Family Law Fall 2005
Course Outline Prof. Carbone
I. Marriage and Its Alternatives
A. When are Adult Partners a Family? (Chapter 1)
1. 4 main legal questions/debates
a) Should the law make distinctions among people based on their
family status at all?
b) When family membership matters, how should it be determined?
By blood relationships or legal ceremony or by function?
c) If a family is defined by function, what kinds of behavior indicated
that people belong to a family?
d) What are the roles of the legislature and judges in making these
determinations?
2. Hewitt v. Hewitt (1979 Illinois) [should the law make a bright line
between married and nonmarried cohabitors?]
a) Couple got pregnant during college and thereafter held
themselves out as married (she even took his name); they never
married but H promised to “share his life, his future, his earnings and
his property” with W; W’s claims for ½ property are unenforceable as
contravening public policy (potential of enhancing the attractiveness
of private arrangements); state Act also provides that common law
marriages are invalid
b) “The issue of unmarried cohabitants’ mutual property rights,
however, cannot be characterized solely in terms of contract law, nor
is it limited to considerations of equity or fairness as between the
parties to such relationships. There are major public policy questions
involved in determining whether, under what circumstances, and to
what extent it is desirable to accord some type of legal status to
claims arising from such relationships.”
3. Braschi v. Stahl Associates Company (1989 New York)
a) Two men lived together as “spouses,” in a rent-controlled
apartment, when one dies the other is evicted as not part of the
family; Court rules, based on a functional definition of a family, that
he is “family” and allows him to stay
(1) Court noted the length of the relationship, how they held
themselves out to the world, beneficiaries of life insurance,
sharing of finances, and exchanged in contract
(2) But, dissent says the plurality has expanded the definition of
family to a class that includes anyone who can say she or he
had an emotional and financial ‘commitment’ to the statutory
tenant
4. Zoning ordinance cases:
a) City of Ladue v. Horn (1986 Missouri)
(1) Ladue’s zoning ordinances No. 1175: certain zones were
designated as single family residential zones. “Family”= one or
more people related by blood, marriage or adoption, occupying
a dwelling unit as an individual housekeeping.
(2) The two adults were not married, but shared a common
bedroom, maintained a joint checking account for the
household expenses, ate their meals together, and disciplined
each other’s children.
(3) The adults argue that the zoning statute isn’t constitutional
because it violates their fundamental rights (there is a
fundamental right to marry, but is there a fundamental right to
a family?)
Updated 12.6.2005
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