What is a “Valid Marriage”?

In general, the elements of a valid marriage are consent, license, solemnization, and authentication.

A valid marriage under California law requires the consent of the parties to enter into a civil contract. But the parties’ consent does not alone constitute a marriage. To validate the marriage, the consent must be followed by issuance of a license (Family Code Section 350), solemnization (Fam. Code Section 400) and authentication (Family Code Section 422-425). And, the authenticated marriage license “shall be returned to the county recorder of the county where the marriage license was issued.”

It is important to note that failure of any of the requirements by a nonparty to the marriage does not invalidate the marriage. For example, an otherwise valid marriage would not be invalidated if the officiant of the marriage failed to return the certificate of registry, or failed to return a confidential marriage license to the county. On the other hand, a marriage will be invalidated by the parties’ failure to comply with the statutory requirements, such as failing to obtain a marriage license.

Additionally, California has abolished the concept of “common law marriage”. This means that a valid marriage cannot be created in California solely by the parties’ consent or mere cohabitation. A valid marriage may be entered into only by parties who are “capable of making” the contract of marriage. Generally, the parties must have the capacity to enter into any ordinary civil contract, such as being at least 18 years of age, of sound mind, and not deprived of their civil rights. However, minors (under the age of 18) may be issued a marriage license upon obtaining a court order granting them permission to marry, in accordance with Family Code Section 304.

The issuance of a marriage license is a mandatory prerequisite to a valid marriage in California. However, it is unclear, whether the absence of a license is a “curable” defect in the sense that it can be obtained after solemnization. Although marriage is a personal relation arising out of a civil, and not a religious contract, it may be solemnized by an authorized person of any religious denomination as well as various governmental roles (judge or retired judge, a court commissioner or retired commissioner of civil marriages, an assistant court commissioner, a judge or magistrate who has resigned office, various U.S judges or magistrates as statutorily defined, a current or formed state or federal legislator representing a district in California, a person who holds or formerly held an elected office of a city and/or county, a city clerk of a charter city as statutorily defined). The person must be at least 18 years of age.

By the same token, a person authorized to solemnize marriages may not be required to do so if contrary to “the tents of his or her faith.” And any refusal to solemnize a marriage may not affect an entity’s tax exempt status, as outlined in Family Code Section 400(a). The person solemnizing the marriage must sign and complete the marriage license with the information prescribed by Family Code section 422 and return it to the county recorder of the county where the license was issued within 10 days after the ceremony.

Generally speaking, if you can check the box to the above outlined requirements your marriage is seen as “valid” in California. However, not every marriage procedurally happens the same, such as marriages outside the state of California and/or the country. There are many exceptions and other factors to consider when trying to evaluate if your marriage, or even second marriage, is valid. And undoing it can get even trickier.

At Mello & Pickering, LLP, we have more than 20 years of experience in evaluating the validity of marriages and answering your questions relating to the same. We are here to answer all of your questions regarding your marriage and family law matter. Please call for an initial consultation or an in person meeting at (408) 288–7800.

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