Recognizing Error and Fraud in the Contract of Marriage in Louisiana
| Author | Emily Latham |
| Pages | 563-604 |
Page 563
As evidenced by the heated debates over the recognition of same-sex unions,1 as well as by the slew of reality television shows devoted to the topic, marriage remains a fundamental establishment in society. While it has been observed that "marriage is a divine institution, which, when validly contracted, is indissoluble except by death,"2 allowance must be made for the termination of a marriage not "validly contracted." Though divorce has become as commonplace as marriage,3 less popular remedies, such as annulment, should be more often considered and utilized. As some scholars have noted, "there can be little doubt but that annulment, properly understood and properly applied, is a legitimate and moral method of ending a marital relationship."4 In Louisiana, annulments should be recognized by the law as an available option for spouses wishing to terminate their marriage under specific instances of error and fraud.
Though divorce was once more legally advantageous than annulment,5 in 1994, the legislature recognized the need to statutorily provide the same relief to petitioners in either proceeding.6 As in a divorce, both interim7 and final incidentalPage 564 relief8-such as final periodic spousal support,9 child custody,10 and child support11-may be available to the party in an annulment.12
As such, the prior legal advantages to seeking a divorce, as opposed to an annulment, have been eliminated.
In addition, an annulment may provide greater emotional benefits than a divorce. Espousing the emotional advantages of an annulment for the parties involved, one commentator noted:
The social stigma attached to divorce may constitute a significant burden to some. Those who dissolve a short but unpleasant relationship may feel significantly better if the legal procedure used reinforces their denial that any significant bond ever existed with the ex-partner. Moreover,Page 565 although a civil annulment may not satisfy Catholic canon law, it may be preferable to some Catholics, because it is theoretically more consistent with the religious remedy than is divorce.13
After providing a brief overview of the requisite marital consent in Part II of this paper, consideration is given to the connection between annulments and three timely issues in Louisiana: same-sex marriage, covenant marriage, and divorce. Part III addresses the historical background of the marital vices of consent in Louisiana. Following recognition of the special nature of the marriage contract, the present elimination of error and fraud from this contract is established. Particularly, the seminal cases that established the narrow interpretation of the vices and led to their removal are discussed. By analyzing the approaches used in the context of general contract law, as well as the approaches of other states to the vices of marital consent, Part IV proposes the reintroduction of fraud and error in Louisiana as sufficient to nullify a marriage contract. Finally, Part V surmises the positive effects of recognition of the three vices of consent in the marriage contract in Louisiana. In sum, the legislature must re-institute the vices of fraud and error as sufficient to nullify a marriage so as to provide the citizens of Louisiana with an alternative method for dissolving a marriage-annulment.
To fully understand the shortcomings of Louisiana's approach to marriage annulments, consideration must be made of the discrepancies inherent in the state's present article on marital vices of consent. The approaches used by other jurisdictions, as well as Louisiana's stance on several contemporary social issues, are at variance with the state's limited recognition of the marital vices of consent.
In establishing a "validly contracted" marriage, free consent is an essential requirement. Presently, Louisiana Civil Code article 87 requires that the contract of marriage include the "free consent of the parties to take each other as husband and wife, expressed at the ceremony."14 By including this as one of only three mandatory elements in all marriages, the state indicates the great importance that it places upon consent.15
Nevertheless, this crucial "free consent" is susceptible of vitiation. Within the context of general contract laws, three classic, consensual vices-error, fraud, and duress-are explicitly recognized.16 In the Louisiana Civil Code of 1870, each of these vices was also expressly recognized as applicable to the contract of marriage.17 Presently, however, only duress is enumerated in the Civil Code as a vice of consent sufficient to vitiate a marriage contract.18 Notably, the Louisiana Legislature's elimination of error and fraud did not operate to align our state's policy with that of our sister states' policies; instead, nearly every other state recognizes at least two of the three vices explicitly and, in some instances, a variance of the third.19 Neither did this action conform our law to that of other civil law jurisdictions, as nearly every civilian jurisdiction expressly enumerates at least two of the three vices in itsPage 567 codal articles.20 Is Louisiana on the cutting-edge, or is it frustrating the availability of annulments for its citizens? This author believes it is the latter.Page 568
Louisiana's present exclusion of fraud and error as vices sufficient to annul a marriage contract is at odds with several state policies.
First, as the recently successful amendment to the state constitution reveals,21 Louisiana is determined to ensure that same-sex unions will not be recognized as matrimonial relations. However, in our technologically and medically advanced society, sex change operations are possible and more prevalent than the average citizen may realize.22 Unions involving transsexuals may not seem like "traditional" same-sex marriages, but several courts have classified them as such, thereby foreclosing their legal recognition.23 However, because the issue remains open inPage 569 Louisiana,24 same-sex marriage proponents may use the possible validity of transsexual unions as grounds for their argument for marital rights.
Moreover, since "[c]ourt battles over the issue of birth certificate sex changing normally arise in the context of marriage,"25 it is important to note that Louisiana permits the issuance of new birth certificates to persons following an anatomical change of sex by surgery.26 If such a person petitions a court and provides sufficient proof of his change of sex, his birth record, as well as his name, may be altered to reflect the change.27 Because a certified copy of each party's birth certificate must be provided to obtain a marriage license,28 the newly-issued birth certificate would be used by the post-operative transsexual.29 Thus, it seems possible that a partyPage 570 may enter into what he considers to be a valid marriage, though he is unaware of his spouse's prior gender and subsequent change of birth records and name.30 But, because Louisiana does not recognize error or fraud as legitimate grounds for annulment of a marriage, the mistaken or defrauded party in such a scenario could not have the marriage annulled for mistake regarding the physical identity of the person.31 Instead, he would have to resort to divorce laws to end the marriage, which would preserve the validity of their union.
Second, Louisiana has exemplified its belief that marriage is a sacred, life-long commitment through its adoption of covenant marriage laws.32 Enacted in 1997, the Covenant Marriage Act permits couples to enter into a covenant marriage only after engaging in pre-marital counseling, signing a declaration of intent, and agreeing to attend pre-divorce counseling, if necessary.33 Thus, higher standards are in place for both entry into and dissolution of aPage 571 covenant marriage. As proponents have noted, "Covenant marriage legislation, hopefully, is only the beginning of the resurgence of interest in and protection of the institution of marriage-the foundation upon which the 'family' is built."34 However, a solid foundation for a marriage is not likely if it is based upon...
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