Saturday, December 5, 2009


With the news of Tiger Woods' alleged infidelity, people are speculating about the possible consequences. In this article, DONALD F. CONVISER, a Certified Family Law Specialist, owner of WARNER CENTER LAW OFFICES in Woodland Hills, California, in the San Fernando Valley, serving divorce and family law clients in the courts of Los Angeles and Ventura counties for over 35 years, explores California case law and statutory law relating to to infidelity in a marriage.

In Marriage of RAMIREZ & LLAMAS (2008) 165 Cal.App.4th 751, the appellate court held that a party's intent not to observe the obligation of sexual fidelity can support a finding of nullity based on fraud, and held that an innocent party to an invalid marriage may obtain relief as a putative spouse [including division of property acquired during the "union" as community or quasi-community property] if that party believed in good faith that the marriage was valid.

A marriage is voidable and may be adjudged a nullity if the consent of either party was obtained by fraud [FAMILY CODE Section 2210(d)].

A marriage may be annulled for fraud only in an extreme case where the particular fraud goes to the very essence of the marriage relationship [Marriage of MEAGHER & MALEKI (2005) 131 Cal.App.4th 1, 3].

The fact represented or suppressed to induce consent to marriage will be deemed material if it relates to a matter of substance and directly affects the purpose of the party deceived in entering the marital contract [Marriage of HANDLEY (1960) 179 Cal.App.2d 742].

The fraud relied upon must be such as directly defeats the marriage relationship (and not merely such fraud as would be sufficient to rescind an ordinary civil contract) [Marriage of MEAGHER & MALEKI, supra, at 6-7].

Fraudulent intent not to perform a duty vital to the marriage state must exist in the offending spouse's mind at the moment the marriage contract is made [Marriage of BRUCE (1945) 71 Cal.App.2d 641, 644].

Annulments based on fraud have historically only been granted in cases where the fraud relates in some way to the sexual, procreative or child rearing aspects of marriage.

Where the offending party does not have the intent (or conduct) to be unfaithful at the time of the wedding, that marriage cannot be anulled on the basis of subsequent infidelity.

In Marriage of DIOSDADO (2002) 97 Cal.App.4th 470, the appellate court held that a contract between the husband and wife providing for the payment of liquidated damages [in that case, $50,000] in the event that one of them is sexually unfaithful to the other is unenforceable.

FAMILY CODE Section 2310 provides for dissolution of marriage based on irreconcilable differences which have led to an irremediable breakdown of the marriage. The Appellate Court in DIOSDADO addressed Marriage of WALTON (1972) 28 Cal.App.3d 108, 119, in which the trial court granted a dissolution of marriage at husband's request, over wife's objections - wife sought but was not granted a Legal Separation. In WALTON, the Appellate Court stated: "After thorough study, the Legislature, for reasons of social policy deemed compelling, has seen fit to change the grounds for the termination of marriage from a fault basis to a marriage breakdown basis."

In DIOSDADO, the appellate court stated: "Contrary to the public policy underlying California's no-fault divorce laws, the agreement between wife and husband attempts to impose a premium for the emotional angst caused by husband's breach of his promise of sexual fidelity. The Family Law court may not look to fault in dissolving the marriage, dividing property, or ordering support. Yet this agreement attempts to penalize the party who is at fault for having breached the obligation of sexual fidelity, and whose breach provided the basis for terminating the marriage. This penalty is in direct contravention of the public policy underlying no-fault divorce.

This writer takes issue with the DIOSDADO opinion, and will address his arguments and examples supporting his position in a subsequent blog.


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