So much has changed in recent years as far as legal acceptance of same-sex relationships is concerned. Today, several states have allowed same-sex relationships and marriages, following the Supreme Court's ruling in 2015, legalizing same-sex marriage across the country. Even with the passing of the law, there are so many legal issues that surround gay and lesbian marriages that a person wanting to settle down with the love of their life would want to understand. There are legal matters that you would also want to know if you are having a problem in your same-sex marriage and you would want it solved legally. For such issues, we invite you to contact the San Diego Family Law Attorney for help.
California Laws on Same-Sex Marriage
Like most states, California allows marriages between same-sex couples and just like all other marriages, same-sex couples can be granted a divorce if they have resided in California for at least six months or if they were wedded in the state and are unable to get divorced where they reside.
Same-sex unions have been marred with controversies across the country. Just the same way every state sets its own laws to govern marriage suitability within its locality, laws governing same-sex marriage are also different from one state to the other.
In California, same-sex marriage legislation has come a long way and in the year 2008, the state's Supreme Court ruled over the injunction on same-sex unions, stating that such a ban would violate the state's constitution. After the Supreme Court's ruling, gay couples are now allowed to follow the same procedure to marry as the opposite-sex couples do. Couples seeking to get married will only need to obtain a license to marry from a county clerk after they have filled in an application form showing their picture and ID to prove that they both are of legal age. The license obtained is valid for ninety days. To get married in California, you do not have to be a state's residence, which explains why same-sex-couples from other states come to marry in California.
The state law does not require gay couples who were wedded in 2008 before the Supreme Court’s ruling to remarry as these marriages are recognized as ‘still binding’. The state also accepts same-sex marriages that were done in other states as valid.
Registered domestic partnerships are also accepted in California, from same-sex pairs who have registered their relationship even though they are not married. If such couples want to get married, they will not be required to dissolve their partnerships first.
What Constitutes a California Same-Sex Marriage?
Today in California, same-sex marriage is allowed but only under certain conditions:
Marriage consent
Individual consent must be there for the marriage to take place. For approval to be granted, both participants must freely get into the marriage, without one person or other people coercing or forcing the other or the couple to get married. A family law attorney will seek to find if both parties have clear intentions to marry. This way, there will be no mistakes or misunderstandings in the nature of the union. In California, no marriage should be conducted without the full consent of both parties. The couple should be willing to express their consent in the presence of the authority that will solemnize their marriage or witnesses as required by the law.
Marriage legal capacity
For a person to be considered as having a capacity to get into a same-sex marriage relationship, they must be of a sound mind and also be capable of understanding and appreciating the type of the union they intend to have. This requirement, however, does not prevent any person who is mentally ill from marrying. California law provides that as long as the person understands their marital obligation and their duties to their partner, they will be considered as having a sound mind and thereby having the legal capacity to get married. Note that, a person's physical inability to consummate their union is not enough reason to stop them from getting married.
Legal age
In all types of marriages, age is an additional feature to consent. In all states, there is an age limitation, below which a person cannot get married. Both parties must be of legal age before they are legally married. When it comes to same-sex marriage in California, the legal age of 18 years at the minimum is what is accepted, though the state allows a minimum age of 16 years with parental consent.
Once all these requirements have been met, the couple intending to marry can proceed to get a marriage license as per the procedure of other marriages. The certificate should be obtained from a county clerk before the marriage takes place and is valid for 3 months from the day it was issued. With that strict timeline, it is important for a couple to get married within that period of time so that their marriage and the license will be valid. Once the couple gets married, the marriage license should be signed, and then returned to the issuing county clerk for filing. This should be done within ten days after the marriage ceremony.
There are some marriage restrictions one must consider before thinking about getting married in the state of California. Some of these restrictions prevent a person from marrying anyone that they want. You cannot, for instance, marry your blood relatives, who are closer than third cousins. California allows first cousins to marry, but only in their advanced age when they are no longer able to conceive. If the relationship is between an ancestor and their descendant of any degree, whether an uncle, sister, brother, nephew or niece, they cannot get married in the state. The same applies to half-brothers and half-sisters. Note that bigamy and polygamy are also not allowed in California.
Minors and Same-Sex Marriage in the State of California
Minors can get married in California, as long as they are able to give consent to the marriage after receiving the court order permitting them to get married. However, before they can get that order, they are required by law to undergo an intensive non-denominational premarital counseling, which helps them to better understand what marriage entails. This also ensures that they are indeed of a sound mind and they are able to understand what is required of them in the union. The counseling sessions will be paid by the minors as per the court orders.
Once that is done, the minors will be obligated to have a written go-ahead from one or both of their guardians consenting to the marriage. This permission, together with the court directive, is what will grant the minors a go-ahead to get married; therefore, the two documents must be submitted to a court clerk. A copy of the certified order will be needed by the county clerk who will be issuing the couple a marriage license.
All these necessities are very important as they are meant to protect the minors and also keep them safe from some form of abuse or falling for marital contracts that they don’t want to be in.
Basic Steps to Take to Get Married Legally in San Diego
If you are of legal age and you satisfy the above requirements, you can start by scheduling an appointment with the office of a San Diego county clerk. Applications are readily available and can be completed in advance to speed up the process. Note that both parties must appear before the county clerk in person, each with their photo ID issued by the government.
At the County clerk's office, the couple will be required to submit the filled application form and pay the fee for a marriage license. With that, you should get your license that will have a validity of ninety days from that day of issuance. There are requirements to get the marriage license, such as proof of your age legality and the final divorce decree if you have been divorced. The decree should come with a judge's signature and show the date of your marriage termination.
With the license, the couple can proceed to schedule a marriage ceremony, the date of which should be within those ninety days.
Note the following:
- The proof of residency and blood tests plus health certificates will not be required when the couple is applying for a marriage license
- There are mainly two types of marriage licenses; the regular and the confidential one. The fee paid to obtain these certificates will differ. A regular license will be charged about $50 while a confidential one will cost about $55
- With a public license, the couple can be married anywhere within the state of California. You only need at least two witnesses at your wedding and the record for that marriage will be obtainable by the public
- A confidential marriage license, on the other hand, is issued out to parties who have been living together and are getting married in the county from where the license is being obtained. In this kind of marriage ceremony, there will be no need for witnesses and the record for that marriage will only be obtainable by the couple
Who Can Perform a Same-Sex Marriage in California?
There are several qualified persons that can perform a same-sex marriage in the state of California. These people must be of legal age. They are:
- A minister, rabbi or a priest in any spiritual denomination
- A judge, who is either active or retired
- A commissioner for civil marriages (retired or active)
- An active or retired court commissioner of records, or an assistant court commissioner of records (active or retired)
- A member of your family or a friend of your choice can be commissioner for that special day of your wedding. He/she should complete a short registration form and pay a small fee, and then he/she can be allowed to perform your marriage
Divorce in a Same-Sex Marriage
Same-sex divorce in California is conducted just like any other divorce proceeding. If the couple wants to get divorced in the state, the state law requires that they must have lived here for at least six months before filing for divorce. If the couple was married in California but later moved to live in a state that does not recognize their marriage, which means that they cannot be divorced in that state, the couple can come back to California to obtain their divorce even if they do not meet the residency requirement.
Like every other dissolution of marriage, same-sex divorce proceeding will be met by very strict rules, which pertain to the circumstances leading to divorce and to whom those circumstances apply. There are basically three options for a gay couple wishing to end their marriage:
Marriage annulment: This is done through a court order which is issued after a proceeding that dissolves the marriage. Annulment is different from divorce in that the couple has an option of ending the marriage as if it never existed or as if it was invalid, to begin with.
Divorce: This is a legal termination or dissolution of a marriage and can be done by either the court or any other competent agency.
Separation: This works just the same as divorce but the marriage is not legally terminated. Like in divorce, the couple will make decisions on how they will live separate lives. Such things as alimony, payment of child support and property division will be agreed upon, but the couple will still remain married.
Generally, divorce is a bit complicated, even for same-sex couples. It is good to seek the help of an experienced family law attorney to ensure that you are following proper procedures for a smoother process.
Same-Sex Domestic Partnerships
Domestic partnerships and civil unions are quite similar. They both entail a type of relationship that is accepted legally and which offers certain rights to both straight and gay couples who are living together and would wish to stay unmarried. The couple may be living together and unmarried because maybe their matrimony is forbidden. Civil unions are accepted in most states but only a few states and cities accept domestic partnerships. Such cities include San Diego.
In San Diego, gay couples wishing to live together without getting married are allowed to do so by law. In addition to that, the couple is eligible for some domestic partnership benefits in some companies or organizations. Such benefits are, for example, service benefits. In the state of California for instance, couples in domestic partnerships including same-sex partners get to enjoy nearly all spousal rights that are enjoyed by legally married couples at the state-level.
To get into this domestic partnership kind of relationship, the couple has to be two consenting adults who have agreed to share their lives in a committed and intimate relationship. The basic requirements for one to get into this kind of relationship include:
- The couple should have a mutual home
- The two consenting adults must be of legal age, which is 18 years of age in California
- The couple must each file a declaration for their domestic partnership
- The couple should not be related by blood in the same way that they are prohibited from marrying each other
- None of the two should be in a married relationship with another person or in another kind of domestic partnership. If one or both were in another relationship, they will be required to terminate those other relationships before getting into a domestic partnership
- The two must be of the same sex. If not, one of the partners must be above 62 years of age
If the couple meets the listed requirements, they will be given the go-ahead to start living together as domestic partners, enjoying almost all rights enjoyed by people in a real marriage in the state. Some of these rights include inheritance rights, access to laws governing domestic partnerships, state’s spousal benefits such as tax relief, workers compensation, and spousal testimonial benefit.
A couple in a domestic partnership is, however, not considered married. If the couple wishes to marry, they must go through all the official legal processes for any couple wishing to get legally married in California. When the time to get married comes, the couple will not be required to terminate their partnership. This is because the law permits an individual to be in both marriage and in domestic partnership relationships at the same time, as long as they are in both relationships with the same person.
Consult a Family Law Attorney Near Me
The laws pertaining to same-sex marriage are continuously changing. The couple’s rights to marry and to adopt as well as to obtain benefits are subjects that are a little bit complicated for a couple that wants to get married and enjoy their marriage. Same-sex marriage laws are, however, very clear in San Diego and with the help of the San Diego Family Law Lawyer, you can understand your options and the procedures involved. Call us at 619-610-7425 for expert advice on any issue surrounding same-sex marriage and divorce in San Diego, California.
