The Pitfalls of a Putative Marriage and The Call for a Putative Divorce

• Author: Monica Hof Wallace
• Position: Assistant Professor of Law at Loyola University School of Law
• Pages: 72-118

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Monica Hof Wallace is an Assistant Professor of Law at Loyola University School of Law, New Orleans. Professor Wallace teaches in the areas of Louisiana successions, donations and family law. The author would like to thank Professors Kathryn V. Lorio, Dian Tooley, and Mary G. Algero of Loyola University School of Law, as well as Michael McAuley and Robert A. Pascal of the Paul M. Hebert Law Center for their guidance, support, and invaluable comments on drafts of this article. She would also like to thank Heather Gattuso Lambert for her tireless efforts in compiling the research for this article and assisting in its completion.

I Introduction

Is not marriage an open question, when it is alleged, from the beginning of the world, that such as are in the institution wish to get out, and such as are out wish to get in?¹ From the beginning of time, the institution of marriage has been the recipient of considerable philosophy, legislation and, of course, humor. This article will consider the legislation, jurisprudence, and doctrine surrounding a putative marriage and will philosophize about its shortfalls, with the hope that Louisiana will adopt a solution to remedy the inequities present under the current interpretation and application of the law.

According to secular positive law, marriage is a civil contract entered into by a man and a woman pursuant to the laws of the state in which they marry.² Concomitant with the civil contract are civil effects-;the rights and privileges-;that both parties enjoy during the union: legitimate children, the right to support from one's spouse (both during and after the marriage), the right of one spouse to sue for the other's wrongful death and the right to the marital portion, to name a few.³ Any valid marriage will produce civil effects in favor of both parties as a matter of law.⁴ By the general rule, parties who Page 73 do not enter into a valid marriage create no civil contract and therefore are afforded no rights and duties of that marriage.⁵

The putative marriage rule⁶ provides the proverbial bridge to civil effects in the event parties fail in their attempt to contract a valid marriage, believing in good faith they had done so.⁷ The putative marriage rule has been described as "ameliorative or corrective," designed to give innocent spouses to a legally null marriage the civil effects to which parties in a valid marriage enjoy.⁸ In other words, if one or both of the parties celebrate a marriage, believing it to be properly contracted in form and in substance, but some legal impediment plagues its validity, the putative marriage rule would allow the good faith party or parties to the marriage to enjoy the civil effects of valid marriage, notwithstanding its invalidity.⁹

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What are the civil effects that putative spouses may receive? Although states that recognize the rule disagree on the breadth of effects that a putative spouse can receive, spouses can be granted the legitimacy of the children of the marriage,¹⁰ the right to alimony,¹¹the right to claim workman's compensation benefits,¹² the right to a share of the community property,¹³ the right to inherit as a spouse in the succession,¹⁴ the right to insurance proceeds as a widow,¹⁵ and Page 75 the right to sue for the wrongful death of the other spouse.¹⁶ The putative marriage rule has particular application in community property states, because one of the civil effects of marriage is the right to one-half of the property acquired during the marriage.¹⁷ This article will focus on the extent to which this right is afforded putative spouses and, in some cases, their children.¹⁸

To explain, let me introduce you to Clementine Prince. Clementine Prince fell in love with James Brough.¹⁹ Clementine and James decided to marry and therefore obtained a marriage license and expressed their consent to wed in a ceremony. They lived together as husband and wife one day shy of twenty-one years, when James died. Almost fifteen years after his death, Clementine sought to borrow money on a piece of property purchased during their marriage. At the time of the sale, the property was purchased in her name, as wife of James Brough, although a declaration that it was her separate property was not included.²⁰ In attempting to determine her right to alienate the property, Clementine discovered that she Page 76 was not legally married to James-;a woman by the name of Victoria Albert was his legal wife.

Victoria Albert had been married to James Brough before he met Clementine. Victoria and James had been married for five years when they separated. Seven years later, James filed for divorce and a preliminary default judgment was entered in the case. A final judgment of divorce, however, was never obtained. Believing themselves to be divorced, James later married Clementine and Victoria married Elijah. Because Clementine's marriage to James was legally invalid (and Victoria's marriage was legally valid), Victoria asserted rights to the property that Clementine sought to alienate. Victoria insisted that as James's legal wife, she was entitled to one-half of the community property acquired during the marriage, which did not end until his death.

Does Victoria have an absolute right to her one-half share of the property as James's legal wife? Does Clementine have any right to the property as the named purchaser of the property or the putative spouse of James? Are the rights affected if James or Victoria or Clementine or more than one of the parties is in bad faith? Do the rights change if children from either marriage exist?

Some, but not all, of these questions can be answered using the putative marriage rules. In Louisiana, the rules governing putative marriage have developed legislatively and jurisprudentially, albeit at times in misled directions. This article will begin, in Part II, with the history of putative marriage, from the English law, the Spanish civil law, and the French civil law. After an historical perspective, Part III of this article will present the path of Louisiana law. The cases of Patton v. Cities of Philadelphia and New Orleans²¹ and Prince v. Hopson²² will be examined and at times criticized for the inequitable treatment given to the innocent, putative spouse and children of the putative marriage. After a discussion of the current state of the law in Louisiana, Part IV will consider the law of other states to give context and to offer possible solutions to Louisiana's treatment of a putative marriage. Finally, to cure the current pitfalls present in the law, in Part V the author will advocate the enactment of a "putative divorce," with the hope that it can be implemented by the legislature or through judicial ingenuity if the case arises. Recognizing a putative divorce will not only complement putative marriage but will provide fairness and equality among the spouses and the children affected by the division of property present under the law today.

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II The History Of Putative Marriage

The recognition of putative marriage crosses both civil and common law lines. Although generally believed to have its roots in the civilian traditions, putative marriage has been traced to early English law as well.²³ As discussed in more detail below, protecting a child's legitimacy when born of an invalid marriage spawned the protection of spouses entering into an invalid marriage.

A English Law

Putative marriages had been recognized as early as the twelfth century in canon law.²⁴ During the twelfth, thirteenth and fourteenth centuries, the law of England relied on the canon law and recognized that even though a marriage could be declared null based on a prior undissolved marriage or consanguinity (marriage of blood relations), some civil effects of that marriage would flow to the spouses in good faith and their children.²⁵ Specifically, scholars of the English law explained that if a woman in good faith married a man who was already married, any children from him would be legitimate and capable of inheriting from both parents.²⁶ Outside of the legitimacy of children, however, the English law did not focus on any other civil effects, but recognized the need for some equitable complement to marriage when the parties, albeit in good faith, entered into a legally invalid marriage. This rule, however, was abandoned in later English history.²⁷

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B Spanish Civil Law

Putative marriage was introduced in the Spanish system in Las Siete Partidas, during the late thirteenth century. Initially, the rule was not termed "putative marriage," but was inferred from a provision that deemed children born to good faith parties of an invalid marriage to be legitimate children.²⁸ If only one of the spouses was in good faith at the time of the child's birth, the child would remain legitimate, but...