§ 5.3 Marriage

• Library: Rights of Foreign Nationals (OSBar) (2020 Ed.)

§ 5.3 MARRIAGE

§ 5.3-1 Applicable Law

When considering marriage or dissolution of marriage as it relates to a foreign national, the question naturally arises of which law will be applied—the law of that person's nationality, the local-forum law, or some other law?

Conflict of laws, the term employed in common-law systems, or private international law in civil-law systems, is a body of theory and practice that sets forth rules for the appropriate law to be used in lawsuits involving an element of the law of a foreign country.

In Oregon, a common-law legal system, conflict of laws deals with the court's jurisdiction to adjudicate domestic-relations issues and its jurisdiction over persons and property. Often it falls to the attorneys and to the court to determine which of the competing states' or countries' laws are to be applied.

If the parties are domiciled in Oregon, then Oregon law is applied. If property is located outside of Oregon, in any dissolution action it will be divided according to Oregon law. The Oregon court has jurisdiction over "the real or personal property, or both, of either or both of the parties." ORS 107.105(1)(f). However, the law where the property is located will be a key factor in how the property is actually divided.

If the parties have a valid prenuptial agreement, it may contain a choice-of-law clause, and that may govern the division of property in a dissolution. See ORS 108.700-108.740 (Uniform Premarital Agreement Act).

§ 5.3-2 Nature of Legal Marriage

The marriage tradition in the United States is one of contract on the private side and legislative prerogative on the public side. The parties do not set all the terms of the contract, but the manner in which consent and union are reached are unique to the marital partners. State legislatures grant access to the legal institution of marriage. See generally Nancy F. Cott, Public Vows: A History of Marriage and the Nation (revised ed, Harvard University Press 2002); see also ORS 106.010 (defining marriage as a "civil contract").

§ 5.3-2(a) Right to Marry: Federal and State Legislation

The federal government does not set the conditions of marriage, a right that is reserved to the states, but it can and does set conditions for recognition of marriage.

The terms marriage and spouse are defined in 1 USC § 7:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.

This provision, however, has essentially been overruled because same-sex marriage has been recognized by the United States Supreme Court in two important cases: United States v. Windsor, 570 US 744, 133 S Ct 2675, 186 L Ed 2d 808 (2013), and Obergefell v. Hodges, 576 US 644, 135 S Ct 2584, 192 L Ed 2d 609 (2015).

In Windsor, the Court ruled that section three of the Defense of Marriage Act (DOMA), Pub L 104-199, 110 Stat 2419 (1996) was unconstitutional because it in effect created contradictory marriage regimes in the various states. The Court went on to hold that the federal government cannot discriminate against married lesbian and gay couples for the purposes of determining federal benefits and protections because such actions violate the Due Process Clause of the Fifth Amendment. Windsor, 570 US at 774. In Obergefell, the Court went much further, striking down state laws banning or not recognizing same-sex marriages. It held that "the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that right and that liberty." Obergefell, ⁵76 US at 675.

§ 5.3-2(b) Marriage and Family in Federal and State Courts

Legal actions affecting marriage and family are strictly a matter of state law, except when the law impinges on an individual's Constitutional rights. See, e.g., Obergefell v. Hodges, 576 US 644, 135 S Ct 2584, 192 L Ed 2d 609 (2015); United States v. Windsor 570 US 744, 133 S Ct 2675, 186 L Ed 2d 808 (2013); see also § 5.3-2(a) (right to marry).

Insofar as marriage is within temporal control, the States lay on the guiding hand. "The whole subject of the domestic relations of husband and wife, parent and child, belongs to

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