Family Law

Void marriage--Who gets the property in Mississippi?

By Robert M. Kisselburgh, Esq.

Divided Mississippi Court of Appeals upholds equitable division of property in void marriage

In my last post, I spoke about the Chancery Court annulling a 37-year marriage because the wife failed to divorce her first husband when she married her second husband. But the question remained, why did the current husband, after 37 years of marriage, not agree to a divorce rather than fight for an annulment. The answer was money. If the husband agreed to a divorce, then the marital estate would be divided on an equitable basis. However, if there was no valid marriage in the first place, the husband could argue the wife was not entitled to an equitable division of the property. That is what he did.

Mississippi law, according to the husband, required a party to a void marriage to have entered into that marriage in good faith before the chancellor could award any form of equitable relief. His position was the wife did not enter into this marriage in good faith given she knew she was not divorced from her first husband at the time of the marriage. However, the Chancellor, nor the Court of Appeals, was swayed by this argument. It held that ?good faith is not required under Mississippi law to support an equitable distribution of property acquired during a void marriage.? The Court said, ?where parties live together without benefit of marriage and where, through their joint efforts, accumulate real property or personal property, or both, a party having no legal title nevertheless acquires rights to an equitable share enforceable at law?. Such a remedy is only available where ?the couples had ? either been married or contended to have married.??

Full post as published by Mississippi Family Law Blog on January 30, 2010 (boomark / email).