Wederstrandt v. Kol: The Louisiana Supreme Court’s Fear Over the Contract of Marriage
Casenote
By Ryan J. Taix
Introduction: The Slippery Slope of the Contract of Marriage
Marriage, a union between two persons, is a concept that seems simple. Despite its perceivable simplicity, it has been a topic of debate in the Louisiana Supreme Court because of the uncertainty surrounding its legal definition. In the case of Wederstrandt v. Kol, the Louisiana Supreme Court found that it had no authority to investigate the cause of a marriage, an apparent win for the rights of citizens.[1] However, this decision raised a broader question and created a slippery slope for Louisiana courts. If a marriage is considered a “civil contract,” as the Louisiana Civil Code indicates,[2] why does a marriage contract not have to follow the four basic requirements for a contract:[3] (1) capacity, (2) consent, (3) cause, and (4) object? People get married for a variety of causes: love, money, family, and even citizenship, but according to Wederstrandt, the courts do not have the power to step in and evaluate the various causes of a marriage contract.[4] This holding essentially undermines the requirement in civilian tradition that all contracts must have a lawful cause.[5] If the holding in Wederstrandt[6] is correct and the contract of marriage does not follow the traditional Civil Code definition of a contract,[7] why did the Louisiana legislature call it a contract in the first place?[8]
This casenote will explore why the Louisiana Supreme Court opted not to follow traditional contract law from the Louisiana Civil Code and instead used (1) principles of statutory interpretation like expressio unius est exclusio alterius,[9] (2) insight from Prof Katherine Spaht’s law review article on when general obligations principles can apply to the contract of marriage, and (3) policy considerations, to conclude that general contracts code articles do not apply to the contract of marriage. Wederstrandt is a misleading opinion and overlooks several aspects of the Civil Code and ultimately puts policy considerations before Louisiana legal tradition.
I. Facts and Holding
First, this Section explores the facts of the Wederstrandt decision. Next, this Section turns to the procedural history and examines how the lower courts ruled on the issue of cause in the contract of marriage. Finally, this Section briefly discusses the Louisiana Supreme Court’s decision in this landmark case.
A. Facts: A Wedding, A Fatal Crash, and A Lawsuit
In July 2017, Eden Kol married Ivie Efferson in East Baton Rouge Parish.[10] Mr. Kol, originally a citizen of Israel, migrated to the United States and was undocumented at the time of his and Ivie’s marriage.[11] After the marriage ceremony, Ivie and Mr. Kol leased an apartment in Baton Rouge.[12] However, Mr. Kol was not present in Louisiana for most of the marriage.[13] Instead, he resided in California and only returned to Baton Rouge as necessary to keep up the appearance of an allegedly false marriage during the immigration process.[14] Mr. Kol and Ivie applied for Mr. Kol’s permanent resident status from United States Customs and Immigration Services, which determined the marriage to be valid for immigration purposes.[15] Thereafter, Mr. Kol became a full permanent resident of the United States due to the marriage.[16]
On June 12, 2021, Ivie Efferson was tragically killed in an automobile accident at the young age of twenty-four, leaving behind her husband Mr. Kol.[17] On June 24, 2021, Billy Efferson and Amy Wederstrandt, the parents of the deceased Ivie, filed a Petition for Declaration of Absolutely Null Marriage to render their deceased daughter’s marriage to Mr. Kol absolutely null.[18]In their petition, the parents alleged that the marriage between their daughter and Mr. Kol was “fraudulent and entered solely for the purpose of violating federal immigration law[s].”[19] They claimed that Mr. Kol and Ivie never had a “meaningful” or “intimate” relationship.[20] Further, they claimed that Mr. Kol and Ivie “did not cohabitate as husband and wife, both parties had romantic relationships with others during the entire duration of the alleged marriage, and Mr. Kol paid Ivie $10,000 in cash to enter into the false marriage.”[21] Thus, the plaintiffs allege Mr. Kol and Ivie knowingly entered the civil contract of marriage for the sole purpose of criminally evading immigration laws in violation of 8 U.S.C. §1325(c),[22] for Mr. Kol to obtain permanent resident status in the United States.[23]
The plaintiffs argued that the cause and object of Ivie and Mr. Kol’s marriage contract violated a rule of public order and was “clearly illicit and immoral,” which under general contract principles, particularly articles 7 and 2030 of the Louisiana Civil Code, should render the marriage contract absolutely null.[24]
B. Procedural History: The Intersection of Love and Cause
The plaintiffs brought this action to nullify their daughter’s marriage to the defendant, Eden Kol.[25] More particularly, they brought this action based upon the allegation that Ivie and Mr. Kol married solely to evade federal immigration laws so that Mr. Kol could obtain permanent resident status in the United States of America.[26] The plaintiffs’ main argument in this case was that article 94,[27] titled “Absolutely Null Marriage,” does not comprise the exclusive list of absolute nullities for the civil contract of marriage.[28] Specifically, they claimed that article 2030,[29] titled “Absolute Nullity of Contracts,” also applies to marriage contracts and would thus render this particular marriage contract absolutely null due to an illicit cause and object.[30]
Mr. Kol filed an exception of no cause of action, alleging that under the Louisiana Civil Code, the plaintiffs failed to state a cause of action for nullification of his marriage.[31] He claimed that article 94 clearly provides the exclusive list of absolute nullities and that the legislature intentionally excluded illicit cause from that list.[32] The trial court held a hearing on the exception of no cause of action on October 12, 2021, during which the court sustained the exception of no cause of action and dismissed the plaintiffs’ petition with prejudice, to which the Plaintiffs appealed.[33]
On October 5, 2022, the Louisiana First Circuit Court of Appeal affirmed, noting that article 94 is the more specific article as it relates to the nullity of a marriage, thus rejecting the plaintiffs’ argument that the general principles of conventional obligations apply broadly to marriage as a civil contract.[34] Judge Welch dissented, finding no conflict between the Civil Code articles of marriage and those about obligations and contracts more broadly.[35] Judge Welch, therefore, would have held that a marriage contract alleged to have been entered into for the sole purpose of evading federal immigration law is a valid cause of action for absolute nullity under Louisiana law through the incorporation of the broader obligations code articles.[36]
The Louisiana Supreme Court thereafter granted the plaintiffs’ writ application and, on June 27, 2023, in a 4-3 decision, held that the plaintiffs did not plead a cause of action under the facts of this case for nullification of the decedent's marriage.[37]Therefore, the Louisiana Supreme Court held that a marriage contract with an alleged illicit cause and object is not a valid cause of action to render the marriage absolutely null.[38]
II. Background: Where the Law of Contract Meets the Law of Marriage
In Wederstrandt, the question before the Louisiana Supreme Court was simple—does article 2030, titled “Absolute Nullity of Contracts,” also apply to marriage contracts?[39] Louisiana Civil Code article 87 outlines the requirements to achieve a valid marriage,[40] and Louisiana Civil Code article 94 outlines the factors that render a marriage contract absolutely null.[41] Still, the key question in front of the Louisiana Supreme Court was whether the list in article 94 is exclusive, or if other code articles about contracts in general also apply.
To answer this difficult question, the court first used statutory interpretation principles to dissect the relevant Louisiana Civil Code articles.[42] Next, the court used principles from marriage-related code articles, as well as general obligations code articles, to guide its analysis on the definition of marriage.[43] Finally, the court turned to Professor Katherine Spaht’s Law Review article, titled Revision of the Law of Marriage: One Baby Step Forward, to reach its conclusion.[44] Ultimately, the Louisiana Supreme Court leaned on policy considerations to reach its conclusion rather than upholding civilian traditions relating to contracts.
A. By The Book, Marriage According to The Louisiana Civil Code
First, the court began its analysis by looking at the Civil Code to determine marriage’s legal definition. “The starting point for the interpretation of any statute is the language of the statute itself, as what a legislature says in the text of a statute is considered the best evidence of its intent and will.”[45] Additionally, article 9 of the Louisiana Civil Code provides that “when a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.”[46] Since the inception of the Louisiana Civil Code, marriage has been referred to as a “civil contract.”[47] Louisiana Civil Code article 86 defines marriage as “a legal relationship between a man and woman that is created by civil contract, and both the relationship and the contract are subject to special rules prescribed by law.”[48] Louisiana jurisprudence has long accepted the proposition that marriage is not simply a contract, but rather a legal relationship that differs from other contractual relationships.[49] As early as 1918, the Louisiana Supreme Court recognized marriage as “something more than a mere contract.”[50] In Hurry v. Hurry, the court stated that “when the contract to marry is executed, a relation between the parties is created which they cannot change.”[51]
Louisiana Civil Code article 87 controls the requirements for a valid marriage.[52] The three essential elements of a valid marriage contract are: (1) “the absence of a legal impediment,” (2) “the performance of a marriage ceremony,” and (3) “the free consent of the parties to take each other as husband and wife, expressed at the ceremony.”[53]
Next, Louisiana Civil Code article 94 controls the grounds for an absolute nullity of marriage indicating that “a marriage is absolutely null when contracted without a marriage ceremony, by procuration, or in violation of an impediment.”[54] Article 94 also indicates that “a judicial declaration of nullity is not required, but an action to recognize the nullity may be brought by any interested person.”[55]
Finally, Civil Code articles 88, 90, and 90.1 define the legal impediments to a marriage contract.[56] Those impediments are (1) bigamy,[57] (2) marriages between ascendants, descendants, and those individuals related within the fourth degree,[58]and (3) marriages involving a minor.[59] Any of these impediments would give rise to an absolute nullity.[60] Again, the simple question before the Louisiana Supreme Court was whether there are gaps in article 94, such that it would be appropriate to turn to other code articles about contracts in general, or whether article 94 indicates the exclusive ways a marriage contract can be absolutely null.
B. The Nominate Contract of Marriage
After looking to the Civil Code articles on marriage, the court looked at the relationship between those articles and the articles governing contracts in general.[61] The Louisiana Civil Code is a “self-sufficient and logically interdependent enactment, to be construed as a whole, and to regulate entirely the relationships and incidents within its scope.”[62] One of the many relationships in the Civil Code is that between nominate and innominate contracts.[63] Nominate contracts are those with special designations or names, while innominate contracts are those with no special designation.[64] This distinction is important because “nominate contracts, such as sale or lease, are governed by special rules whereas innominate contracts are subject to the general rules on contracts.”[65]
Louisiana Civil Code article 1916 provides that “nominate contracts are subject to the special rules of the respective titles when those rules modify, complement, or depart from the rules of this title.”[66] At least ten nominate contracts exist in the Louisiana Civil Code,[67] and all of them except marriage are supported by a coordinating article that outlines the nominate contract’s relation with the rules governing general or conventional obligations.[68]
For example, article 2439 defines a contract of sale as a contract where a person transfers ownership of a thing to another for a price in money.[69] “The thing, the price, and the consent of the parties” are required for a valid sale under Louisiana Law.[70] Further, article 2438 provides that “in all matters for which no special provision is made in this title, the contract of sale is governed by the rules of the titles on Obligations in General and Conventional Obligations or Contracts.”[71] However, comparing the contract of marriage to the contract of sale and other nominate contracts in the Louisiana Civil Code, there is no corresponding article for marriage referring back to any section of the Civil Code to provide supplemental obligations.[72] This gap in the Code raises the question of whether, and if so, when, general contract principles can apply to marriage contracts.
C. Professor Spaht’s Baby Step Forward for the Rights of The People
To answer some of these difficult questions presented, the Court turned to Professor Katherine Spaht, the reporter for the 1981 Persons Committee of the Louisiana Law Institute.[73] The Court utilized her law review article, titled Revision of the Law of Marriage: One Baby Step Forward, to determine the relationship between the code articles on marriage and traditional obligations.[74] Professor Spaht indicated that based on the Louisiana Law Institute’s 1986 revision of the Civil Code, general obligations principles may apply to the civil contract of marriage.[75] She noted that “there are occasions where it will be necessary to resort to general obligations principles to resolve questions unanswered by the special rules in Chapter 1 or 2 of Title IV of Book I of the Civil Code.”[76] Here, the court acknowledges that traditional obligations principles can apply to the contract of marriage; the only question remaining for the Court is when?
Finally, to answer the question of when general obligations principles may apply, the court turned back to the Louisiana Civil Code. Article 7 of the Louisiana Civil Code titled “Laws for the Preservation of the Public Interest” provides that “[p]ersons may not by their juridical acts derogate from laws enacted for the protection of the public interest,” and “[a]ny act in derogation of such laws is an absolute nullity.”[77] This Code article seems to serve as a blanket rule applying to all provisions of the Civil Code since the intentional use of the word “any” refers to all Code articles.[78] In enacting article 7, the legislature was attempting to show that under no circumstance is an act that derogates from the law valid.[79] If the court were to have taken this approach, article 7 would be used to supplement article 94. This approach would mean that article 94 would not provide the exclusive list to render a marriage contract absolutely null, and a marriage contract could be rendered absolutely null by general contracts code articles. However, the court decided to not apply article 7 to the contract of marriage and instead allowed policy considerations to take precedence over legislation in its decision. [80]
III. The Court’s Decision: Marriage Shall Not Follow Traditional Obligations Principles
On June 27, 2023, in a 4-3 decision, the Louisiana Supreme Court held that illicit cause or object are not valid causes of actions to nullify a marriage contract.[81] The court reasoned that due to statutory interpretation principles, policy considerations, and ideas from the 1981 Persons Committee, illicit cause or object would not render a marriage contract absolutely null.[82]Three justices dissented, two of which provided crucial reasoning suggesting that the majority got it wrong.[83] This Section discusses (1) the majority’s selective use of statutory interpretation, (2) the majority’s reasoning for not expanding the law to include illicit cause or object, (3) Justice Weimer’s reasons for dissenting, and (4) Justice Crain’s dissent.
A. The Legislature’s Intent for the Contract of Marriage
First, the main issue in this case involves the interpretation of articles of the Louisiana Civil Code.[84] The court properly started with the plain language of the statute to determine the legislature's intent.[85] Louisiana Civil Code article 9 further provides that “when a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.”[86]
Louisiana Civil Code article 86 provides that marriage is a “legal relationship created by civil contract subject to special rules prescribed by law.”[87] The court reiterated that the exclusive requirements for the contract of marriage found in article 87 are (1) “the absence of a legal impediment,” (2) “a marriage ceremony,” and (3) the free consent of the parties as expressed at the ceremony.[88] The court further reasoned that the only sources for an absolute nullity of a marriage contract are outlined in Civil Code article 94,[89] which provides that “[a] marriage is absolutely null when contracted without a marriage ceremony, by procuration, or in violation of a legal impediment.”[90]
The court specifically noted that “there is no catchall provision” in article 94 referring back to any article concerning obligations generally.[91] Therefore, the court elected to apply the settled doctrine of statutory construction, expressio unius est exclusio alterius, which dictates that “when the legislature specifically enumerates a series of things, the legislature's omission of other items, which could have easily been included in the statute, is deemed intentional.”[92] Pursuant to this principle, the court ultimately held that article 94 is exclusive because illicit cause could have easily been added to the list in article 94, yet it was omitted.[93] Additionally, the court reasoned that the application of article 94, in this case, does not lead to an absurd consequence under the facts, thus the court may not turn to other provisions for interpretation.[94]
B. No Expansion Necessary: The Supreme Court Opts to Ignore Cause and Object for Purposes of Marriage
Ultimately, the court elected not to expand the scope of the list in article 94 through reference to conventional obligations and thus rejected the argument that principles of conventional obligations apply to the contract of marriage.[95] However, article 1915, for example, states “[a]ll contracts, nominate and innominate, are subject to the rules of this title.”[96] Although one could argue the word “contract” is “clear and unambiguous” and should be applied as written to include all contracts, including the contract of marriage, this court declined to adopt this reasoning based upon their selective rules of statutory interpretation.[97]
Rather, the court reasoned that Book III, Title IV, of the Civil Code[98] was not intended to be applied to the nominate contract of marriage as it is to other provisions of the Civil Code.[99] Critically, article 13 states that “[l]aws on the same subject matter must be interpreted in reference to each other.”[100] The insertion of “nominate and innominate,” when read in pari materia[101] with other provisions on conventional obligations, references the court to article 1914, which states that “[n]ominate contracts are those given a special designation such as sale, lease, loan, or insurance.”[102] The court noted that while marriage contracts are given a special designation and are therefore nominate contracts, they do not fall within the types of categories of contracts that are listed as examples.[103] Thus, the court declined to find that articles 1914 and 1916 intended to incorporate the contract of marriage into the types of contracts subject to conventional obligations.[104]
1. The 1981 Person’s Committee Saw This Issue Coming
In addition to its discussion on nominate contracts, the court noted that the 1981 Persons Committee meeting prior to the revision of certain code articles related to matrimonial regimes provided insight into this exact issue.[105] The Committee specifically declined to set forth a blanket approval (or disapproval) of reference to general obligations principles as it relates to the contract of marriage.[106] Professor Spaht, the reporter for the Persons Committee of the Louisiana Law Institute at the time, stated in her law review article that “[s]everal members . . . agreed that such an absolute bar [against the application of general obligations principles] was unwise, but disapproved adopting the converse provision that obligations principles could always be applied unless their use was also explicitly disapproved.”[107]
Next, the court reasoned that the “legislature (by way of adopting the Law Institute's revisions), neither intended to incorporate all of the conventional obligations principles nor to exclude their applicability” altogether.[108] Crucially, the court acknowledged that “[t]here are occasions where it will be necessary to resort to general obligations principles to resolve unanswered questions of the Civil Code.”[109] Additionally, the court indicated that “since marriage is created by a civil contract, it is appropriate in many instances to do so for the contract of marriage.”[110] The only question remaining for the court was whether this was one of those instances. The court ultimately reasoned that, although it can resort to the general principles of obligations in certain circumstances when dealing with marriage contracts, it was not necessary in this case.[111] Based on the facts of this case, the court did not find a gap requiring the use of general obligations principles.[112] Rather, the court found that “article 94 speaks directly on this issue, leaving no question unanswered as to what creates an absolute nullity in a marriage.”[113]
2. The Contract of Marriage’s Messy Policy Concerns
Finally, the court considered the policy implications of incorporating article 2030 into article 94.[114] Article 2030 states that “contracts are absolutely null if entered into for illicit or immoral purposes.”[115] The court’s main concern in taking this approach is that “imposing this requirement in the marriage context would require courts to engage in the distasteful task of interpreting for what purposes a marriage contract could be considered illicit—or perhaps even more troublesome—immoral.”[116] On this issue, the Court held that “[t]he policy consequences of such judicial meddling in the personal choices of adults, who have otherwise validly contracted to marry, are therefore not inconsequential.”[117]
The court recognized its responsibilities and was mindful that “every word, sentence, or provision in a law is presumed to be intended to serve some useful purpose, and that some effect is given to each such provision, and that no unnecessary words or provisions were employed.”[118] The court specifically noted that “it is within the province of the legislature to decide whether to expand the list of legal impediments to a marriage contract and thus not only render this particular act (as alleged) to be a criminal one but also one that constitutes an impediment of marriage.”[119] However, until the legislature expands this list, the court is limited by their rules of statutory construction as set forth in this case and found that article 94 contains the exclusive list for absolute nullities of the civil contract of marriage.[120]
Therefore, for all the aforementioned reasons, the court declined to extend the current legislation to include illicit cause and object as ways to render a marriage contract absolutely null.[121]
C. Justice Weimer’s Dissent: Fraud Can Never Be a Valid Reason to Contract
Justice Weimer respectfully dissented, but he agreed with the majority on one issue, noting that “the reasons someone chooses to marry should not be evaluated in a court of law.”[122] Additionally, he did share the concern of his colleagues in the majority about the “potential slippery slope and ramifications of judicial meddling in such personal choices.”[123] However, he felt that “this Court was faced with specific and limited facts alleged to constitute a sham marriage in violation of federal immigration laws and that it must apply the law as written to decide whether a cause of action exists to challenge the marriage.”[124]
Justice Weimer agreed with Justice Crain that the grounds for nullity of a marriage contract stated in Civil Code article 94 are not the exclusive grounds to declare a marriage absolutely null.[125] Likewise, he agreed with Justice Crain that article 7 sets forth a fundamental principle that permeates and resonates throughout the Civil Code, and which may be applied in determining the validity of a marriage.[126] He reasoned that “to hold otherwise would lead to an absurd result—allowing a party to enter into a marriage contract for the sole purpose of engaging in criminal activity by evading federal immigration laws.”[127]
D. Justice Crain’s Dissent: Article 94 is Not Exclusive
Next, Justice Crain found that “[a]rticle 94 does not expressly state whether its grounds for absolute nullity are exclusive or if they are in addition to those provided elsewhere in the Civil Code for contracts and other juridical acts.”[128] Justice Crain further noted that “[t]he article identifies certain absolute nullities without qualifying whether they are the ‘exclusive’ or the ‘only’ grounds to declare a marriage absolutely null.”[129] Justice Crain reasoned, “Exclusive or not, article 94 is required because the contract of marriage has some unique requirements: a ceremony is required, one cannot enter the agreement with a close relative, and the contract cannot be entered if one of the parties is in a similar contract with another person.”[130] He further reasoned that “without article 94, we would not know if the lack of a ceremony or the presence of an impediment renders a marriage absolutely null, relatively null, or not null at all.”[131]
Unlike the majority, Justice Crain reasoned that “[a]rticle 7 states a fundamental principle of the Civil Code denouncing and invalidating illegal conduct in any act intended to have legal consequences.”[132] Justice Crain reasoned that “if the legislature intended for the contract of marriage to be the sole exception to this rule, a clear statement to that effect would be required [and] . . . [a]rticle 94 is not that statement.”[133] While Justice Crain agreed with the majority that “blanket application of the conventional obligation laws to marriage could lead to absurd results, [he] found nothing absurd about the application of article 7 to invalidate an alleged marriage where one party was paid a significant sum of money to enter the union of marriage solely to perpetuate a federal crime.”[134] He found that “holding otherwise, the majority unnecessarily diminishes the status of marriage by bestowing that legal standing on alleged criminal conduct.”[135] He would therefore have reversed the lower court's judgment and remanded for further proceedings.[136]
IV. Analysis: The Majority Misses the Forest for the Trees and Ignores Civilian Traditions
The Louisiana Supreme Court incorrectly held that article 94 provides the exclusive ways in which a marriage contract can be rendered absolutely null.[137] Further, the court incorrectly held that illicit cause is not grounds to render a marriage contract absolutely null.[138] Article 7 of the Louisiana Civil Code titled “Laws for the Preservation of the Public Interest” states that “[p]ersons may not by their juridical acts derogate from laws enacted for the protection of the public interest,” and that “[a]ny act in derogation of such laws is an absolute nullity.”[139] This court has already stated that marriage itself is a “civil contract” and juridical act, so why does the court ignore the groundwork of the Louisiana Civil Code?[140] Following that reasoning, why did the Louisiana Supreme Court overlook the fact that nothing in article 94 indicates that it is exclusive? Finally, the court recognized Professor Spaht’s law review article and the 1981 Persons Committee’s stance that encourages the use of general obligations principles in the contract of marriage under limited circumstances, but the court mistakenly declined to find that this case involved one of those special circumstances.[141] This holding begs the question: how illicit or immoral must a cause to marry be for a court to intervene?
This Section will illustrate the three main reasons why Louisiana’s highest court erred in its decision. First, nothing in article 94 indicates its exclusivity. If the article was meant to be exclusive, the legislature would have specifically indicated as much. Second, Professor Spaht’s law review article argued that the use of obligations principles in the contract of marriage can be acceptable in certain circumstances. Finally, the Court allowed policy concerns to interfere with its duty to uphold civilian traditions.
A. Article 94 is Not Exclusive
First, article 94 does not establish the exclusive grounds to render a marriage absolutely null. Rather it adds circumstances in which the contract of marriage may be absolutely null. Nowhere does article 94 indicate that it provides the exclusive way in which a marriage contract can be absolutely null.[142] Rather than holding that article 94 is exclusive, the court should have determined that articles 7 and 2030, which relate to contracts as a whole, influence the Civil Code articles on marriage. Thus, as Justice Crain indicated, the marriage Code articles should be read together with the general obligations articles to arrive at the rule that illicit cause or object can render a marriage contract absolutely null.[143]
Next, in this case, the plaintiffs alleged that the contract of marriage was entered into for the sole purpose of committing immigration fraud.[144] In the Louisiana Civil Code, marriage is clearly defined as a “Civil Contract,”[145] thus general principles about contracts and obligations should also apply.[146] Article 7 of the Louisiana Civil Code provides that “persons may not by their juridical acts derogate from laws enacted for the protection of the public interest, [and that] any act in derogation of such laws is an absolute nullity.”[147]Additionally, article 2030 states that “a contract is absolutely null when it violates a rule of public order, as when the object of a contract is illicit or immoral,” and that “[a] contract that is absolutely null may not be confirmed.”[148] Applying these two Code articles, a contract of marriage that violates a rule of public order should be absolutely null.[149] Unlike the majority, Justice Crain reasoned that article 94, titled “Absolute Nullity of Marriage,” is an additional source of absolute nullities that further complements the basic principles of nullity set forth in article 7.[150] Article 94 does not overrule or overshadow article 7; rather, it adds the requirement of a ceremony, requires freedom from legal impediments, and disallows procuration.[151]
Next, unlike the majority opinion’s use of the doctrine of expressio unius est exclusio alterius[152] to claim there is a disagreement between article 7 and article 94, Justice Crain’s dissent correctly reasoned that these Code articles should be read together instead of against one another.[153] Proper harmonization of the Louisiana Civil Code requires all articles to be read together and treated in the same way.[154] If the court had adopted this approach, they would have properly determined that article 7 and article 2030 relate to contracts as a whole, complementing articles 87 and 94, which relate specifically to marriage contracts.
Finally, the terminology used in article 7 clearly indicates that it applies to all acts including the civil contract of marriage.[155] It is well settled that “every word, sentence, or provision in a law is presumed to be intended to serve some useful purpose, that some effect is given to each such provision, and that no unnecessary words or provisions were employed.”[156] In article 7, the legislature specifically chose to use the language “any act.”[157] In the plain reading of this article, the language “any act” indicates that the article should apply to all acts including marriage contracts. Thus, article 7 should apply here and render this contract absolutely null. This reasoning is the same reasoning that Justice Crain used in his dissent noting that “[a]rticle 7 states a fundamental principle of the Civil Code denouncing and invalidating illegal conduct in any act intended to have legal consequences.”[158] He further reasoned that “if the legislature intended for the contract of marriage to be the sole exception to this rule, a clear statement to that effect is required, and article 94 is not that statement.”[159] Therefore, because article 86 clearly identifies marriage as a “civil contract,” general contract principles such as article 7 and article 2030, which apply to all contracts, should apply here and render this particular marriage contract absolutely null.
B. Professor Spaht’s Law Review Article Opened the Door For A Different Conclusion
Professor Spaht’s law review article, discussed above, indicates that “there are occasions where it will be necessary to resort to general obligations principles to resolve questions unanswered by the special rules in Chapters 1 or 2 of Title IV of Book I of the Civil Code.”[160] In this case, the Louisiana Supreme Court did not apply Professor Spaht's recommendation from the Louisiana Law Institute’s 1981 Persons Committee meeting. Here, the question of article 94’s exclusivity is left unanswered, and turning to general obligations principles, as recommended by Professor Spaht, would resolve this issue.
As Justice Crain noted in his dissent, article 94 does not indicate whether it is exclusive.[161] Therefore, the court was presented with one of the rare occasions where it would be appropriate to turn to general obligations principles. The majority opinion must have overlooked Professor Spaht’s insight because the court took an approach directly opposing her recommendation.[162] The court should have taken Professor Spaht’s approach and applied general obligations principles in this situation.[163]
C. Policy Concerns Clearly Clouded the Supreme Court’s Judgment, Leaving All Hope With The Legislature
The Louisiana Supreme Court clearly allowed policy concerns to interfere with their application of the relevant law.[164]It is evident in the last two paragraphs of the majority opinion that the court is concerned about the policy ramifications that come with looking into the cause of a marriage contract.[165] However, as Justice Hughes indicates in his dissent, “the majority simply misses the forest for the trees.”[166] Justice Hughes believes the sole cause of this marriage is to violate the law, which, under his reasoning, should render the contract of marriage null.[167] The court knows that investigating the cause of marriage is a slippery slope and comes with its own policy concerns.[168] However, the court should not allow that fear to overcome commitment to Louisiana’s civilian traditions. Rather than uphold principles from the Civil Code's inception, the majority puts public policy concerns first and ignores longstanding legislation and customs.[169]
At the end of the majority opinion, they are almost begging the legislature to revise the marriage code articles to clear up the issues presented in this case, likely because they are afraid of the public policy implications to follow.[170] The majority knows and understands that article 7 is a part of the framework of the Civil Code and should be applied to all contracts. However, the Court likely feels as if applying it in this case would create more harm than benefit. Therefore, now this issue rests solely in the hands of the legislature to determine whether this state will continue to authorize illicit conduct, or whether the legislature will rightfully step in and bring clarity to this issue.
Conclusion
In conclusion, this landmark decision chooses policy considerations over Louisiana legal tradition. First, Louisiana law clearly disallows marriage contracts with an illicit cause, yet the Supreme Court ignores that legislation.[171] Second, as Professor Spaht indicated, there are times when general obligations principles, such as cause, can be applied to the contract of marriage.[172] However, the Court erred in failing to recognize this case as one of those special circumstances in which Professor Spaht would have encouraged the use of general obligations principles. Third, the Court is justified in its policy concerns and the potential flood of litigation that could ensue if courts started looking into the cause of marriages. Nevertheless, the court cannot let those concerns stand in the way of upholding the law. For these three key reasons, the Louisiana Supreme Court erred in its decision that an illicit cause cannot render a marriage contract absolutely null.
Footnotes:
[1] See Wederstrandt v. Kol, 2022-01570, p. 11 (La. 06/27/23), 366 So. 3d 47, 55.
[2] La. Civ. Code Ann. art. 86 (Providing that “[m]arriage is a legal relationship between a man and a woman that is created by civil contract.”).
[3] The four elements of a valid contract under Louisiana Law are: (1) the parties must possess the capacity to contract; (2) the parties' mutual consent must be freely given; (3) there must be a certain object for the contract; and (4) the contract must have a lawful purpose. These basic requirements for the formation of a contract are found in Title IV of the civil code. Specifically, La. Civ. Code Ann. art. 1918 provides for capacity; La. Civ. Code Ann. art. 1927 provides for consent; La. Civ. Code Ann. art. 1966 provides that an obligation cannot exist without a lawful cause; and La. Civ. Code Ann. art. 1971 provides that parties may contract for any object that is lawful, possible, and determined or determinable. See La. Civ. Code. Ann. art. 1918; La. Civ. Code. Ann. art. 1927; La. Civ. Code. Ann. art. 1966; La. Civ. Code. Ann. Art. 1971.
[4] See Wederstrandt, 366 So. 3d at 55.
[5] La. Civ. Code Ann. art. 1966 (providing that an obligation cannot exist without a lawful cause.).
[6] See Wederstrandt, 366 So. 3d at 54.
[7] La. Civ. Code Ann. art. 1906 (providing that a contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished). The four elements of a valid contract are: (1) the parties must possess the capacity to contract; (2) the parties' mutual consent must be freely given; (3) there must be a certain object for the contract; and (4) the contract must have a lawful purpose. See La. Civ. Code. Ann. art. 1918; La. Civ. Code. Ann. art. 1927; La. Civ. Code. Ann. art. 1966; La. Civ. Code. Ann. Art. 1971.
[8] La. Civ. Code Ann. art. 86.
[9] A Latin term meaning "the expression of one thing is the exclusion of the other." This is a common law principle for construing legislation which holds that a syntactical presumption may be made that an express reference to one matter excludes other matters.
[10] Brief for Plaintiffs-Applicants at 1, Wederstrandt v. Kol, 2022-01570 (La. 06/27/23); 366 So. 3d 47.
[11] See id.
[12] Id. at 1, n.2.
[13] Id.
[14] Id.
[15] Id. at 1.
[16] Id.
[17] Wederstrandt v. Kol, 2022-01570, p. 1 (La. 06/27/23); 366 So. 3d 47, 49.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] 8 U.S.C. §1325(c) (stating that “[a]ny individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both.”).
[23] Wederstrandt, 366 So. 3d at 49.
[24] Id.
[25] Id.
[26] Id.
[27] La. Civ. Code Ann. art. 94 (providing that a marriage is absolutely null when (1) contracted without a marriage ceremony, (2) by procuration, or (3) in violation of an impediment.).
[28] Wederstrandt, 366 So. 3d at 50.
[29] La. Civ. Code Ann. art. 2030 (providing that a contract is absolutely null when it violates a rule of public order, as when the object of a contract is illicit or immoral.).
[30] Wederstrandt,366 So. 3d at49.
[31] Id.
[32] Id. at 49-50.
[33] Id. at 50.
[34] Wederstrandt v. Kol, 2022-0108 p. 5 (La. App. 1 Cir 10/05/22); 353 So. 3d 833, 836.
[35] Id. at 837.
[36] Id.
[37] Wederstrandt,366 So. 3d at 55.
[38] See id.
[39] See id. at 55-56.
[40] La. Civ. Code Ann. art. 87.
[41] La. Civ. Code Ann. art. 94.
[42] Wederstrandt, 366 So. 3d at 51.
[43] Id. at 52-53.
[44] Id. at 54.
[45] Mayeux v. Charlet, 2016-1463, p. 8 (La. 10/28/16), 203 So. 3d 1030, 1036 (citing M.J. Farms, LTD v. Exxon Mobil Corp., et al., 2007-2371, p. 13 (La. 7/1/08), 998 So. 2d 16, 27).
[46] La. Civ. Code Ann. art. 9.
[47] La. Civ. Code Ann. art. 86.
[48] Id. (following the United States Supreme Court Case Obergefell v. Hodges in 2015, La. Civ. Code Ann. art. 86 was declared unconstitutional. In light of the Obergefell decision, the Louisiana Supreme Court held that “the State of Louisiana may not bar same-sex couples from the civil effects of marriage on the same terms accorded to opposite-sex couples.”); see Costanza v. Caldwell, 2014-2090 p. 3 (La. 07/07/15), 167 So. 3d 619, 621.However, the Louisiana Civil Code has not been updated to remove the limitation of “husband and wife.”
[49] Katherine Shaw Spaht, Revision of the Law of Marriage: One Baby Step Forward, 48 La. L. Rev. 1131, 1133 (1988) (discussing the definition of a marriage contract).
[50] Hurry v. Hurry, 144 La. 877, 885 (La. 1918).
[51] Id.
[52] La. Civ. Code Ann. art. 87.
[53] Id.
[54] La. Civ. Code Ann. art. 94.
[55] Id.
[56] See La. Civ. Code Ann. art. 88; La. Civ. Code Ann. art. 89; La. Civ. Code Ann. art. 90; La. Civ. Code Ann. art. 90.1.
[57] La. Civ. Code Ann. art. 88 (providing that “a married person may not contract another marriage.”).
[58] La. Civ. Code Ann. art. 90.
[59] La. Civ. Code Ann. art. 90.1(indicating that “an individual under the age of sixteen may not contract marriage, and those between sixteen and seventeen may not contract marriage with any person of the age of majority where there is a three-year or more age difference.”).
[60] Following the United States Supreme Court Case Obergefell v. Hodges in 2015, La. Civ. Code Ann. art. 89 was declared unconstitutional. However, the Civil Code has not been updated to remove or modify article 89 thus the statute remains unconstitutional.
[61] See Wederstrandt v. Kol, 2022-01570, p. 7 (La. 06/27/23); 366 So. 3d 47, 52-53.
[62] Udomeh v. Joseph, 2011-2839, p. 5 (La. 10/26/12); 103 So. 3d 343, 347 (Quoting Albert Tate, Jr., Techniques of Judicial Interpretation in Louisiana, 22 La. L. Rev. 727, 728 (1962)).
[63] See La. Civ. Code Ann. art. 1914.
[64] La. Civ. Code Ann. art. 1914; see also Ronald J. Scalise, Jr., Classifying and Clarifying Contracts, 76 La. L. Rev. 1063 (2016).
[65] See Ronald J. Scalise, Jr., Classifying and Clarifying Contracts, 76 La. L. Rev. 1063 (2016).
[66] La. Civ. Code Ann. art. 1916. (Article 1916 is in Title IV of the Civil Code titled Conventional Obligations or Contracts.).
[67] Nominate contracts in Louisiana include: sale, exchange, lease, annuity, partnership, loan for use, deposit, mandate, donation inter vivos and mortis causa, and marriage.
[68] See generally La. Civ. Code Ann. art. 2438; La. Civ. Code Ann. art. 2669; La. Civ. Code Ann. art. 2664; La. Civ. Code Ann. art. 2779; La. Civ. Code Ann. art. 2802; La. Civ. Code Ann. art. 2892; La. Civ. Code Ann. art. 2927; La. Civ. Code Ann. art. 2990.
[69] La. Civ. Code Ann. art. 2439; Brief for Defendant-Respondent at 11, Wederstrandt v. Kol, 2022-01570 (La. 06/27/23); 366 So. 3d 47.
[70] La. Civ. Code Ann. art. 2439 (2023); Brief for Defendant-Respondent at 11, Wederstrandt v. Kol, 2022-01570 (La. 06/27/23); 366 So. 3d 47.
[71] La. Civ. Code Ann. art. 2438 (2023); Brief for Defendant-Respondent at 11, Wederstrandt v. Kol, 2022-01570 (La. 06/27/23); 366 So. 3d 47.
[72] See generally La. Civ. Code Ann. art. 2438; La. Civ. Code Ann. art. 2669; La. Civ. Code Ann. art. 2664; La. Civ. Code Ann. art. 2779; La. Civ. Code Ann. art. 2802; La. Civ. Code Ann. art. 2892; La. Civ. Code Ann. art. 2927; La. Civ. Code Ann. art. 2990.
[73] See Wederstrandt v. Kol, 2022-01570, p. 9 (La. 06/27/23); 366 So. 3d 47, 54.
[74] Id.
[75] Spaht, supra note 49, at 1134 n.20 (discussing the 1981 meeting of the Persons Committee of the Louisiana Law Institute).
[76] Id.
[77] La. Civ. Code Ann. art. 7.
[78] Id.
[79] See id.
[80] See Wederstrandt v. Kol, 2022-01570, p. 11 (La. 06/27/23); 366 So. 3d 47, 55.
[81] Id.
[82] Id.
[83] Id.
[84] Id. at 51.
[85] Id.
[86] La. Civ. Code Ann. art. 9.
[87] La. Civ. Code Ann. art. 86.
[88] Wederstrandt, 366 So. 3d at 51; La. Civ. Code Ann. art. 87.
[89] Wederstrandt, 366 So. 3d at 52.
[90] La. Civ. Code Ann. art. 94.
[91] Wederstrandt, 366 So. 3d at 52.
[92] International Paper Co., Inc. v. Hilton, et al., 2007-290, p. 14-15 (La. 10/16/07), 966 So. 2d 545, 558.
[93] Wederstrandt, 366 So. 3d at 52.
[94] Id.
[95] Id.
[96] La. Civ. Code Ann. art. 1915. “This title” refers to Title IV. of the Civil Code titled “Conventional Obligations or Contracts.”
[97] See La. Civ. Code Ann. art. 1915; Wederstrandt, 366 So. 3d at 53.
[98] Book III, Title IV of the Civil Code is titled “Of Conventional Obligations.”
[99] Wederstrandt, 366 So. 3d at 53.
[100] La. Civ. Code Ann. art. 13.
[101] In pari materia literally means on the same subject or matter. It is a doctrine in statutory construction that statutes that are in pari materia must be construed together.
[102] La. Civ. Code Ann. art. 1914.
[103] Wederstrandt, 366 So. 3d at 53-54.
[104] Id. at 54.
[105] Id.
[106] Id.
[107] Id. (citing Katherine Shaw Spaht, Revision of the Law of Marriage: One Baby Step Forward, 48 La. L. Rev. 1131, 1134, n.20 (1988) (discussing the 1981 meeting of the Persons Committee of the Louisiana Law Institute)).
[108] Id.
[109] Id. (citing Katherine Shaw Spaht, Revision of the Law of Marriage: One Baby Step Forward, 48 La. L. Rev. 1131, 1134, n.20 (1988) (discussing the 1981 meeting of the Persons Committee of the Louisiana Law Institute)).
[110] Id.
[111] Id.
[112] Id.
[113] Id.
[114] Id.
[115] La. Civ. Code Ann. art. 2030.
[116] Wederstrandt, 366 So. 3d at 54.
[117] Id. at 54.
[118] Id. at 55 (citing Colvin v. La. Patient's Comp. Fund Oversight Bd., 2006-1104, p. 6 (La. 1/17/07), 947 So. 2d 15, 19; Moss v. State, 2005-1963, p. 15 (La. 4/4/06), 925 So. 2d 1185, 1196.).
[119] Id.
[120] Id.
[121] Id.
[122] Id. (Weimer, C.J., dissenting).
[123] Id.
[124] Id.
[125] Id.
[126] Id. at 55-56.
[127] Id. at 56.
[128] Id. at 57 (Crain, J., dissenting).
[129] Id.
[130] Id.; See La. Civ. Code Ann. art. 88; La. Civ. Code Ann. art. 90; La. Civ. Code Ann. art. 91.
[131] Wederstrandt, 366 So. 3d at 57 (Crain, J., dissenting).
[132] Id. at 59.
[133] Id.
[134] Id.
[135] Id.
[136] Id.
[137] Id. at 52 (majority opinion).
[138] Id. at 52-53.
[139] La. Civ. Code Ann. art. 7.
[140] Colvin v. La. Patient's Comp. Fund Oversight Bd., 2006-1104, p. 6 (La. 1/17/07), 947 So. 2d 15, 19; Moss v. State, 2005-1963, p. 15 (La. 4/4/06), 925 So. 2d 1185, 1196.
[141] Wederstrandt, 366 So. 3d at 54 (citing Katherine Shaw Spaht, Revision of the Law of Marriage: One Baby Step Forward, 48 La. L. Rev. 1131, 1134 (1988) (discussing the definition of a marriage contract.))
[142] La. Civ. Code Ann. art. 94.
[143] Wederstrandt, 366 So. 3d at 58 (Crain, J., dissenting).
[144] Id. at 49 (majority opinion).
[145] La. Civ. Code Ann. art. 86.
[146] See La. Civ. Code Ann. art. 2030; La. Civ. Code Ann. art. 7.
[147] La. Civ. Code Ann. art. 7.
[148] La. Civ. Code Ann. art. 2030.
[149] See La. Civ. Code Ann. art. 7; La. Civ. Code Ann. art. 94; La. Civ. Code Ann. art. 2030.
[150] See Wederstrandt v. Kol, 2022-01570, p.5 (La. 06/27/23), 366 So. 3d 47, 59 (Crain, J., dissenting).
[151] See id.; La. Civ. Code Ann. art. 94.
[152] A Latin term literally meaning "the expression of one thing is the exclusion of the other." This is a common law principle for construing legislation which holds that a syntactical presumption may be made that an express reference to one matter excludes other matters.
[153] Wederstrandt, 366 So. 3d at 58 (Crain, J., dissenting).
[154] Id.
[155] See La. Civ. Code Ann. art. 7.
[156] Wederstrandt, 366 So. 3d at 55 (majority opinion) (citing Colvin v. La. Patient's Comp. Fund Oversight Bd., 2006-1104, p. 6 (La. 1/17/07), 947 So. 2d 15, 19; Moss v. State, 2005-1963, p. 15 (La. 4/4/06), 925 So. 2d 1185, 1196).
[157] See La. Civ. Code Ann. art. 7.
[158] Wederstrandt, 366 So. 3d at 59 (Crain, J., dissenting).
[159] Id.
[160] Spaht, supra note 49, at 1134 n.20 (discussing the 1981 meetings of the Persons Committee of the Louisiana Law Institute).
[161] Wederstrandt, 366 So. 3d at 57 (Crain, J., dissenting).
[162] Spaht, supra note 49, at 1134 n.20 (indicating that general obligations article can be applied to the contract of marriage); Wederstrandt, 366 So. 3d at 55 (majority opinion) (holding that article 94 is exclusive and opting not to turn to obligations code articles.).
[163] See Spaht, supra note 49, at 1134 n.20 (indicating that general obligations article can be applied to the contract of marriage.).
[164] See Wederstrandt, 366 So. 3d at 54.
[165] See id.
[166] Id. at 57 (Hughes, J., dissenting).
[167] Id.
[168] Id. at 54 (majority opinion).
[169] See id. at 55.
[170] Id. at 55 (holding “[w]e specifically note that it is within the province of the legislature to decide whether to expand the list of legal impediments to a marriage contract and thus not only render this particular act (as alleged) to be a criminal one but also one that constitutes an impediment of marriage”).
[171] See generally La. Civ. Code Ann. art. 7; La. Civ. Code Ann. art. 2030.
[172] See Spaht, supra note 49, at 1134 n.20
(indicating that general obligations article can be applied to the contract of marriage.).
