CONTENTS VOLUME 1 VOLUME 2

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H

ELEN

C. D

ILLON

2

MARRIAGE; ANNULMENT;

SEPARATION

HELEN C.DILLON, B.A., Lewis and Clark College (1965); J.D., Northwestern School of Law, Lewis and Clark College (1980); member of the Oregon State Bar since 1980; sole practitioner, Portland.

I. MARRIAGE

A. Nature of Marriage

1. (§2.1) Civil Contract 2. (§2.2) Status

3. (§2.3) Personal Fundamental Right 4. (§2.4) Ways to Attack a Marriage

5. (§2.5) Presumption of Validity of Marriage 6. (§2.6) Burden of Proof B. Statutory Requirements 1. (§2.7) Age 2. (§2.8) In Person 3. Sex of Parties a. (§2.9) Same Sex b. (§2.10) Sex Reassignment 4. (§2.11) Capacity a. (§2.12) Mental Incapacity b. (§2.13) Physical Incapacity

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5. (§2.14) Relationship by Blood or Adoption a. (§2.15) Contrast to Incest Statute b. (§2.16) Adoption

6. (§2.17) Marriage License 7. (§2.18) Waiting Period

8. (§2.19) Who May Perform Marriages 9. (§2.20) Form of Ceremony

10. (§2.21) Race C. Common-Law Marriage

1. (§2.22) Oregon

2. (§2.23) Valid Elsewhere

3. (§2.24) Limited Statutory Authority D. Conflict of Laws Governing Formation

1. (§2.25) Within the United States 2. (§2.26) International

II. ANNULMENT A. Generally

1. (§2.27) Residency Requirements 2. (§2.28) Waiting Period

3. (§2.29) Effective Date of Judgment 4. (§2.30) Provisions of Judgment B. Void Marriage 1. (§2.31) Grounds 2. (§2.32) Standing to Challenge 3. (§2.33) Date Effective 4. (§2.34) Bigamy C. Voidable Marriage 1. (§2.35) Grounds 2. (§2.36) Standing to Challenge 3. (§2.37) Date Effective 4. (§2.38) Defenses III. (§2.39) SEPARATION A. Legal Separation 1. (§2.40) Definition 2. (§2.41) When Appropriate

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3. Statutory Requirements

a. (§2.42) Parties Must Be Married b. (§2.43) Jurisdiction of the Cause c. (§2.44) Venue

d. (§2.45) Jurisdiction of the Parties e. (§2.46) Grounds

f. (§2.47) Duration of Separation g. (§2.48) No Waiting Period

h. (§2.49) Provisions Similar to Dissolution 4. (§2.50) Support

5. (§2.51) Findings of Fact 6. Amendments to Petition

a. (§2.52) When Allowed b. (§2.53) Grounds

7. (§2.54) Not a Bar to Dissolution 8. (§2.55) Separation Agreements

9. (§2.56) Modification or Vacation of Judgment 10. (§2.57) Creditors’ Rights

11. (§2.58) Property Rights B. (§2.59) Abandonment

FORMS

2-1 Petition for Annulment of Marriage

2-2 Stipulated Judgment of Annulment of Marriage 2-3 Petition for Unlimited Separation

2-4 Judgment of Unlimited Separation 2-5 Stipulated Order to Amend Petition

2-6 Motion to Allow Supplemental Proceedings and Order to Appear

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§2.1 / Marriage; Annulment; Separation

I. MARRIAGE A. Nature of Marriage

1. (§2.1) Civil Contract

Marriage is a “civil contract.” ORS 106.010. It is founded on the agreement of the parties and does not require religious solemnization for its validity. Unlike an ordinary contract, a civil contract cannot be modified by the parties. The parties may choose to enter into the contract, but marriage includes the imposition of certain rights and duties imposed on the parties by the state. Maynard v. Hill, 125 US 190, 211, 8 S Ct 723, 31 L Ed 654 (1888). There are three parties to the contract: man, woman, and the state.

2. (§2.2) Status

Marriage is not a property interest of the parties; it is a personal relationship subject to the state’s power to fix the conditions under which it may be created or terminated. Buchholz v. Buchholz, 248 NW2d 21, 23 (Neb 1976) (wife had no vested property right in her marriage but, even if she did, state has inherent “police power” to interfere with that right).

3. (§2.3) Personal Fundamental Right

Marriage is a personal fundamental right retained by the people under the Ninth Amendment and protected by due process First Amendment rights to privacy and association and by the Fourteenth Amendment from infringement by the states. Griswold v. Connecticut,

381 US 479, 485, 85 S Ct 1678, 14 L Ed2d 510 (1965) (conviction of persons sentenced for giving information, instruction, and medical advice to married persons regarding contraception was reversed under the First Amendment “penumbra” of privacy and rights of association, including “rights to marital privacy and to marry and raise a family”);

Loving v. Virginia, 388 US 1, 12, 87 S Ct 1817, 18 L Ed2d 1010 (1967) (overturning sentence of black woman and white man who were married in Washington, D.C., and who then moved to Virginia, which banned interracial marriages); Zablocki v. Redhail, 434 US 374, 384, 98 S Ct 673, 54 L Ed2d 618 (1978) (holding unconstitutional a Wisconsin statute that required person to obtain court permission to marry, within Wisconsin or elsewhere, if person was a Wisconsin resident having minor child not in his or her custody and which he or she was under obligation to support).

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Marriage; Annulment; Separation / §2.5

4. (§2.4) Ways to Attack a Marriage

A marriage can be attacked directly, on the res of the marriage status, for example, by annulment or dissolution.

A marriage may also be attacked indirectly, when the ultimate issue is other than the marriage itself, for example, eligibility for Social Security under “spouse’s” benefits, probate (including personal representative and heirship), workers’ compensation, real estate, personal injury and wrongful death, victim’s restitution, invocation of marital privilege against spouse’s testimony, and guardianship and conservatorship. See Crittenden v. Hanna, 29 Or App 189, 562 P2d 609 (1977) (although respondent apparently was not legally married to decedent under Washington law, marriage not in compliance with Washington law is voidable rather than void and cannot be collaterally attacked after death of either party); Werden v. Thorpe, 126 Or App 97, 103, 867 P2d 557 (1994) (testator’s son could not collaterally attack in probate proceeding validity of testator’s Mexican marriage; at most, marriage was voidable, not void, and testator’s death terminated marriage).

5. (§2.5) Presumption of Validity of Marriage

There is a strong presumption of the validity of any marriage that has been solemnized in good faith. In re Estate of Megginson, 21 Or 387, 394–395, 28 P 388 (1891) (decedent married Indian woman in ceremony performed by U.S. agent in charge of reservation; marriage was valid despite fact that it was not performed by “minister of the gospel” as required by statute); Smith v. Smith, 169 Or 650, 652, 131 P2d 447 (1942) (plaintiffs contended that their father’s second marriage was invalid because, allegedly, defendant was married to previous husband when she married decedent; marriage held valid because there was no proof that defendant’s former husband was still alive when defendant and decedent married); Franklin v. Biggs, 14 Or App 450, 458, 513 P2d 1216 (1973) (evidence did not support court’s finding that mother was not married to father of twins who were being adopted; because that requirement is jurisdictional, court was without jurisdiction to proceed with adoption). The burden of proof is on the party questioning the marriage. Ollschlager’s Estate v. Widmer, 55 Or 145, 149, 105 P 717 (1909) (legality of marriage is determined by laws of state in which ceremony was performed; in Pennsylvania, absence of license does not invalidate marriage, so there is strong presumption in

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§2.6 / Marriage; Annulment; Separation

seven years is dead, OEC 311(s); a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage, OEC 311(u); a thing proved to exist continues as long as is usual with things of that nature, OEC 311(w); and the law has been obeyed, OEC 311(x).

The presumption that the latest of successive marriages is valid is a stronger presumption than the presumption of continuity. A marriage that is consummated according to Indian tribal custom is valid if at least one of the parties is an Indian. McBean v. McBean, 37 Or 195, 203, 61 P 418 (1900) (decedent’s marriage to Indian woman was not valid because relationship was entirely in bad faith from the beginning; hence, no presumption of lawful marriage could arise).