Legal Question in Family Law in California

I disagree with that answer. Although it has been a while since I read the statutes, I'm pretty sure return and filing of the license is required for a marriage to be legally completed. It is not like a deed where if delivered it is effective even if not recorded. If the marriage is new and there is nothing that would be community property or debt if the marriage was valid, I would just walk away from it. If it has gone on long enough to be more complicated, however, I think the proper process would be an annullment, like any other invalid marriage.

I believe that I gave that answer to that question. I do not remember the specific factual background.

In California, there are two requisites for a lawful marriage. First, the parties must have legal capacity. Neither spouse may have a prior subsisting marriage, unless it is terminated by decree or death. The relationship between the spouses cannot fall within the statutory prohibited degree of consanguinity. (Like marrying your sister, or cousin.) Bigamy and incest will render any attempted marriage void. There are other lesser defects in legal capaicty, such as minority, fraud, sexual incapacity, or the lack of consent that will make the marriage voidable at the option of the party raising the issue.

Second, the parties must satisfy the legal requirements for contracting the marriage. A marriage must be licensed and solemnized. "Marriage is a personal relation arising out of a civil contract between a man and a woman, to shich the consent o 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 as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500)." (Fam. Code, sect. 300 subd. (a).)

"For the purposes of this part, the document issued by the county clerk is a marriage license until it is registered with the county recorder, at which time the license becomes a marriage certificate." (Fam. Code, sect. 300 subd. (b).)

Secondary sources argue that the marriage must be registered to be valid. "Duly formalized ceremonial unions are licensed, witnessed, and registered." (Community Property in California, page 514, Grace Ganze Blumberg.)

The problem with Ms. Blumberg's assertion, and Mr. McCormick's response, is that requirement is not embodied in the statutes, and the weight of statutory authority is against it. "Except as provided in Section 307, a marriage shall be licensed, solemnized, and authenticated, and the authenticated marriage license shall be returned to the county recorder of the county where the marriage license was issued, as provided in this part. NONCOMPLIANCE WITH THIS PART BY A NONPARTY TO THE MARRIAGE DOES NOT INVALIDATE THE MARRIAGE." (Fam. Code, sect. 306.)(Emphasis added.)

Thus, in my previous response, the failure of the minister or person solemnizing the marriage to return the license to the recorder, does not invalidate the marriage. In fact, the parties can purchase a "License and Certificate of Declartion of Marriage" from the county clerk. "If no record of the solemnization of a California marriage previously contracted under this division for that marriage is known to exist, the parties may purchase a License and Certificate of Declaration of Marriage fromt he county clerk in the parties' county or residence one year or more from the date of the marriage. The license and certificate shall be returned to the county recorder of the county in which the license was issued." (Fam. Code, sect. 425.)

Evidence Code section 1312 allows evidence of entries in family Bibiles, or family books, charts, etc, to prove marriage. Evidence Code section 1313 also allows reputation among members of a family to prove marriage, and Evidence Code sectoin 1314 allows reputation in the community to be used as evidence to prove marriage. Evidence Code section 1315 allows the use of church records to prove marriage. These sections of the Evidence Code would be rendered meaningless if there was a bright line requirement that a marriage license be recorded to prove the marriage was valid.

To put it in more simple terms, if a man dies, but the coroner has not yet issued a death certificate, or the death certificate is never recorded, does that mean the man is not dead?