealistic expectations of success of
d. Anticommodification: the contract
bargaining model doesn‘t graft well
w/ marriage, because people don‘t
bargain for self-benefit in the context
of a marriage
2. Of course, this all really turns on what the
substance of the status rules are. If they‘re
bad or unequal, contract rules are
nevertheless desirable. Otherwise, status
rules may generally be superior
3. Disparities between families—have tremendous effect on
children‘s opportunities. If we value equality, this is something
else social justice should tackle.
a. Is it legitimate to distribute wealth and opportunities based on family (e.g., allow inheritance)?
i. Opposing principles: freedom of property v.
egalitarianism. Of course, we‘re not just talking
about wealth, but also opportunities creating by
good nurturers. This has a problem in that bettering
one‘s family‘s fortunes is a primary incentive that
we‘d be tampering with.
4. Fineman on the privatization of dependency
a. This norm has effect of promoting traditional gender
roles—forces women to stay home to take care of family b. Has stigmatizing effect on those who cannot provide for all
of family‘s needs (e.g., single mothers)
c. Privatization of dependency is a myth:
i. State already provides for families in many ways,
but they‘re just not perceived as payments to the
family (e.g., tax benefits vs. welfare payments) d. Is the privatization of dependency really a problem?
i. If we eliminate it, we‘ll get larger families
ii. Subsidies provided for child rearing (as opposed to
cash to pay household expenses) aren‘t going to be
as good as what family provides
iii. We‘ll get homogenized children who will be
unwilling to support their own families in the future
II. The Common Law of Marriage
a. Status/Contract at Common Law
i. The contract to marry
1. Though there are some limits (e.g., no polygamy, incest, etc.), this
area generally covered by contract law
2. Capacity and Intent to Marry
a. Void and Voidable Marriages
i. Void marriage—legal nullity, incapable of
possessing any marital consequences; thus, it can
never ratified and can be collaterally attacked by rdeither ―spouse,‖ by any interested 3 party, or by
the state—even after the death of either ―spouse.‖
1. Examples: same sex marriage, polygamous
marriage, incestuous marriage.
ii. Voidable marriage—valid unless annulled by either
spouse. Cannot be annulled after death of either
spouse, nor can anyone other than spouse attack it.
1. Examples: underage marriage, fraudulent
marriage, marriage under duress, marriage
to a mental incompetent, sham marriage,
marriage in jest. In some states, marriage
can also be annulled for: natural/incurable
impotency, marriage to felon/prostitute,
marriage to spouse who is pregnant or who
has recently impregnated another woman.
2. Fraudulent marriage—(1) there must be
material fraud and (2) the fraud must affect
the essentials of the present marriage (i.e.,
must adversely affect the possibility of
normal marital cohabitation).
a. Examples of sufficient fraud: lying
about an intent not to have
sex/children, concealment of
impotency/STD, concealment of
pregnancy by another, lying about
one‘s religious beliefs
b. Examples of insufficient fraud: lying
about your character, chastity, age,
health, wealth, citizenship, ancestry,
number of prior marriages, lack of
love, that you‘re pregnant by
3. Breach of Promise to Marry—an action at common law that is still around in a few states, but most have eliminated b/c (1) inconsistent w/ no-fault divorce, and (2) possibility of fraud (―fertile field for blackmail and extortion‖).
4. Premarital gifts
a. Traditional rule is that donor of gift conditioned on
marriage can only recover the gift if the engagement is
dissolved by mutual agreement or if the engagement is
unjustifiably broken off by the donee.
b. Modern rule is that such gifts must be returned no matter
what. Rationale: if fault is irrelevant to modern divorce
proceedings, so should it also be deemed irrelevant to the
breaking of the engagement. Also, the purpose of
engagement period is to allow a couple time to test the
permanency of their feelings, and so it would be ironic to
penalize donor for taking steps to prevent unhappy
5. Premarital agreements (―prenups‖)—originally used mostly by
older couples getting remarried, but not being used more broadly by couples who want to maintain property they have or will acquire as separate rather than as marital property
a. Traditional approach—can only affect property rights on
the death of a spouse (i.e., mutual bar of dower/curtesy,
surrender of right of election to take against another‘s
estate). Would only be enforced if (1) agreement provided
for full disclosure of the parties‘ assets; (2) independent
legal advice of counsel provided to less empowered spouse.
i. Worry of overreaching—parties aren‘t negotiating
at arms length
ii. Agreements weren‘t enforced if they had contingent
divorce planning provisions, b/c such provisions
were thought to ―encourage‖ or ―promote‖ divorce.
This had undesirable consequence of invalidating
b. Modern approach—divorce planning provisions enforced if
(1) contractual terms are fair and (2) contract made w/ full
disclosure of parties‘ worth.
i. Rationale—such agreements promote rather than
reduce marital stability by defining the expectations
and responsibilities of the parties
c. Uniform Premarital Agreement Act
i. Child support rights cannot be bargained around;
nor can spousal support be so low that spouse
qualifies for public assistance
ii. Agreements unenforceable if:
1. the party didn‘t execute the agreement
2. the agreement was unconscionable when it
was executed if a party:
a. wasn‘t provided w/ fair/reasonable
disclosure of property/financial
obligations of other party,
b. didn‘t voluntarily and expressly
waive, in writing, such disclosure,
c. didn‘t have adequate knowledge of
the property/financial obligations of
the other party.
ii. The status of being married
1. Since marriage is a legal status based upon contract, there are three
parties to any marriage: husband, wife, and the state, and public policy of the state is to regulate marriage based upon the general welfare of its citizens.
2. In pretty much every area that‘s not property-based, the contract to
marry disappears into the status of being married, whose terms are set by state and unalterable.
a. Rationale for status rules as opposed to contract rules—
marriage is too important a link between man and
god/society for people to alter
3. Terms at common law (see grounds for void/voidable marriages above):
a. No divorce w/out cause (e.g., adultery)
i. Rationale for restrictions on divorce—people know
these status rules in advance
b. Subsequent incapacity of one spouse doesn‘t end marriage
c. Support Rights and Obligations
i. Husband had duty to provide support to wife (and
she had corresponding duty to provide household
ii. Can‘t directly enforce the duty in court
1. Rationale: the living standards of a family
are a matter of concern to the household and
not for the courts to determine (i.e., notions
of family autonomy and privacy, coupled
with apprehensions that courts would be
overburdened with ―trivial‖ family matters if
family members were provided a legal
forum for airing grievances against each
2. It is consonant w/ the idea that women never
have right to cash (just like wives not having
rights to own wages), which is again
designed to increase man‘s rights vis a vis
iii. Doctrine of necessaries—wife/child could purchase
any essential good/service on husband‘s credit and
husband became directly liable to the provider of
these necessary items
1. Family‘s economic status/standard of living
and husband‘s ability to provide defined
scope of doctrine
2. Merchants can‘t recover when items
furnished gratuitously, when husband had
already provided necessaries, or when wife
wrongfully lived apart from husband.
3. Consequences of not making duty to support
a. Limited practical application—risky
iv. Separate Maintenance—c/l doctrine that permitted
wife to sue her husband for non-support during the
spouses‘ separation while they remained legally
v. Family support statutes
1. Family Expense Statutes
a. Allows creditor to execute against
either spouse‘s property to collect
debts incurred for necessary family
expenses (i.e., a codification of the
doctrine of necessaries).
2. Criminal Non-Support Statutes
a. Only come into play in drastic
cases—where spouse/child left
completely w/out means of
also require abandonment in addition
to non-support (thus, don‘t apply
when spouses living under same
roof). D can‘t be convicted for non-
support unless capable of providing
b. Purpose is to protect the public, not
the deserted spouse.
c. Criticism—self-defeating: Ds won‘t
be able to provide support for their
families if they are jailed. But
statutes have dual purpose of
punishing past behavior and acting
as incentive to D to comply w/
support obligations in the future.
b. Common Law Coverture
i. Legal consequences
1. Wives cannot sue, claim custody, keep wages, form contracts, must surrender all personal property to husband, must give a realty to husband to manage (and to have curtesy if they have a kid), husband has legal right to her person (including sex—marital rape
2. Married women still subject to criminal law, unless it‘s a petty crime (in which case husband was responsible).
a. Any felony or a ―feminine‖ crime (e.g., running a brothel),
she was individually responsible b/c it was thought husband
couldn‘t have influenced her.
a. Feme sole estate—courts of equity began to ameliorate c/l
disabilities by allowing specific property to be held in trust
for the wife‘s ―sole and separate use.‖ This was a kind of
estate that had to be created by someone other than the wife
herself. It allowed wife to retain her property rights after
marriage and to contract, convey, devise, and sue/be sued
w/ respect to that property, while safeguarding her from
exposure to the claims of her husband and his creditors. thb. Married Women‘s Property Acts—passed in late 19
century. Grant wives the rights to acquire/own/transfer all
types of real/personal property to the same extent as
unmarried women. Allow wives to enter into contracts, to
retain own earnings, to make wills, to sue and be sued, and
to be responsible for own tortuous/criminal conduct.
Typically shielded wife‘s assets from husband‘s creditors.
Since most married women weren‘t employed outside the
home and brought little property into the marriage, the
economic position of married women in general wasn‘t
ii. Contemporary explanations
1. Blackstone—a woman was civilly dead (well, suspended
animation) after she married, b/c her identity merges into that of her husband
a. Gender hierarchical—he‘s like the benevolent parent and
she like the child. It‘s not supposed to be a despotic
b. Blackstone may have been somewhat overstating the
case—wives had certain rights in equity, which were
defensive safeguards of her separately inherited property (if
set up by others, e.g., her father—feme sole estate).
2. Reeve (an early American judge)—justified civil disabilities on
wife as means of protecting husband‘s rights to his wife‘s person (e.g., if she can enter into contracts, she can go to debtors prison which would deprive husband of her services). Hence, the rights of husbands are privileged much higher than anyone else‘s rights (except that of state when wife commits a felony).
iii. Possible modern explanations
1. Love—since women have so little rights, we know they‘d only get married for love. In other words, it assures us that people get married for the ―right‖ reason. And it forces every marriage to mirror the ideal marriage (no conflict)
a. However, there are problems w/ the idea that there‘s no exit
remedy for women. What if she falls out of love w/ her
b. Moreover, it‘s not clear that we promote marital love
through making one party subservient to the other. The
fact that the husband‘s will always controls undermines
2. Privacy—lessens state involvement in private affairs
a. Marital problems can get to public sphere w/out going to
courts. Marriage isn‘t made a complete black box by the
regime of coverture.
b. Assumes unity of interest between husband and wife. Only
a certain kind of privacy is recognized: man has right to
dominate (take her wages, etc.), but she has no reciprocal
3. Promotes marital stability by giving spouses separate spheres of
responsibility (husband public sphere and wife domestic sphere).
It does this by limiting arena of conflicts (coverture coupled w/
limited divorce). Coverture has result of disabling wife, who then
has incentive to make her husband happy w/ her so he supports her.
a. But this assumes that it is the lawsuit rather than the
conflict itself that destabilizes relationships. 4. Efficiency—very cheap rule to administer. Encourages people to
marry only those they think they‘ll get along financially and
otherwise w/ in the long term.
a. Efficiency losses, though, in getting around coverture (by
doctrine of necessity, or faking adultery to get a divorce,
b. Efficiency losses where husband isn‘t more competent than
wife in public sphere
c. Efficiency losses in distorting the market; reduces
incentives for wives to work b/c they have no right to
c. Common Law of Marriage Imported to America
1. Abolition of primogeniture
2. Killing one‘s husband no longer petty treason (as opposed to high
treason for regicide) th 3. Married Women Property Rights eventually passed in late 19
III. Common Law of Parenthood
a. How were legally recognized relations established between adults and their
1. Legitimate children—always recognized as the legal mother of
anyone they give birth to.
2. Illegitimate children
a. Original c/l view was that mothers and bastards wasn‘t a
family (though custom treated them as family). Bastards
didn‘t inherit and c/l didn‘t impose upon putative father any
legal liability to support.
b. Later, mothers given custody of bastard children.
i. Rationale—public welfare: mothers more likely to
care for their illegitimate children, and so reduce the
strain on public resources—privatizing necessity.
Also found its root in the ―cult of domesticity‖
(womanhood being equated w/ motherhood).
1. Legitimate children—c/l takes the man to be the legal father of any
child his wife gives birth to while they are married.