California law requires both parties to consent to be married, but mere
consent does not a marriage make. Generally, there must be a marriage
license issued, a solemnization and authentication following the issuing
of the license, and a recordation in the county where the solemnization/authentication
took place. These three elements must be issued in this order to be a
The marriage license will only be issued when both parties seeking to get
married appear together before a representative of county clerk’s office.
The solemnization/authentication process can be administered by an authorized
religious person (e.g., rabbi, priest) of any religious denomination,
or by a judge or retired judge, court commissioner or retired court commissioner
of civil marriages, a state or federal legislator representing a district
in California, a county supervisor, or duly-elected city mayor. There
is no official marriage ceremony; just that both parties declare that
they take the other party as his/her spouse. There must be a minimum of
two witnesses to this declaration.
After the solemnization, the person solemnizing the marriage must return
the license within ten days completely filled out to the county where
the license was issued.
California does not recognize “common law marriage.” The mere
fact that two people live together – even if the act like “married
people” will not give them legal marital status. There is one exception,
however. If the parties became married via another state’s common
law statues, and they moved to California, then California will recognize
the parties as married.
Conversely, under no circumstances does California recognize polygamous
marriages regardless of jurisdictions where legal. (Although nowhere in
the United States are polygamous marriages legal, in other countries they
may be. However, California does recognize most foreign single-partner
Further, an incestuous marriage is invalid in California.
Both parties entering into a marriage must have the capacity to do so.
They must be at least 18 years of age and have the same capacity of anyone
entering into a civil contract. For instance, anyone of unsound mind cannot
enter into a valid civil contract, and therefore could not enter into
a valid marriage. Also, anyone under the age of 18 wishing to marry can
petition the court for permission to marry. (If either party [or both]
is under age, a court order must be issued granting permission for the
parties to marry.)
Neither party has to change his or her name upon entering the marriage;
but either party can elect to change his or her name at the time of the
solemnization ceremony by entering the new name in the space provided
on the marriage license. The name change must not be with the intent to
defraud. (See Family Code Section 306.5(b).)