Understanding California's state statutes concerning marriage is as important during a divorce process as it is for those getting ready to get married. Marriage law in California can be quite complex at points, and this is especially so with underage marriages and other unique situations.
At San Diego Divorce Attorney, we can answer any and all questions you may have about the details of California marriage laws, as well as how that might relate to a divorce, annulment, or legal separation.
Contact us anytime for a free consultation by calling 858-529-5150, and we will be happy to assist you!
Marriage Validity in California
In California, marriage is viewed (in its relation to the state at least) as a "civil contract" establishing a "personal relationship" between two people. Such a contract creates legal obligations both during the marriage and if the marriage should ever break up.
For any marriage to be valid in California, both parties must voluntarily consent to it. It cannot be that anyone was forced into it or threatened into it. Yet, at the same time, mere consent is not enough to establish a legal union. Unless "solemnization" through a marriage license and other requirements occurs, no marriage can be formed in California.
Both parties must also understand the nature of the union they are about to enter into and must be of a sound mind and capable of legally giving consent. Anyone who can understand the obligations that adhere to a California marital relationship is considered to have "capacity" to marry.
Although physical incapacity to consummate a marriage can be grounds for annulment, particularly if the fact was hidden from the other spouse until after the marriage ceremony - such physical incapacity does not prevent one from legally establishing a marital union in California.
In general, both parties getting married have to be adults (18 or older), but there are ways to legally get married as a minor too [see more on that below.]
Also, California recognizes same-sex unions as marriages since the US Supreme Court ruled against the banning of such recognition that was established by Proposition 8.
Marriage License Law in California
You might think that marriage licenses and related laws would be the same in every state, but in reality, there are often important differences here, so it's important to familiarize yourself with some of the basic state "rules."
You get your marriage license from a county clerk. It's not hard to apply for a marriage license, and you can get it issued immediately if you qualify. But you only have 90 days from the date of issue to get married before the license expires, and the license must be turned in to the SAME COUNTY CLERK'S OFFICE that issued it within 10 days after the marriage ceremony.
At that point, the license will be registered by a county recorder and converted into a marriage certificate.
Note that you need not be a California resident to get a marriage license in California and get married there. And a license issued by any county can be used in any other county throughout the entire state.
To apply for a license, you will have to show ID (likely a driver's license, passport, green card, or state ID), and it's a good idea to produce your birth certificates too.
You will have to fill out the full legal names of both of each fiance's parents (with mother's maiden names and the place of birth of all four parents involved).
You will also have to pay a license fee, usually in the range of $45 to $85, depending on which county you apply for the license in. And also understand that some counties will only accept cash to pay for a marriage license.
Unlike some states, California allows cousins to marry, has no wait period for getting married, and requires no blood test.
However, if you were ever married before in the past, you have to show proof of whatever ended the marriage (death, divorce, or annulment.)
Finally, we should mention that if you need a certified copy of your marriage certificate because you lost it or just need an extra one - you will have to get it at the county recorder's office in the California county where you were married.
Who Can Be a Marriage "Officiant" in California?
Not only must a legal marriage in California be based on a proper marriage license/certificate, it also matters who handles the ceremony. Not just anybody can marriage people.
There are a few select counties in California where even a relative or friend can officiate at a (civil) marriage - but a "church wedding" would require someone else. But here are the usual types of (adult) persons who can officiate over a California wedding:
- A recognized religious leader like a pastor, priest, or rabbi.
- A current or retired California judge, commissioner, or assistant commissioner.
- A current or retired federal judge.
- A state or federal elected official of California.
Confidential Marriage Licenses
In California, you can apply for a "confidential" marriage license, but it can only be used in the county where it is issued. This kind of license keeps the marriage off the public record, but it is just as legal as any other California marriage.
The difference is that it takes a court order to inspect a confidential marriage license for any reason, whereas other marriage licenses are open to public inspection automatically at all times and without any special court order being needed.
The reason for this type of marriage license/marriage dates back to an earlier time (from 1878). It was meant to allow people who had been living together to discreetly get legally married without be exposed to potential public embarrassment.
Sometimes, there were not churches or courthouses nearby to solemnize a marriage in a rural area. But mostly, it was a matter of people who had been "shacking up" officially finally getting married.
Besides "respectability" and religious reasons, inheritance rights, property rights, the status of children as no longer "illegitimate," and other issues motivated people to get a confidential marriage license and use it.
As it became socially acceptable to live together unmarried in the 60's and 70's, fewer and fewer people used confidential marriage licenses. Then, a law-change allowed non-ministers to officiate over confidential marriages and the number of "confidential marriages" spiked till it was a third of all California marriages in the 80's.
Unfortunately, polygamy illegal underage marriages, and Social Security fraud schemes took advantage of the confidentiality these types of marriages provide and the state almost abandoned them in a 1984 vote.
But instead, they remain an option - and about 20% of Californians take that option. People seemed to like the idea that no one could just "snoop" at their marriage license. But it does mean that you need a court order to get a marriage certificate examined or get a certified copy of one when you want to - but we at San Diego Divorce Attorney can take care of that for you if you need that service.
Underage Marriages in California
Under ordinary circumstances, you can't get married in California unless you are an adult (18 years old or older - both spouses). And for this reason, many counties will require a certified copy of both fiance's birth certificates before allowing the marriage - this will definitely be required one/both partners are under 18.
And the presence and written permission of at least one parent or legal guardian must also be had before a minor can marry in California.
Further, the couple must complete marriage counseling classes approved of by the state, and a court order must be issued to allow for the underage marriage.
Note you have to pay a fee, in many cases, for the marriage counseling; and the court will likely determine which counseling you use (it must be "non-denominational").
Also note that a certified copy of parental written permission must be filed at the County Clerk's Office, along with the court order allowing the underage marriage.
Unlike in some other states, there is no minimum age limit before you can get married, just the requirements mentioned above if you are under 18.
Very few people actually take advantage of California's underage marriage laws and get married before they are 18. The main reason it's allowed, actually, is so that underage pregnant mothers can marry and prevent their child from being born out of wedlock. And since states that disallow underage marriage make exceptions for the same sorts of cases, California's laws aren't much different here than other states on a more "practical" level.
And finally, realize that parental consent requirements can be waived in exceptional cases where a parent has abandoned his/her family, where both parents are deceased and there is no legal guardian, or where both parents are out of the country.
Other Peculiarities of California Marriage Law
Here are a few miscellaneous peculiarities about California's marriage laws that you should also be aware of:
- California does not have common law marriages, in the ordinary sense, unlike a number of other states. You have to have the marriage "solemnized" for it to be legally valid. However, if a common law marriage is recognized by another state in which it "occurred," California may well recognize it should that couple relocate to California.
- Even after the overturning of Prop 8 and the recognition of same-sex marriages in California, the "civil unions" or "domestic partnerships" law is still on the books and in force. Thus, same-sex couples can apply either for a domestic partnership or for a marriage license - and it makes almost no legal difference which one they choose.
- In California, US military members ONLY can get married "by proxy." If they are stationed far away, they can have military personnel stand in for the Armed Forces member to be married, representing him/her, at the wedding ceremony.
About Name Changes
Another interesting facet of California marriage law is that no one has to have his/her last name changed unless he/she wants to as a result of the marriage.
On the other hand, both marriage partners can have a name change if they wish.
And it can be the middle name, last name, or both, that is changed. Variations include:
- Adopting the last name of one's spouse (current or birth-name, if they differ.)
- Combining a birth and current last name of one's spouse.
- Combining different last names with a hyphen.
- Making one's spouse's last name one's new middle name.
- Making your current middle and last names a new, hyphenated middle name, while something else becomes your new last name.
You have to decide on such name changes on your marriage license. You can't simply change your name later without going through a legal process to do so. But neither does the last-name decision or middle-name decision on a marriage license cancel out the normal right to legally change one's name in California through the usual process after the marriage, if desired.
If a clerical error was made, you can go through a simpler, separate process, however, to correct that.
Why Choose San Diego Divorce Attorney
At San Diego Divorce Attorney, we handle all manner of family law matters, not just divorces. But oftentimes, in a divorce, legal separation, or annulment case, there may be challenges made by one spouse or the other to the validity of the marriage or a counter-defense against such a claim.
As whether or not your marriage was valid to begin with affects the process you go through when ending the relationship - and can affect alimony and property division issues (though not child support, child custody, or visitation rights), it is crucial you have a lawyer handling your case who understands California marriage law as much as divorce law.
And if you are looking to get married and you want to make sure it is legally valid, such as with an underage marriage or confidential marriage, you can also greatly benefit from an experienced family law attorney.
Furthermore, we at San Diego Divorce Attorney can help you formulate a pre or post nuptial agreement, if desired, that regulates property division and other issues in the event of the marriage ending (by death or divorce) and ensure it is legal sound and enforceable.
Contact Us Today for Help
At San Diego Divorce Attorney, we have the expertise it takes to handle all cases related to California marriage, divorce, and other family law matters.
We stand ready to answer all of your important questions and to give you a free, no-obligation legal consultation - feel free to contact us today by calling 858-529-5150!
