Legal Question in Family Law in California
divorce with tricky technicalities
I'm looking to get remarried as soon as possible. The problem is, I got married in 1998 to a Serbian citizen in California (I am a U.S. citizen). The license was issued but then a mark was made on it before it got sent to the recorder. The recorder sent it back saying it was invalid and could not be recorded, and no marriage certificate was ever issued.
In 2000, we moved to Australia where de facto marriages are recognized, and so never followed up with correcting the license or getting a marriage certificate.
We separated in Nov 2005, and I would like to get remarried to someone else, another U.S. citizen who I am currently living with in Beijing, CHINA.
My questions are:
1) Do I need to get legally divorced in order to marry my current partner?
2) If I file for divorce, where do I do it? (I no longer have residency in CA. My ex lives in Australia. I don't think I can file for US divorce through Chinese court. The U.S. embassy Am Cit Services says they can't help.)
3) Even if I do find the right jurisdiction, how can a divorce be granted for a marriage that's not even on record? (It is possible that the judge who issued the license may have record of it.)
What can I do?
Hope someone can help...
2 Answers from Attorneys
Re: divorce with tricky technicalities
Your question is going to require research. I do know that CA does not recognize common law marriages. However, if 2 people believe they got married under the laws of another state or country and then acted as if married, then quasi-community property laws will apply. In your case, it sounds like you may or may not have a valid marriage.
If I were you, I would start off with getting a divorce where I live. You are not legally married in CA, and really, the only way I could see this becoming an issue is if your ex-spouse was claiming that you were legally married, and she's making that claim here in CA.
If CA is not an issue, then you need to find out, under the laws of the country in which you currently reside, whether your common law marriage in Australia counts as a marriage under the current country's laws. If not, then you can get married. If so, then you should get a divorce first.
Re: divorce with tricky technicalities
California does not have a statutory provision for common law marriage, but does recognize a common law marriage when the parties have complied with the common law marriage laws in another state or jurisdiction. Further it appears from your statement that under Australian law you are legally married. A divorce granted in China where you presently are a resident should be valid in the United States.
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