Marriage – Legally what constitutes a valid marriage?
Many couples marry in a church, take religious vows, and consider their marriage a religious contract. But when faced with divorce, many of these couples are surprised to find out otherwise.
In the eyes of California law, we must first understand that the law sees marriage as a personal relationship arising out of a civil action with civil legal obligations. During the marriage, many couples are unaware of these civil obligations and/or do not concern themselves with them. But at the time of divorce, these civil obligations assume a much greater importance.
When a marriage falls apart and divorce is imminent, couples are filled with sadness, apprehension, and disappointment. These are all psychological emotions that are very normal reactions to a failed marriage.
Once one or both spouses seek legal advice about a divorce and the marriage obligations, they soon realize that California law has many civil laws about the marriage and divorce.
For now, let’s take a look at where it all started and what it takes to have a valid marriage.
Validity of a Marriage – Family Code Sections 300-426
Family Code in summary states that for a marriage to be valid, there must be consent, issuance of a marriage license, and solemnization.
Consent: Adults must have the capability to consent to and consummate marriage. Minors must have the capability of consenting to and consummating marriage upon obtaining both a court order granting permission to marry and written parental consent of at least one parent or guardian of each underage person.
Marriage License: Family Code §350 (a) states in part, “Before entering a marriage or declaring a marriage . . . (valid) the parties shall first obtain a marriage license from a county clerk.”
Contents of the marriage license shall include: certificate of registry, marriage license statement, and addresses of applicants (a post office box is sufficient). The marriage license shall include an affidavit which applicants must sign stating they received the brochure on marriage from the State Department of Public Health.
The marriage brochure from the State Department of Public Health shall include:
(a) Information concerning the possibilities of genetic defects and diseases and a listing of centers available for the testing and treatment of genetic defects and diseases;
(b) Information concerning acquired immunodeficiency syndrome (AIDS);
(c) Information regarding domestic violence and that emotional and physical abuse are against the law; and
(d) Information about name change upon solemnization of the marriage.
Identification for a marriage license shall be an authentic photo identification acceptable to the county clerk as to name and date of birth. A credible witness or affidavits may be used in lieu of authentic photo identification.
Validating the Marriage- No particular form of ceremony is necessary but the parties shall declare in the physical presence of the person solemnizing the marriage and necessary witnesses that they take each other as spouses. The person solemnizing a marriage shall require the presentation of the marriage license.
Persons authorized to solemnize or validate a marriage as per the family code are:
(a) A priest, minister, rabbi, or authorized person of any religious denomination who is 18 years of age or older;
(b) A judge or retired judge;
(c) A commissioner of civil marriages of a court of record in this state; or
(d) A marriage may also be solemnized by any of the following persons who are 18 years of age or older:
(1) A Member of the Legislature or Congress of the United States who represents, or former member who represented, a district within this state;
(2) A person that holds or formerly held an elected office of a city, county, or city and county;
(3) A city clerk of a charter city or serving in accordance with subdivision(b) of Section 36501 of the Government Code, while that person holds office.
Any compensation received by a person solemnizing the marriage shall be reasonable, including payment of actual expenses.
The person solemnizing a marriage shall sign and print or type upon the marriage license a statement in the following:
(a) The date including month, day and year, and place of marriage;
(b) The printed names, signatures, and mailing addresses of at least one and no more than two witnesses to the ceremony;
(c) The official position of the person solemnizing the marriage; and
(d) The name and mailing address of the person solemnizing the marriage.
Recording the Marriage License: The person solemnizing the marriage shall return the license to the county recorder of the county in which the license was issued within 10 days after the ceremony.
Unrecorded Marriage License: In the event there is no record of the marriage or that the license had not been recorded, the parties may take action to validate their marriage. The parties may purchase a License and Certificate of Declaration of Marriage from the county clerk in the parties’ county of residence one year or more from the date of the marriage. The license and certificate shall be returned to the county recorder of the county in which the original marriage license was issue.