What makes a marriage valid?

Nathan W. Gabbard
Jun 2, 2017 · 8 min read

What makes a marriage valid in California?

Rings, dress, best man, maid of honor, groomsmen, bridesmaids, flower girl, ring bearer, flowers, cake, venue, music, reception. This list of decisions to be made while planning and preparing for a wedding could go on and on. With the average cost of weddings in the U.S. jumping to over $35,300 in 2016, up 8% from 2015 (according to a survey by The Knot), there is no shortage of details involved in planning for that special day. Of all the important details considered when preparing for nuptials, some of the most basic — yet, fundamentally important — pieces might easily be overlooked. However, before the wedding bells ring, it is prudent to also consider the elements that form the basis of a valid marriage in California.

To have a valid marriage, California law requires a licensed, solemnized, consensual contract for marriage, entered into by two adults, who have the physical and mental capacity to enter into the marital contract at the time it is entered. Although consent is required, consent alone does not create a valid marriage. The issuance of a marriage license, solemnization, and recording of the license are all required, too. Family Code §300. Furthermore, California only recognizes ceremonial marriages, and does not recognize common law marriages. Tatum v. Tatum (1957) 241 F2d 401. Although some other states or jurisdictions might recognize common law marriages, California will not recognize a common law marriage even if validly entered in another jurisdiction.

Marriage license required

Before entering a marriage, the parties must first obtain a marriage license from a county clerk. Family Code §350.

If no marriage license is obtained, the marriage is not valid. For example, a boyfriend and girlfriend invite a happy collection of friends, family, and colleagues to enjoy a celebration and ceremony that appears to be that of a wedding ceremony. The couple receives wedding presents and are showered with love and congratulatory sentiments. Though the couple never applied for a marriage license, they enjoy the celebration and ceremony and go on to live together happily as a couple. Years later, when the couple’s relationship falls on rocky times and they decide to get divorced, to their surprise, they are unable to dissolve their relationship because they never obtained a marriage license, and, thus, never had a valid marriage. See, generally, In re Marriage of Left (2012) 208 Cal App 4th 1137.

Contents of license: Pursuant to Family Code §351, the marriage license shall show all of the following: (a) The identity of the parties to the marriage; (b) the parties’ full given names at birth or by court order, and mailing addresses; and (c) the parties’ dates of birth.

Application procedure: When applying for a marriage license, applicants will be required to present authentic photo identification acceptable to the county clerk as to name and date of birth. A credible witness affidavit or affidavits may be used in lieu of authentic photo identification. If the clerk finds it necessary, the clerk may ask questions and inquire of the applicants under oath, and reduce the examination in writing to be signed by the applicants. The clerk may ask for additional documents to verify accuracy of facts stated by applicants. However, applicants shall not be required to state, for any purpose, their race or color.

Denial of application: An application for a marriage license shall be denied if either of the applicants lacks the capacity to enter into a valid marriage or is, at the time of making the application for the license, under the influence of an intoxicating liquor or narcotic drug. Family Code §352.

A marriage license expires 90 days after it is issued. Family Code §356.

What happens after a marriage license is obtained?

Once the marriage license is obtained, it shall be presented to the person solemnizing the marriage, who shall complete the solemnization sections on the marriage license, and shall write (or cause to be written) on the marriage license the name, signature, and mailing address of at least one (but no more than two) witnesses to the marriage ceremony.

From license to certificate: Upon returning the completed, solemnized marriage license to the county clerk, the license becomes a marriage certificate. Family Code §300.

What is solemnization?

Solemnization is the performance of a ceremony, in other words, the wedding ceremony. A marriage must be solemnized to be a valid marriage. Solemnization of a marriage is, since the amendment of 1895, essential to its validity. In re Estate of Shipp (1914) 168 Cal. 640.

It is not required to have a religious ceremony or to have a religious leader officiate a marriage ceremony. However, it is allowed to do so. For example, a marriage may be solemnized by a priest, minister, rabbi, or authorized person of any religious denomination who is 18 years of age or older. Family Code §400.

Additionally, a marriage may be solemnized by any of the following who are 18 years of age or older: a judge or retired judge; commissioner or retired commissioner of civil marriages; assistant commissioner of a court of record in California; a judge or magistrate who has resigned from office; a justice or retired justice of the United States Supreme Court; a judge or retired judge of a court of appeals; district court; a judge or retired judge of a bankruptcy court or tax court; a United States magistrate or retired magistrate; a member of the State Legislature; a member of Congress who represents California; a former member of Congress who represented California; a person who holds or formerly held an elected office of a city, county, or city and county. Family Code §400

A wedding ceremony may be as lavish or as quaint as personal taste avers. There is no requirement for any particular form or manner of marriage ceremony, but the parties must state in the presence of the solemnization official and witnesses that they take each other as husband and wife (or as husband and husband, or as wife and wife). See Family Code §420(a); Marriage of Left (2012) 208 Cal.App.4th 1137, 1145.

What is required after the wedding ceremony?

Remember to have the person officiating the wedding ceremony return the marriage license to the county clerk where it was issued. A fully completed and solemnized marriage license, once returned to the county clerk, then becomes a marriage license. Once completed, the license must be returned by the person solemnizing the marriage to the county recorder within 10 days of the ceremony (postmarked within 10 days is acceptable). Family Code §359. Although not best practice, even if the marriage license is accidentally not returned to the county clerk, the failure to comply with the return-requirement does not invalidate the marriage. Family Code §306.

What’s on your mind? (Mental capacity to enter marital contract)

A person must be of sound mind and have the capacity to enter a marital contract. Family Code §§301, 2210(c). Two unmarried persons who are each at least 18 years of age are capable of consenting to marriage, unless otherwise disqualified. The test for capacity and sound mind revolve around events at the time of solemnization. The eligibility of a person to contract marriage is determined from conditions existing on the date of solemnization, and not from that which may happen afterwards. Briggs v. Briggs (1958) 160 Cal.App2d 312; Blumenthal v. Blumenthal (1929) 97 Cal.App.558.

For determining competency, capacity, and sound mind for purposes of entering into a marital contract, courts look to the general rules of contract law. Dunphy v. Dunphy (1911) 161 Cal. 380, 383. For example, a person entirely without understanding has no power to make a contract of any kind, whereas a contract by a person of unsound mind, but not entirely without understanding, made before his incapacity has been judicially determined, is subject to rescission. In re Estate of Gregorson (1911) 160 Cal. 21, 26.

Simply having a variation from normal mental condition is not itself enough to avoid every act. Dunphy at 383. The mental defect or derangement must be one having a direct bearing upon the particular act which is brought in question. The true test of whether a party is of sound mind to enter into a valid marital contract is whether the party was capable of understanding the obligations assumed by marriage. Dunphy at 383. In other words, a party must be able to understand the nature of the marital contract, as well as the duties and responsibilities it creates. Dunphy at 383.

In Dunphy, a marriage was annulled (determined to never have existed as a matter of law) because the man was of unsound mind at the time of entering the marital contract. In support of his position that he was of such unsound mind, Mr. Dunphy presented witness testimony of several friends and members of the community who knew his condition being of unsound mind. Additionally, Mr. Dunphy presented expert testimony from doctors, one of whom testified that Mr. Dunphy’s “brain was so degenerated…that his thoughts are as liable to be abnormal as normal.” The Court of Appeal upheld and agreed with the trial court finding that Mr. Dunphy was of unsound mind when he entered the marital contract such that the marriage was annulled (determined to have never existed as a matter of law).

Special rules for challenging validity of marriage (void or voidable marriage)

A marriage may be challenged as to its validity and can be determined to be a void or voidable marriage. This process is known as a nullity (or annulment of marriage).

A judgment of nullity terminates the relationship and results in a legal determination that the relationship never existed as a matter of law. An action for nullity can be brought by any person with proper standing, such as a relative of a spouse. An action for nullity may be brought even after death of a spouse, for example an action for nullity based on the competency of the spouse at the time of marriage can be brought by a niece who might stand to inherit.

Grounds for nullity include force (beatings, intimidation, threats to family, threats to safety, a force of sufficient magnitude to overcome a party’s free will), physical incapacity (unable to engage in normal copulation and the incapacity continues and/or is incurable), unsound mind (of such overwhelming incapacity that they were unable to enter into the marital contract, unless marriage was contracted during a period called “lucid interval”), and fraud (a fraud which must go to the very essence of the marital relationship). Note, a person with a mental disability is not automatically incapable of entering a marital contract, as long as he or she is able to understand the desire and intent to become married.

A void marriage can be found where there is bigamy (where a spouse is already married to someone else) or incest (when the people who are married are close blood relatives). In such situations, the marriage was never legally valid, and, therefore, is void.

With the help of these basic understandings, which provide a general outline of what is required to form a valid marriage in California, along with the loving support of family and friends, parties can feel more informed as they plan and prepare for entering into a happy, healthy, and hopeful marital relationship.

Nathan W. Gabbard is a Certified Family Law Specialist, certified by the Board of Legal Specialization of the State Bar of California and practices exclusively family law in Santa Monica, California.

www.nathanwgabbard.com

Nathan W. Gabbard

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Attorney. Friend. Pianist. Baker. www.nathanwgabbard.com