Transcript Gay Marriage - Lake Oswego High School: Home Page

Family Law

Engagement Ring Disputes
 Marriage
 Child custody
Do you have to give the ring
back?
Traditional Gift Law
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Gift: irrevocable if the donor intended a
gift, the donor delivered the gift, and the
donee accepted, taking dominion and
control over the gift
Conditional Gift: gift will however be
revocable upon a finding that there was
an express or implied condition, and that
condition did not occur.
Express Condition
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“Will you Marry me? If you do I will give
you this ring.”
Is there an implied condition?
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Yes – condition is engagement
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Yes – condition is marriage
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No
When deciding who gets to
keep the engagement ring,
courts also do not agree on
whether it should matter who
did the breaking up or why
Fault Based Approach:
Courts That Do Consider the
Reasons for the Breakup

The majority of courts follow this approach
 Rationale 1: Some courts use the fault based approach because it is
fair to take away a ring from a party who has wronged the other. In
one case guy proposes, asks for ring back, proposes again and then
again asks for ring back. She refuses and he goes over to her house
while she is asleep and beets her until he has the ring back.
 Rationale 2: Some courts applying a fault-based rule consider the
exchange of the ring to be more like a contract than a conditional gift:
The ring is just a symbol of the agreement to marry. If that agreement
is not performed, then those involved should be restored to their former
positions and the ring should be returned to the person who first had it.
But if the donor backs out, the donee should keep the ring, because a
person who breaches contracts should not be rewarded for doing so.
Spinnell v. Quigley, 785 P.2d 1149 (1990).
No-Fault Approach:
Courts That Don't Consider the
Reasons for the Breakup
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The Modern trend:
 Rationale 1: The whole matter of who broke up with whom isn't any of
their business. If the wedding's off, they say, the donor should get the
ring back, regardless of why, where, when, or at whose behest the
engagement ended. After all, they reason, no-fault divorce makes it
possible for marriages to end without bitter court fights over whose
fault it was; engagements should be treated the same way. Supreme
Court of Pennsylvania -the donor should always get the ring back if the
engagement is broken off, regardless of who broke it off or why. Lindh
v. Surman, 742 A.2d 643 (Pa. 1999).
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Iowa, Kansas, New Jersey, New Mexico, New York, and Wisconsin have the same rule.
Rationale 2: the difficulties of implementing a fault-based approach:
[S]hould courts be asked to determine which of the following grounds
for breaking an engagement is fault or justified?
How would the courts determine fault
when. . .
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(1) The parties have nothing in common;
(2) one party cannot stand prospective in-laws;
(3) a minor child of one of the parties is hostile to and will not accept the
other party;
(4) an adult child of one of the parties will not accept the other party;
(5) the parties' pets do not get along;
(6) a party was too hasty in proposing or accepting the proposal;
(7) the engagement was a rebound situation which is now regretted;
(8) one party has untidy habits that irritate the other; or (9) the parties
have religious differences.
Heiman v. Parrish, 942 P.2d 631, 637 (Kan. 1997).
Hypo/You be the judge. . .
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Is it a conditional Gift or an unconditional
Gift?
If you say it is a conditional gift what is
the condition that must be satisfied before
the ring is hers?
Would you adopt the fault based approach
or a no-fault approach
Marriage

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Procedural requirements
Substantive requirements
Procedural requirements
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Consent by both parties
Solemnization (the wedding) and licensing
Substantive Requirements
Race
Age
Sex
Familial Ties
•
Race: Loving v. Virginia
(1967)
THE CASE:
– Mildred Jeter (a woman of African and Rappahannock Indian descent) and Richard
Perry Loving (a white man), were married in June of 1958 in the District of Columbia.
Together they left their home state of Virginia to evade the Racial Integrity Act, a law
banning marriages between inter-racial couples. When they returned to Virginia, they
were charged with violation of this ban.
Requisite Age in Oregon
• You must be 18 years old to get married without a
parent's permission.
• You can get married at age 17 if:
– 1) you have written permission from a parent or guardian, or
– 2) neither of your parents lives in Oregon and you have lived
here for six months in the county where you are applying for the
marriage license.
• You cannot get married if you are under 17, even if you
have a child or have a court order emancipating you
(declaring you an adult for certain purposes).
Sex:
1.
2.
The Defense of Marriage Act of 1996
it provides that no State shall be
required to give effect to a law of
any other State with respect to a
same-sex “marriage."
it defines the words “marriage”
and “spouse” for the purpose of
Federal law.
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Marriage= the legal union of a
man and a woman as husband
and wife,
Spouse= a husband or wife of
the opposite sex.
Familial Ties
• What is the rationale behind not allowing
family members to marry each other
• Should you be able to marry your 1st
cousin? 2nd cousin?
• What if your cousin was adopted?
• What should be the result if you do?
Custody Disputes: Biological
Parent v. Non-Biological Parent
Argument 1:
Sometimes a non-biological caregiver can be a
“psychological parent” and have the same rights
Argument 2:
States follow one of these three approaches:
1)Any fit parent gets custody
2) Rebuttable presumption that parent gets
custody
3) Whoever is in the child's best interest gets
custody
What Rule Does Oregon
Follow?
• Case Study
• Hypo