Law of the Intact Marriage

Law of the Intact Marriage

To what extent will the state intervene to resolve disputes in ongoing marriages?

What are the duties spouses owe to one another during marriage?

Ownership of property during marriage

Economic Privileges and Disabilities of Married Women

The law of coverture Women have no capacity to contract,

draft wills, sue or be sued, or own property in their own names.

Husbands hold rights in their wives’ property and earnings.

Husband’s duties

• Supply W with necessaries and pay her debts

• Be solely liable for the couple's joint torts

• Be jointly liable for wife's torts• Be solely liable for torts and crimes

committed by wife in husband’s presence

What changed?

• Sociological & demographic changes in the role of women in the home and economy.

• Legislation (e.g., the married women’s property acts).

• Constitutional interpretation (recognizing gender discrimination as a violation of equal protection).

Two Property Schemes

Common Law

Community Property

Common Law

• no “marital” or “community” property exists

• Parties can own property jointly or, in some states, by the entireties

• Individual ownership determined by title

Community Property (or UMPA)

• Community (or “marital”) property: all property acquired during the marriage

• Separate (or “individual”) property: generally property acquired before the marriage or by gift or inheritance.

Entireties: A Peculiar Form of

Ownership

Creating Tenancy by Entireties

By Conveyance By Presumption By Tracing

How can one sever an entirety?

• Death (sort of)• Divorce• Conveyance• "Consent,

agreement or acquiescence"

Who Controls Entireties Property?

• Equal (usually joint) management

• No agency implied• Individual control

requires the “consent, acquiescence or agreement” of spouse

Effect of Entireties

• Ownership of entire interest continues upon death of one spouse

• Property can only be controlled by both spouses

• Property is shielded from individual debts

How can one avoid an entirety?

• Get it separate (earn it, buy it, receive it)

and• Keep it separate

Doctrine of Family Autonomy

McGuire v. McGuire

Doctrine of Necessaries

• Sharpe Furniture v. Buckstaff

Modern Formulations of the Duty of Support

• How to reformulate the doctrine?

– Abolish

– Make gender neutral

– Make liability secondary to responsible party

• To what extent should this duty be subject to contractual modification?

TORTS & MARRIAGE

Breaches of Promises

• Alienation of Affection

• Criminal Conversation

Interspousal Tort Immunity

• Justifications?

• Applications?

• Joining tort actions with divorce