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Same Sex Marriage

Federal and state laws concerning same-sex marriage have a relatively brief history that dates back to 1971 when the first related lawsuit was made. Later in 2015, a Supreme Court decision was made legalizing same-sex marriages nationwide. Historically, the accepted definition of marriage in the United States did not include lesbian and gay couples. This lead to passionate same-sex marriage debates, which raged for many decades. As time passed, however, states like California bestowed upon gay and lesbian couples similar rights and responsibilities as heterosexual couples. In the state of California, same-sex marriages became legal after the overturning of Proposition 8 by the United States Supreme Court. Presently, under California marriage law, same-sex marriages are allowed only when certain conditions are met including legal capacity, legal age, and individual consent to the marriage.

What Constitutes Marriage Consent?

For consent to exist, both parties must enter the marriage freely and not be coerced or forced in any form or way to marry. Moreover, the intention to marry must be clear meaning that there should be no mistake or misunderstanding as to the union’s nature. When these conditions are met, then consent exists.

What Constitutes Marriage Capacity?

For an individual to have the capacity to enter into a same-sex union, they must first be of sound mind as well as capable of appreciating and understanding the nature of their intended union. However, this requirement in no way prevents a person who has mental illness from marrying. According to the law, as long as an individual can comprehend their marital obligations to their spouse, then they are presumed to be of sound mind. Additionally, the physical inability of any individual to consummate the marriage does not prevent them from having legal capacity.

What is the Legal Marriage Age in San Diego, California?

Age is an added aspect of marriage consent. The marriage age of consent in California is 18 years while the minimum age that a couple can get married with parental consent is 16 years.

Minors and Marriage in California

California allows minors to get married provided that they are capable of consenting to the union upon receiving a court order that permits them to marry. Before obtaining this order, the minors may be required by the court to undergo non-denominational premarital counseling to make sure that they are in the right mind and understand what they are required of in the marriage. Also, the minors may be required to pay a reasonable fee for the counseling program as set by the court

Additionally, the minors are required to have written permission consenting to the marriage from at least one of their parents. The written permission along with the court order that grants the minors permission to marry should be filed with a court clerk in San Diego. Later, a certified order copy will be required by the respective county clerk to get a marriage license. These requirements are put in place to protect minors and prevent them from abuse or getting into marriages that they do not want.

Requirements for a Marriage License

As per procedure, the couple intending to marry needs to get a marriage license from their county clerk before marriage. A Californian marriage license remains valid for 90 days from the day it was issued. Therefore, it is essential for the couple to get married within this period for their license and marriage to be valid. Once the marriage ceremony takes place as well as the marriage license is completed and signed, it must be returned to the county clerk for filling within ten days. Note that it must be returned to the county clerk’s office of issue.

Can I Marry Anybody I Want?

Some marriage restrictions prevent you from marrying anybody you want. For example, blood relatives closer than third cousins cannot get married in California while first cousins can only get married if they are of advanced age and can no longer conceive. Same-sex marriages are allowed in the state. Californian prohibited marriages include those between an ancestor and their descendant of any degree, uncle and niece, brother and sister (including half-blood), or aunt and nephew. Also, polygamy and bigamy marriages are prohibited.

Same-Sex Marriages from Other States or Jurisdictions

California recognizes marriages from other foreign jurisdictions or states. However, these marriages must be validly made and legally recognized in that jurisdiction. This means that a couple whose marriage is valid in Massachusetts is considered valid and recognized in San Diego, California, should the couple relocate to the state.

History of California Same-Sex Marriage Law

Same-sex marriage in California was legalized in 2013 following a landmark United States Supreme Court ruling that affirmed a previous ruling made in a lower court. Before the verdict was several federal and state court rulings as well as a voter initiative, which was later ruled unconstitutional.

  1. June 2006 Supreme Court Ruling

The Supreme Court of California ruled against a ban imposed on same-sex marriages by declaring it unconstitutional. The ruling was made on the basis of (in re Marriage Cases) equal protection. After the decision, California allowed same-sex marriages.

  1. November 2008 Proposition 8 Amendment

California voters passed a Californian Constitution amendment (Proposition 8) by a slim margin in 2008. The amendment specified that marriage was only possible between one woman and one man. It effectively banned same-sex marriages; however, same-sex couples that were already legally married in the state were allowed to maintain their marriages despite the passing of Proposition 8.

  1. 2010 Judge Walker’s Federal Ruling

Judge Vaughn Walker’s 2010 court ruling declared Proposition 8 unconstitutional since it violated equal protection clauses and federal due process. The decision was later appealed to the United States Supreme Court.

  1. 2013 Supreme Court Ruling in Hollingsworth vs. Perry

In 2013, the U.S. Supreme Court later affirmed the decision made by Judge Walker because it found that the appellants lacked the standing to challenge the lower court ruling. In effect, the ruling legalized same-sex marriages in California. In fact, marriage certificates were immediately issued to the state’s same-sex couples after the announcement of the verdict.

Domestic Partnerships

Domestic partnerships share a lot of similarities with civil unions. They refer to a form of relationship recognized by law, which offers limited state rights to opposite-sex and same-sex couples who despite living together, either wish to remain unmarried or their marriage is prohibited. While civil unions are only legalized in several states, domestic partnerships are available at either city or state levels such as in San Diego or New York. Additionally, couples that choose to be in domestic partnerships are eligible for domestic partner benefits at organizations or companies like employment benefits. In California, the state has granted domestic partnership couples nearly all the state-level spousal rights enjoyed by married couples. This includes same-sex couples.

What are Domestic Partnerships?

A domestic partnership refers to two consenting adults who chose to share each other’s lives in not only a committed but also an intimate relationship of mutual caring. This includes same-sex and heterosexual couples. Before the Supreme Court verdict on same-sex marriage of 2013, domestic partnerships offered same-sex couples many of the rights enjoyed by heterosexual couples.

The Requirements for entering a domestic partnership relationship are as follows:

  • Both individuals must have a common residence
  • Both individuals must file their declaration of domestic partnership
  • The two individuals must not be blood relatives in such a way that they cannot be married to each other
  • Neither of the individuals should be married to another person or already be in a domestic partnership that is yet to be dissolved or terminated
  • Both individuals must be at least 18 years old
  • Both must consent to be in a committed domestic partnership
  • The two individuals belong to the same sex or, if not, then at least one of the two is aged over 62 years old

A registered domestic partnership offers almost all the state-level rights as marriage. Some of the rights include access to domestic relationships laws, inheritance rights, ability to make emergency medical decisions, state spousal benefits like workers compensation, spousal testimonial privilege, and tax relief.

California Pre-Nuptial Agreements

A prenuptial agreement (sometimes called a premarital agreement or merely a prenup) refers to the property rights agreement between the husband and wife. It only becomes effective when the husband and wife get married. Minors can make prenuptial agreements if they are emancipated or are otherwise capable of consenting and entering into marriage. There are numerous cons and pros of making a premarital agreement, including some that are emotional and others financial. Contrary to popular belief, anybody can make a prenup; it is not a reserve of the wealthy.

Requirements of Making a Pre-Nuptial Agreement

It is considered a good idea for each spouse to have the representation of their attorney when making and signing a premarital agreement. This is because the agreement is made between two individuals who may have different goals and interests in mind.

A valid prenuptial agreement must not only be in writing but also signed by both parties. Furthermore, the spouse that is receiving and signing the agreement must have:

  • Received the complete financial information of the other party before signing it
  • Had at least seven days to go through the agreement themselves or have it reviewed by their attorney before signing it
  • Been represented by a different lawyer other than the one serving their spouse. If the same lawyer represents them, then they must have received detailed information concerning the agreement’s terms and obligations and signed an affidavit to the effect

Making changes or revoking the prenuptial agreement must also be done in writing and then signed by both parties. Moreover, for the prenup to be enforceable:

  • The agreeing parties must have entered it voluntarily
  • Both parties must have full knowledge and comprehension of the terms stipulated in the agreement
  • The terms mustn’t be too one-sided or unfair

Contents of a Prenuptial Agreement

Premarital agreements can cover various subjects. They will also be upheld provided that the terms in the prenup do not violate public policy or the law. Often, prenups deal with property rights. They can address issues like:

  • The spousal rights to property that is owned either separately or together
  • Spousal rights to control or manage the property as well as dispose of it in the event of a marriage dissolution
  • The making of a trust or will to carry out the prenup’s provisions
  • The ownership rights or disposition of death benefits from one or more life insurance policies
  • The choice of law under which the agreement will be constructed

Since the state of California has an interest in making sure that children are always maintained and supported by their parents, prenups’ terms that adversely affect any rights of a child may not be enforceable.

Dissolution of Marriage in California

Marriage-Ending legal proceedings have strict rules regarding what circumstances they cover and to whom they apply. The options available in California for ending your marriage include:

  • Annulment: This refers to a court order issued after a proceeding that dissolves a marriage. Unlike divorce, an annulment has the option of ending the marriage in such a way that it never existed or was invalid in the first place.
  • Divorce: This refers to the legal dissolution or termination of a marriage by either a court or any other competent body.
  • Separation: A separation allows a couple to effect some of the decisions as a divorce concerning shared property, child custody, and support. However, it does not end the marriage legally.

Marriage is easily one of the essential events of your life. It involves your emotions and also changes your legal status. Ergo, it is important to educate yourself concerning any aspect of marriage law such as same-sex marriage. When in need of any assistance concerning marriage law in San Diego, California, you should talk to a family law attorney. San Diego Family Law Attorney has experienced lawyers specializing in different aspects of family law including marriage. Contact us at 619-610-7425 to book your appointment, schedule a consultation, or talk to one of our attorneys today.


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