Are We Really Married?

M and L began dating in 2008. They began living together in 2011, because they wanted to be together, but not in a legal, marital status. Both M and L had been married twice before. L was receiving social security based on her widow-status and she did not want to lose the income. Further, M was a gambler and she did not want to be responsible for his debts. Sadly, their co-habitation did not set well with other family members. So, M obtained a confidential marriage license and a “ceremony” was performed in the scenic town of Cambria, California.

The officiant who performed the “ceremony” gave the signed marriage license back to M. M promised he would send it to the county clerk’s office. Instead, M put it in the drawer of his desk where it sat for four years.

For the next four years, M and L lived in a “pretend” marital status to their family and friends, and a single-person-status for any government agency. They filed separate income tax forms and L continued to receive her social security check based on her previous marriage.

In 2015, M filed for divorce from L. L asked the trial court to “quash” the divorce request, because they weren’t married and could not, therefore, divorce. (“Quash” means to render a court petition or order null and void.)

The trial court denied L’s motion and determined that their marriage existed. The court stated that the wedding officiant failed to perform his duty to return the license, but this did not invalidate the marriage.

L appealed and the California Appellate Court agreed with the trial court:

“Marriage is a personal relation arising out of a civil contract between two persons, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization.”

To solemnize the marriage, “…the parties shall declare, in the physical presence of the person solemnizing the marriage and necessary witnesses, that they take each other as spouses.”

Following the solemnization, the license is returned (either in person or by mail) to the county clerk’s office before the statutory deadline – usually within ten days of the solemnization.

The California state legislature made it clear that the duty to return the signed license is the duty of the person solemnizing the marriage: A confidential marriage license “shall be returned by the person solemnizing the marriage to the office of the county clerk in the county in which the license was issued within 10 days after the ceremony…”

“…Applying the statutes addressing the creation of marriage, we conclude that the parties in this case are married. They applied in person for a confidential marriage license at the office of the county clerk. They exchanged vows declaring each other spouses at a solemnization ceremony. After the ceremony, the officiant authenticated the marriage license; he was not told that the wedding was a ruse. At that point, the parties were married. The officiant had a legal duty to return the license to the county. His failure to perform that duty does not invalidate the marriage.”

Categories: Divorce, Family Law
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