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7 Cards in this Set
- Front
- Back
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To have a lawful marriage, the two requirements are
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1. Both parties must have legal capacity
a. cannot be married b. cannot fall within the statutorily prohibited degrees of consanguinity c. no bigamy or incest d. other defects (non-age, fraud, coercion, sexual incapacity, lack of consent) 2. the parties must satisfy the legal requirements for contracting a marriage a. license b. witnessed ceremony, AND c. public recordation |
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putative spouse doctrine
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A putative spouse is someone who has a reasoanble good faith belief in the validity of the marriage. Normal people do not know the rules. Don’t have to have solemnization for a good faith belief. Putative spouse status only goes as long as the gf belief survives. If the person finds out about the inability to marry any property acquired after that marriage is not to a putative spouse but to a meritrius spouse and will not be treated the same.
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married woman's presumption
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Real or personal property acquired before 1/1/75 by a married woman by instrument in writing are conclusive: (a) if acquired by married woman in her name - presumption is SP (b) woman and other person - presumption is that woman takes her part as TIC (c) if husband and wife - presumption is that property is community unless different intention is expressed in the instrument. *Not the law anymore but would still apply if the parties are divorcing now but the property was acquired before 75.
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Is the married woman's presumption defeated by tracing of funds?
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Not alone, no. Mete tracing of CP funds does NOT overcome the married woman's special presumption of SP before 1/1/75.
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What is enough to overcome the married woman's presumption?
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Tracing + H's lack of knowledge that title was in wife's name only was held to be enough to rebut the presumption that property was wife's SP.
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How does the married woman's presumption apply to title taken as husband and wife?
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Presumption is that H's portion belongs to the community and W's portion is held as TIC, SP, unless a different intention is expressed in the instrument. This is applied to cases where the property was acquired before 1/1/75 or if the property is held as tenants in common.
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How can the presumption that property acquired during marriage is CP be overcome?
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Title evidence that H & W hold title as joint tenants.
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