In order to bring a claim for wrongful death of spouse in a civil action or for statutory benefits provided under Worker’s Compensation Law, the validity of a marriage will directly affect the standing of the party claimant. In general, parents are not liable in damages for the torts of their minor children based on the parent-child relationship; rather, such liability must be based on the doctrine of principal agent or master servant. A loss of parental power forfeits the parent’s right to share in a claim for the wrongful death of his or her child. Under wrongful death action children of the decedent who were born after decedent’s death are considered children in being at the decendent’s death provided 1) were conceived before decedent’s death 2) they were born within 10 months of the decedent’s death 3) they survived 120 hours or more after birth. The doctrine of interspousal immunity exists to preserve the sanctity of marriage and to prevent the possibility of collusive lawsuits. Generally, one spouse cannot maintain an action for tort against the other spouse, even though the tort was committed prior to the marriage, and this is true even after the divorce, separation or pending divorce of the parties. However, this doctrine may be abrogated where there is no marital harmony or unity to preserve and there is no possibility of collusion. This doctrine does not violate the due process or equal protection clauses. Where a married couple appeared pro se in a civil action against a third party, it was proper to forbid the husband who is not an attorney to act as attorney for his wife and this did not violate the sanctity of their marriage. A cause of action for fraud based upon misrepresentations about marital status is recognized in Georgia. Fraud will lie where 1) a person misrepresents his or her marital status 2) such person promises to marry the other party, and 3) the other party reasonably relies to his or her detriment. But where there is no misrepresentation of marital status, an action for fraud would not lie. On a related issue, where a minister is in a confidential relationship with his parishioner, justiciable issues would lie on a civil action for sexual seduction of the parishioner, and a loss of consortium claim of the husband. Brewer v. Paulk, 296 Ga. App. 26 (2009). Breach of promise to marry is a common law contract action. Requirements for a claim include 1) an actual promise to marry 2) an acceptance of that promise 3) a breach of the accepted promise. A defense to an action for breach of promise to marry is that the parties were in a meretricious relationship i.e., unmarried and living together in a sexual relationship; but this defense is inapplicable where the object of the contract is not illegal nor against public policy, and the illegality or immorality is only collateral to the contract. Accordingly, since marriage is favored by Georgia public policy, the fact that the parties were living together both before and after the marriage proposal was only collateral to the promise to marry, and the meretricious relationship defense is inapplicable and the promise to marry unenforceable.Contact a Paulding County divorce lawyer today.
Monday, August 22, 2016
Sunday, August 21, 2016
If a purported marriage is invalid and there are no children born or to be born, the general rule is that there can be no action for divorce or alimony by either party. Likewise, where there is a void marriage, Georgia law does not require the payment of alimony unless related to the protection of the children of the marriage. Wright v. Hall 292 Ga. 457 2013. This is true even though the purported marriage is of long duration and is initiated in good faith and even if the parties have no knowledge of the impediment. In fact, if a final decree of divorce has been entered with respect to an invalid marriage, the decree may be set aside as void. Any property settlement contract with consideration founded on the invalid marriage may be set aside by the party not having knowledge of the invalidity. Where a divorce decree provides for periodic alimony until the remarriage of a spouse, that spouses later ceremonial marriage will stop the alimony payments from the first spouse, even though the second marriage is void because the second spouse has a living spouse. The rationale for this result is that the attempted ceremonial marriage could ripen into a valid marriage upon removal of the impediment. A will which is not made in contemplation of marriage or the birth or adoption of a child is automatically revoked upon the happening of such event. However, if the marriage not contemplated is invalid, the will is not automatically revoked. However, the birth of a child as the issue of a purported but invalid marriage could, under the reasoning of the Wallace case, validate the marriage and thereby revoke the will. Obviously, the validity of a marriage will determine the rights of inheritance by a party claiming to be an heir at law as a surviving spouse, the right to year’s support as a surviving spouse, or the right of an alleged spouse to serve as administrator. Here again, the children of an invalid marriage would be legitimate for purposes of inheritance and right to year’s support. A child born out of wedlock may inherit from or through the child’s father, the other children of the father, or any paternal kin by reason of the paternal kinship if 1) by Court order the child is declared legitimate 2) paternity has been established by court order 3) a sworn statement by the father attests to the parent-child relationship 4) the child’s birth certificate has been signed by the father or 5) the presumption of paternity has been established by genetic testing and not rebutted by clear and convincing evidence. Contact a Paulding county family law lawyer to handle your divorce or legitimization case.