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Marriage Law

In California, marriage is a legal civil pact entered between two people who are free and have the capability to consent to marriage. When it comes to the issue of consent, both persons ought to enter the marriage freely and without any coercion by one of the partners or any other individual. For an individual to be considered to be capable of marriage, he or she must be of sound mind and must understand the nature of the union.

This prerequisite, however, does not stop an individual from marrying on account of having any kind mental illness. The person with a mental illness only needs to able to understand their commitments to the individual they are marrying.  Inability to consummate the marriage physically cannot be used to show that an individual does not have the capacity. Marriage in California is a union that is permanent and can only be dissolved by a judicial process and not just by the spouses’ consent. For a marriage to meet California marriage laws threshold, it should be licensed, witnessed, and registered.

The state of California does not recognize common law marriages that take place inside its jurisdictional frontiers. Cohabitating for whatever number of years has no legal significance and the partner does not bear the rights in property by both partners while living together.

California Law on Marriage and Living Together

People live together even when they are not legally married. In California, the high cost of living appears to inform most of these arrangements because of the financial benefits that come with cost sharing. Before you decide to move in together with your partner, be it in marriage or cohabitation, it’s prudent to evaluate the legal implications of the union. This, for instance, involves the issue of property ownership, the criteria to use when applying parental rights (if children are involved), or whether the couple is entitled to benefits similar to married spouses or domestic partners. These issues are likely to come up, especially if the couple later separates.

Generally, for a marriage to be considered legal, a marriage license must be issued, followed by a solemnization and authentication, and finally a recordation in the county where the verification and formalization occurred. The elements must be followed in this order. The couple seeking to get married must appear together before a county clerk’s office representative for the issuance of the marriage license. No other person can receive the license on behalf of the couple.

The process of solemnization or authentication can be directed by a court commissioner or retired court commissioner of civil marriages, a judge or retired judge, a duly-elected city mayor, a county supervisor, or an authorized religious person of any religious denomination. An official marriage ceremony is not mandatory. What’s important is a declaration by both parties that they take the other party as his or her spouse in the presence of at least two witnesses. The individual formalizing the marriage has a duty to return the completely filled out license within ten days to the county where the license was issued.

Because common law marriages do not involve the issuance of a license and are not registered as required by the law, they are not considered to be valid in California.

However, there is one exemption; If a couple entered into marriage in another state or country that recognizes common law marriage as being valid, before moving to California, their union will be recognized.

Validity of Marriage Laws

Laws governing the validity of marriages in California is can be found in Family Code Sections 300-310. These set of laws direct the issue of marriage and living together and will provide answers to questions on whether a relationship is a valid marriage. California recognizes a valid marriage as one that’s presided over by an official with the power to marry the couple, there’s a marriage license is issued by the county, which is then followed by the issuance of a marriage certificate. Registered domestic partnerships are also recognized in California. Couples in registered domestic partnership will have similar protections and rights as married couples under the California community property law.

In some situations, a couple might live together with the belief that their marriage is valid, only to come and realize later on (especially at the time of separation) that it’s invalid and not recognized. For instance, a couple who took their vows and have continued to live together as husband and wife for many years, have presented themselves to the public as man and wife, have children together, and filed joint tax returns, may come to realize that their marriage is not valid just because they forgot to obtain their marriage certificate. In other cases, the individual who administered the whole marriage process did not have the authority to do so, and this means that under the law, their union is invalid.

Void and Voidable Marriages

A couple could satisfy all the procedural prerequisites needed to get married and still find that their marriage is void or voidable. If one or both parties getting married were people getting married were already in another legally recognized marriage, then that marriage is considered to be void or voidable. This scenario could happen unintentionally in a situation where one partner was under the mistaken conviction that they were already divorced from their former spouse. But also, there are dishonest partners who knowingly conceal the information on their former marital status from their current spouses. Since California does not recognize bigamy, multiple marriages are not allowed.

In some cases, the couple can be deemed to be putative spouses if, because of some mistakes, the marriage cannot be categorized as either valid, void or voidable. This is to mean that the couple will be considered married and community property laws will apply in their union. However, if the mistake that invalidates their marriage was intentional, then the spouses will not have the right to invoke the doctrine of putative spouse. For instance, if a partner intentionally marries again before divorcing their former spouse or intentionally fails to acquire the marriage certificate, then he or she cannot be able to claim the putative spouse status.

The community property law presumption will not be applicable if the court considers the marriage to be invalid, void, or voidable. The court will have the discretion to determine how the parties will share the assets. In most cases, the greater part of the estate to will go to the partner who essentially bought the items, just like in a real estate partition action.

Instances in which a marriage is voidable include when the union is between brothers and sisters, uncles and nieces, half-brothers and sisters, and aunts and nephews. A marriage between a couple where one of them is in an already existing and not terminated valid marriage is outrightly void. A bigamous marriage could also be voidable if a former spouse is not present and their whereabouts have not been known for at least five successive years before the subsequent marriage, or there is good reason to assume that the person was dead. A marriage involving a minor or an adult of unsound mind is also voidable. Under California marriage law, if one spouse is deceived or coaxed into marriage, the court could find such a marriage voidable.

If an individual is in two successive marriages, the latter is presumed to be valid. In this case, the individual assailing the marriage bear the burden of proving that the former marriage had not been terminated by death or judicial dissolution. Married persons have the right to live together, but this is not a requirement for a marriage to be valid. For instance, spouses may live in different states or countries for employment reasons and this does not mean that their marriage is terminated. Also, those who go through legal separation may choose to live separately, but they still maintain their marital status.

Minors and Marriage in California

Minors are permitted to marry in California as long as the minor is able to consent and understand what it means to be married as well as the responsibilities that come with marriage. Such marriages can only push through if the court grants permission for the underage person to marry.

Before the order is obtained, the court may ask the minors to undergo a non-denominational premarital counseling. Since this programs may quite expensive for the underage partners, the court may demand a certain fee from the minors. In order to marry, parental consent is required in the form of written permission from at least one parent of one or both minors. The court order granting authorization to marry and the written permission from the parents should then be filed with the court clerk in order to obtain a marriage license.

Prenuptial Agreements

There are a few options that couples living together in California have when it comes to entering formal agreements. For one, they enter into a Living Together or Cohabitation Agreement. This is contractual agreement that is not related to marriage but can be used to clarify the rights and responsibilities of those cohabiting.  Conversely, if a cohabitating couple is contemplating marriage at some point in time, they may want to consider creating a Prenuptial or Premarital Agreement under Family Code sections 1610-1617. This agreement is also used to clarify rights and responsibilities, but it only becomes effective once the couple enters into a valid marriage. These agreements must be voluntary, in writing and signed by both parties.

Changing Your Name after Marriage

In California, no one is under any obligation to change their name after marriage although many people choose to do so for a number of reasons. The most common reason is to symbolize the coming together of two people to form a single family unit. Today, however, many women retain their original surname and there are also other cases where men adopt their wives’ name. Also, there are individuals who change their name when they are married but chose to retain it even after a divorce. Either they don’t want to go through the process once again or they just don’t want to cause confusions. But there those who drop their spouse’s surname after a divorce as a way of showing that they have “moved on.”

The Basics of Changing Your Name

Generally, courts will accept all name change petitions, with a few exceptions. For instance, one cannot be allowed to change their names in order to avoid criminal or civil liability. Name change is also not allowed if it’s done with the intention of causing confusion. Your name cannot be changed if you choose a name that is obscene, offensive, intimidating, or racist.

Changing a name in California is a legal matter that involves legal processes. You’ll be required to inform the government and financial organizations to effect the change on your birth certificate, passport, or Social Security card. In addition to the federal government and your state’s DMV, you’ll also notify other institutions, including schools, employers, utilities, companies, and others.

Marital Property Laws

Nearly all property acquired in the course of marriage is considered community property. This means that it belongs to neither spouse and in case of divorce, each spouse will receive an equal share. However, property that was acquired before the marriage, after a legal separation, or as inheritance is considered to be separate property and remains as so, unless the owner decides to make it marital property.

Same-Sex Marriages

After the overturning of Proposition 8 which barred same-sex marriages, California legalized same-sex marriage. In order to get married, couples in same-sex marriages must meet similar conditions as those provided for heterosexual marriages. All the laws that apply to heterosexual marriages also apply to same-sex marriages and this means that the rights and legal obligations are also the same.

Contact San Diego Family Law Attorney

There are important legal and personal considerations that all couples should discuss in marriage. If your marriage has been considered invalid, void, or voidable, or you’re contemplating a legal separation or divorce, San Diego Family Law Attorney can help. It can be difficult to navigate the legal process but you can rely on our extensive knowledge and experience in achieving your objectives. We also help those planning to get married to draft prenuptial agreements. We are seasoned trial attorneys and skilled negotiators and whatever legal issue you’re experiencing; we can help you secure a favorable outcome. To schedule a free initial consultation with one of our attorneys, please do not hesitate to call us at 619-610-7425.

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