What Constitutes a Valid Marriage in California

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 valid marriage.

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 marriages.)

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).)

Categories: Family Law
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