Article by Christopher L. Blakesley
The classic putative marriage doctrine is substantive, ameliorative or corrective; it is designed to allow all the civil effects—rights, privileges, and benefits—which obtain in a legal marriage to flow to parties to a null marriage who had a good faith belief that their ‘marriage’ was legal and valid. Most jurisdictions in the United States have developed equitable analogues to the putative spouse doctrine that provide all or part of the relief afforded by the classic doctrine.
If a marriage is declared to be null or void, that declaration is retroactive to the day that the null marriage was contracted. It could be said that the action in nullity does not produce a null marriage, but merely declares that the marriage has never existed. However, many jurisdictions only apply the relation-back doctrine when it will substantially fulfill justice and equity. Thus, generally, a marriage declared null produces no effects of marriage whatsoever. Unless some protective or corrective measure intercedes, the normal civil effects of marriage simply do not flow from a marriage which is null. Thus, for example, if the results are consistent with the concept of nullity, a minor party to the null marriage would not be emancipated; nor marital property regime would ever exist; all donations in contemplation of marriage should be null, as well as all donations in or since the marriage contract that were made to the party as spouse; children of the couple born during the null marriage would be illegitimate; children of the couple who would have been legitimated by the marriage have not been legitimated; neither ‘spouse’ has a right to workers' compensation or a wrongful death action through the other; and neither spouse would have a right to the marital portion of the other's estate.
The putative marriage doctrine is a device developed to ameliorate or correct the injustice which would occur if civil effects were not allowed to flow to a party to a null marriage who believes in good faith that he or she is validly married. A putative marriage, therefore, is a marriage which is in reality null, but which allows the civil effects of a valid marriage to flow to the party or parties who contracted it in good faith. It is a marriage which has been solemnized in proper form and celebrated in good faith by one or both parties, but which, by reason of some legal infirmity, is either void or voidable. The doctrine developed as a canon law palliative to protect those persons who went through a marriage ceremony in the good faith belief that the marriage was valid and proper, when it was actually null due to some impediment. It provides that, notwithstanding its nullity, the civil effects of a legal marriage flow to the parties who, in good faith, contract an invalid marriage.
The French scholar and jurist Marcel Planiol thus defined the putative marriage doctrine and described its purpose:
[It is] recognized that the null marriage, contracted in good faith, produces its effects, as if it had been valid until the judicial sentence declares it to be null. The sentence terminates the marriage, as would a divorce. The marriage henceforth produces no effect. But those it had produced subsist. . . . In other words, on account of the good faith of the parties, the nullity takes place without retroactivity. Such a marriage is called a putative marriage (putativus, deemed to be what it is not).
In 1978, a federal district court in Louisiana similarly defined the doctrine and expressed its purpose and underlying rationale:
A marriage contracted when one spouse is a party to a previously undissolved marriage is absolutely null; however, equity demands that innocent persons not be injured through an innocent relationship. Natural law and reason will protect innocent persons so long as they deserve or need the protection of the law. Once the need or the reason for a protection ceases to exist, natural law no longer should extend its shield.
The classic putative marriage doctrine derives from canon law and has no Roman source. It is generally considered to have developed solely in so-called ‘civilian’ or civil code jurisdictions (France and Spain, for example). However, in reality, the doctrine existed, at least with regard to the issue of legitimacy, in early English family law as well. There is therefore an historical basis for its adoption in common-law jurisdictions. During the twelfth, thirteenth, and fourteenth centuries, canon law and the law of the land in England held that some civil effects of a marriage obtained, even though a marriage was null due to impediments such as consanguinity or a preexistent valid marriage. If the parents of a child had entered into a marital union which was null for some reason, although solemnized with the rites of the church, and if, at the time of the child's conception, one or both of the parents had a good faith belief that there was no impediment to the marriage, the child was considered legitimate. Even though there was no legally valid marriage, at least that civil effect of a valid marriage flowed to the good faith party or parties and their children. Pollock and Maitland report Bracton's knowledge of this principle:
[He] wrote it down as an indubitable part of English law. In a passage which he borrowed from the canonist Tancred, he holds that there can be a putative marriage and legitimate off-spring even when the union is invalid owing to the existence of a previous marriage. ‘If a woman in good faith marries a man who is already married, believing him to be unmarried, and has children by him, such children will be adjudged legitimate and capable of inheriting.’
This is precisely what the classic putative marriage theory provides. Unfortunately, this ameliorative doctrine was lost in later English history.
Generally today, and historically in Spanish, French, and English canon law, the putative marriage doctrine only applies if some sort of attempt at a proper ceremony is undertaken by the parties and one or both ‘spouses' has a good faith belief that there is no impediment to the marriage. The putative marriage doctrine has been part of the family law of Louisiana from the beginning of western occupation and has been codified in the Louisiana Civil Code since 1808. Articles 117 and 118 of the Louisiana Civil Code have provided since that time:
Art. 117. The marriage, which has been declared null, produces nevertheless its civil effects as it relates to the parties and their children, if it has been contracted in good faith.
Art. 118. If only one of the parties acted in good faith, the marriage produces its civil effects only in his or her favor, and in favor of the children born of the marriage.
The French Civil Code more articulately presents the policy which motivates the application of the classic putative spouse doctrine and the equitable analogues which have been developed by states that have not formally adopted the doctrine. Articles 201 and 202 of the French Civil Code provide:
Article 201. The marriage which has been declared null nonetheless produces its effects in relation to the spouses when it has been contracted in good faith. If good faith exists only on the part of one of the spouses, the marriage only produces its effects in relation to this spouse.
Article 202. The marriage also produces its effects in relation to the children despite the fact that neither spouse was in good faith. Questions of their custody are ruled upon as in matters of divorce.
From as early as 1820, the Louisiana courts, in keeping with the codal requirement, have held that a woman who has had a good faith belief that she was legally married to her ‘spouse,’ although in reality she was not, is entitled to the ‘civil effects' of that marriage. The civil effects were deemed to include all the advantages and benefits allowed by law to a lawful wife.
The Spanish civil-law rule governing putative marriage also had an impact on Louisiana judicial interpretation of code articles, as well as on the law in other jurisdictions, including Texas and California. In Louisiana, the impact of Spanish doctrine is seen, for example, in relation to termination of the civil effects of a putative marriage. Louisiana jurisprudence provides that the civil effects cease when good faith ends, in accordance with Spanish doctrine, rather than at the time the marriage is declared null, as adherence to French doctrine would require.
Although the Texas legislature abolished Spanish civil law in 1840, and although family law (including the putative marriage doctrine) in Texas had been based upon Spanish-Mexican law up to that time, Texas cases after 1840 have continued to recognize the putative marriage doctrine. The decisions, however, have not been consistent in their rationale. Although there has never been any doubt that Texas law provides relief for the good faith putative spouse, some decisions suggest a continuation of the classic Spanish doctrine while others reject the classic doctrine and adopt an equitable equivalent. Prior to 1840, and in several later decisions, Texas courts recognized the putative spouse doctrine as fundamental law born of the Spanish Siete Partidas, which applied throughout Spanish America. These courts, applying the classic putative marriage doctrine, held that the putative spouse is entitled to all the incidents and privileges pertaining to a lawful marriage. Certainly, Las Siete Partidas provided that the putative spouse is so entitled. Three decisions made subsequent to the Act of 1840, held that the putative spouse doctrine of Las Siete Partidas was the applicable law. These decisions, however, related to marriages which had occurred prior to 1840, when Texas abolished the Spanish-Mexican law. The Act of January 20, 1840, which adopted the common law for Texas, stated that the rights of parties married in Texas prior to its passage ‘shall be regulated by the law as it aforetime was.’ Thus, although the Spanish-Mexican law was the appropriate law to apply in those cases, the decisions do not answer the question of whether the complete classic putative spouse doctrine should apply to null marriages contracted after 1840. Some subsequent Texas decisions held that, after 1840, equity was necessary to provide the putative spouse with the incidents of marriage; the putative spouse doctrine was no longer a matter of substantive law, but a remedy in equity. Furthermore, the courts reasoned that since the putative marriage doctrine was now an equitable matter, all of the civil effects of marriage no longer automatically flow, but the courts can equitably pick and choose. However, the syllabus to a 1905 decision of the Texas Supreme Court states:
Under the act of January 20, 1840, entitled ‘An act to adopt the common law of England, to repeal certain Mexican laws, and to regulate the marital rights of parties,’ the body of which is, with reference to married persons, inconsistent with the rules of common law, and conformable in the main to the Spanish law, the common-law rule declaring void the marriage of a woman to a man who is under the impediment of a prior existing marriage does not apply to a woman who contracts the marriage in good faith and without knowledge of the impediment, but so long as she continues to act innocently she has as to property aquired during that time, the rights of a lawful wife, and the corresponding obligations, and power to convey, with the consent of her supposed husband, and notwithstanding her infancy, her separate property.
Finally, in 1975, the Texas Supreme Court definitively ruled that a putative spouse has the right to all the incidents of a legal marriage, at least insofar as property division is concerned. Thus, although the Act of 1840 abolished Spanish law in Texas to follow the common law of England, it may not have abrogated the doctrine of putative marriage, which continued in the Spanish civil-law tradition. Nevertheless, certain benefits, such as workers' compensation benefits, do not flow to the putative spouse in Texas.
In California, putative marriage has also been preserved in the law, although the cases refer to equity and fundamental fairness as their foundation, rather than to California's Spanish legal heritage. While not acknowledging the impact of California's Spanish heritage on the doctrine, the decisions which establish the effects of putative marriage clearly reflect Spanish influence. The California Civil Code has recognized the doctrine since 1969. Code sections 4452 and 4800 provide for equal division of property, and California case law allows all the other incidents of marriage available under the Spanish putative marriage rule.
About the Author
Christopher L. Blakesley. Professor of Law, University of the Pacific, McGeorge School of Law; formerly Associate Professor of Law, Louisiana State University Law Center; formerly Attorney-Advisor, Office of the Legal Advisor, United States Department of State; B.A. 1969, University of Utah; M.A. 1970, Fletcher School of Law and Diplomacy, Tufts University; J.D. 1973, University of Utah; LL.M. 1976, columbia University, J.S.D. 1985, Columbia University.
Citation
60 Tul. L. Rev. 1 (1985)