October 9 2012 Changing Relationship of Husbands and Wives Husbands and Wives At common low marriage has significant legal consequences for a married woman legal disability An unmarried woman had full legal capacity except the right to vote But a married woman was deprived of her property and even her legal identity For giving up everything to her husband she was promised support for life Under common law 1 1 1 the husband Family law is slow to modernize The Fiction of Oneness Family Names At marriage the 2 people became one the wife s rights merged to her husband The 1 was the husband in matters like control of property legal decision making Ex Husband gets all of woman s earnings fi she worked outside of home Husband and wife cannot contract with each other Married woman took their husband s last names 1 Wife s name Stuart v Board of Supervisors 1972 Habit confused with legal requirement Social tradition wife takes husband s surname at time of marriage Woman not able to vote because she didn t take her husband s name A woman doesn t have to take her husband s last name by law It was just a custom Social tradition but not a legal requirement 2 Kid s names Henne v Wright Do parents have the right to give their kids a last name Woman wants to give her 3rd child a matching last name that has nothing to do with her name or the father s 1 Married woman wants to name child after boyfriend 2 Woman wants to name child after other 2 children McKenzie The two earlier children were born in CA who didn t care When she moved to Nebraska they made her change the name to her s There s no constitutional right to name children But what about freedom of speech first amendment Financial Matters Economic Relations between Spouses The Doctrine of Necessities At Common Law the husband was give the wide s interests in all real estate including rents In exchange for the wife giving up everything to the husband at marriage the husband would provide support meaning he would provide her with all the necessities of life What is a necessity McGuire v McGuire 1953 Man gave wife what she needed even a plot of land to grow and sell veggies When they were older they stopped cohabitating Want running water and no outhouse They needed a new car She isn t happy with what they have but the husband has plenty of money but won t spend it Goes to court and asks for necessities running water car new clothes The court says they aren t interfering with intact relationships She s lived this way for so long so she must be doing well He is providing necessities Court is encouraging her to have a divorce She lost all legal rights and courts wouldn t help her out One judge does not agree but acknowledges that the husband is providing the basic necessities Did her husband provide sufficient necessities Yes the court won t get involved State v Clark Was 1977 Do necessities include paying a lawyer in modern times Is a husband obligated to pay for his wife s criminal defense attorney Before their marriage wife was charged with drug possession and represented by free lawyer public defender because she was indigent After she is convicted she still wants to use the free lawyer for the appeal but her noe husband has money and can afford to pay for a lawyer for her Yes Wife is no longer indigent because of the marriage necessities include providing a lawyer for your wife even when the appeal relates to a pre nuptial crime Marital Privilege Evidentiary testimonial privilege that prevents a wife from testifying against her husband Common Law Testimonial privilege 2 forms 1 Competency spouse disqualified Both criminal and civil cases 2 Privacy of marital communications special privilege D could assert to prevent spouse from testifying to any confidential communication between the husband and wife Modern Rule Majority say a spouse is competent to testify against a spouse in civil proceeding Most allow to the spouse to testify for the defendant in criminal cases Issue Where a spouse wants to testify against another spouse Trammel v US 1980 Can a husband ban his wife s testimony against him in a criminal trial when wife is willing to testify Man and woman are validly married Man woman and 2 others charged with importing heroin Prosecutor wants to call woman to testify against husband but husbands asserts marital privilege Integrity of marriage But woman willing to testify because government offered her immunity A husband can not stop a wife from testifying against him if she wants to Woman s willingness to testify in criminal proceeding demonstrates marriage is in disrepair Since the purpose of privilege is to keep the marriage intact and that is now gone no reason to prevent testimony Trammel v US Helps us see marriage as 2 individuals Communications between the two were made in the presence of third parties If the confidential communications were made only between the two she probably wouldn t have been allowed to give her testimony What is the effect on same sex marriages Should the testimonial privilege be extended to same sex marriages Domestic Violence At common law a wife was the property chattel of husband and he could treat her brutally like his other property like animals Common Law right of husband of moderate chastisement of wife Wife couldn t sue her husband for the assault and battery Still a major problem in the US Affects heterosexual and gay couples as well as other segments of society like children States have adopted the Violence Against Women Act 1994 to foster education Spouse Abuse Protective Orders St v Williams v Marsh Are protective orders unconstitutional violations of due process Man are wife validly married but living separately Woman wants protective order against husband former golden gloves boxes who willfully beat her causing hospitalization Temporary PO granted without husband present TPR 1 bars husband from home 2 Gives woman temporary custody of kids 3 Requires child support PO under state s Adult Abuse Act Husband argues that states law is unconstitutional and deprives him of due process No The constitution s due process is a flexible concept need to balance private interest against public interest and the risk of erroneous decisions Final hearing will be held in a reasonable amount of time Is there such a thing as Marital Rape Can a man rape his wife Warren v GA Validly married Woman refuses to have sex with husband Husband forces her too and she calls the cops for rape The occurrence of marriage gives