The Rights of Putative Spouses: Choice of Law Issues and Comparative Insights

Abstract

ONE of the areas of family law where jurisdictions within the Western legal tradition differ the most is in the rights afforded to persons who, in good faith, participate in void marriages. The continuum of legal responses to such problems ranges from a total denial of any effect to such marriage ceremonies and a refusal to afford any rights to the good faith participant, to the recognition of an entire complex of rights, tantamount to a status, as vesting in the putative spouse. Most family law systems, including those in most of the United States, adopt a response at either end of this continuum. Hence significant choice of law problems must arise. The United States is experiencing a gradual increase in the number of States affording significant rights to putative spouses. With notable exceptions, until quite recently most US States afforded no such rights. This paper will attempt to anticipate the conflicts issues which may arise because of this reform movement in family law, ' and because of the mobile nature of the American population. Following a description of the genesis of the putative spouse concept in modern French civil law and a critique of that country's choice of law response, this article examines the relevant substantive law of the United States today. The limited US choice of law authority and experience is surveyed as well. By way of conclusion, some thoughts are offered concerning appropriate conflicts