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January 2015 Archives

Non-Marital Families

The courts may recognize certain rights in relationships other than marriage. Palimony is the term for legal property and support rights arising from co-habitation. Co-habitation is not necessarily required for a palimony claim so long as there is a marital-like relationship. The default rule is that title controls ownership in the absence of a written document stating otherwise. However, the courts may recognize certain equitable doctrines to achieve fairness even if strict adherence to the written document would produce a different result. One cause of action is a constructive trust through the theory of unjust enrichment. The crux of the theory is that it would be unfair to allow the person that doesn't have title to be excluded from the wealth they helped create.

Putative Spouse Doctrine

The putative spouse doctrine provides an equitable remedy where one or both spouses believed in good faith they were married and subsequently discovered the marriage wasn't valid. The spouse that is unaware of any impediment to the marriage is the putative spouse. The equitable remedy provided more or less mirrors the relief that would be available if the parties were divorcing from a valid marriage. The purpose of the doctrine is to protect those who have an honest belief that they are married from being denied the economic and/or status related benefits of marriage including potential property division and support. 

Affidavit of Consent

Under Section 3301(c) of the Divorce Code, one way to obtain a no-fault divorce is by mutual consent of the parties ninety (90) days after filing and service of the divorce complaint. This is often the quicker option for a no-fault divorce however it is contingent on both parties signing the consent. Case law provides that a party cannot be forced to consent. This is true even if the party previously entered an agreement indicating they would timely consent to the divorce. The court has stated "[a] person has an unqualified right to change his or her mind and refuse to consent to be divorced, at least, as here, where the consent, though signed, has not been delivered or filed." Berman v. Berman, 33 Pa. D. & C.3d 134 (1983). This position supports the Divorce Code policy of preservation of marriages wherever possible. 

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