765.001 Title, intent and construction of chs. 765 to 768.

(1) Title. Chapters 765 to 768 may be cited as “The Family Code".

(2) Intent. It is the intent of chs. 765 to 768 to promote the stability and best interests of marriage and the family. It is the intent of the legislature to recognize the valuable contributions of both spouses during the marriage and at termination of the marriage by dissolution or death. Marriage is the institution that is the foundation of the family and of society. Its stability is basic to morality and civilization, and of vital interest to society and the state. The consequences of the marriage contract are more significant to society than those of other contracts, and the public interest must be taken into account always. The seriousness of marriage makes adequate premarital counseling and education for family living highly desirable and courses thereon are urged upon all persons contemplating marriage. The impairment or dissolution of the marriage relation generally results in injury to the public wholly apart from the effect upon the parties immediately concerned. Under the laws of this state, marriage is a legal relationship between 2 equal persons, a husband and wife, who owe to each other mutual responsibility and support. Each spouse has an equal obligation in accordance with his or her ability to contribute money or services or both which are necessary for the adequate support and maintenance of his or her minor children and of the other spouse. No spouse may be presumed primarily liable for support expenses under this subsection.

(3) Construction. Chapters 765 to 768 shall be liberally construed to effect the objectives of sub. (2).

History: 1979 c. 32 ss. 48, 92 (2); 1979 c. 175 s. 53; Stats. 1979 s. 765.001; 1983 a. 186.

NOTE: In Wolf, et. al. v. Walker, et. al., 26 F. Supp. 3d 866, the United States District Court, Western District of Wisconsin declared that “Any Wisconsin statutory provisions, including those in Wisconsin Statutes chapter 765, that limit marriages to a `husband' and a `wife,' are unconstitutional as applied to same-sex couples." Affirmed. 766 F.3d 648. U.S. Seventh Circuit Court of Appeals, Case No. 14-2526, issued September 4, 2014. See also Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2071, 191 L. Ed. 2d 953 (2015).

A land contract that required a reconveyance to the husband's parents if he became divorced within 10 years was not against public policy. In re Terrill v. Terrill, 98 Wis. 2d 213, 295 N.W.2d 809 (Ct. App. 1980).

The family code does not preclude an unmarried cohabitant from asserting contract and property claims against the other cohabitant. Watts v. Watts, 137 Wis. 2d 506, 405 N.W.2d 303 (1987).

The obligation of support is imposed under s. 765.001 and is not relieved simply because s. 766.55 (2) (a) may not apply. Sinai Samaritan Medical Center, Inc. v. McCabe, 197 Wis. 2d 709, 541 N.W.2d 190 (Ct. App. 1995), 95-0012.

Under the unique circumstances of the case, including prior residence in a common-law marriage state, the marriage of a Hmong couple who were married in a traditional Hmong ceremony that was not certified by the former Laotian government was valid. Xiong v. Xiong, 2002 WI App 110, 255 Wis. 2d 693, 648 N.W.2d 900, 01-0844.

Under Xiong, a putative marriage is a marriage that 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. Here, the trial court properly found that the parties took part in traditional Hmong marriage rituals and that both of these parties believed they were married as supported by immigration documents in which one party represented that he was the other's husband, a real estate deed was signed by both parties as “husband and wife,” and the the parties submitted joint income tax returns. The Xiong case was not inapplicable because it was a wrongful death lawsuit, rather than a family court action, and the Xiong court's ruling that a putative marriage existed did not depend on its finding that the parties in that case had lived for years in a state that recognized common-law marriage. Xiong v. Vang, 2017 WI App 73, 378 Wis. 2d 636, 904 N.W.2d 814, 16-1281.

As a general matter, whether a marriage is valid is controlled by the law of the place where the marriage is contracted. There is no legal authority for the proposition that the law of the parties' country of domicile should determine the validity of their marriage, rather than the law of the country where the marriage occurred. Xiong v. Vang, 2017 WI App 73, 378 Wis. 2d 636, 904 N.W.2d 814, 16-1281.

Same-sex couples may exercise the fundamental right to marry in all states. The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the 14th amendment couples of the same-sex may not be deprived of that right and that liberty. Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2071, 191 L. Ed. 2d 953 (2015).

A wife's assets could be used to pay for her husband's appointed counsel. United States v. Conn, 645 F. Supp. 44 (E. D. Wis. 1986).

Same-Sex Divorce and Wisconsin Courts: Imperfect Harmony? Thorson. 92 MLR 617.