Timothy Patrick Peabody Divorce Law Blog on Lawyers.com

IS YOUR (FOREIGN) MARRIAGE VALID?

Thursday, September 9, 2010 by Timothy Patrick Peabody

Is Your (Foreign) Marriage Valid?

by Timothy P. Peabody, Esq., Family Law AttorneyMost California residents when faced with the prospect of divorce rarely question the validity of their marriage until it is too late.

However, case law in California exists that would tend to negate the existence of a valid marriage unless certain prerequisites are followed: Namely, that the celebrant who pronounced you many and wife was licensed to make that pronouncement.

In the typical wedding, these issues do not arise. However, with the advent of mail order ministers (and brides) as well as an entire collection of other “official” wedding celebrants claiming to have the right to join you and your spouse in “holy matrimony” your wedding may not be valid.

This is a provocative idea that may be raised in these provocative times.

If you marry outside of the United States, make sure that you are following the correct “in country” protocols to ensure that your marriage is indeed recognized in the United States. That person in the robes or in the flowered ponytail may not have the legal authority to marry you. Or, you may forget to formally register or obtain a license in California to ensure the official status of your marriage.

A recent example of these issues just appeared before me. My client was married to a gentlemen two years ago in front of the an individual known only as “Shaman” Joe. Joe is a witchdoctor who practices weddings when casting spells is slow. My client had a new age wedding that did not include such trivial things such as a wedding vow (“ I take this ring as well as the guy attached in holy matrimony with the intent to be married to him”); wedding license and other outdated ideas, statements and documents normally associated with a wedding.

These outdated concepts had been replaced by special dance ceremonies, smoking illegal herbal supplements and/ or simply dunking themselves into the ocean and hoping the Nature god would grant them a long life together.

Actually, a wedding license was later obtained and filed in California. So it was not all that bad. However, the other issues regarding solemnization of marriage were not followed.

Now none of this really matters until you get divorced. Thereafter, there are many intriguing questions that arise such as “maybe I don’t have to pay spousal support to this person since I never really married him (her).” Or, I guess I don’t have to split that Lottery money with my husband since we were never really officially married.

Things get really provocative when splitting up money in divorce.

The question becomes:

Did the client successfully create a civil contract of marriage under California law? If not, you may get to keep the Lottery proceeds, or the dog.

There are other issues relating to putative spouse issues; however,
the short answer is NO.

SolemnizationIn California, a marriage is solemnized when the parties declare that they take each other as husband and wife before a legally recognized official, who is said to "solemnize" the marriage Cal Family Code § 420; Sharon v. Sharon (1888) 75 Cal 1, 12.

Cal Family Code § 420(a) provides: No particular form for the ceremony of marriage is required forsolemnization of the marriage, but the parties shall declare, in the presence of the person solemnizing the marriage and necessary witnesses, that they take each other as husband and wife. The declarations verbalize the parties' consent to marry, which is required by Cal Fam Code § 300. Cal Family Code § 300(a) states: Marriage is a personal relation arising out of a civil contract between a man and a woman, 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 as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500).

In the instant case, my client never stated a present intent to marry. Shaman Joe never registered the marriage or filed an official license. When the time came, Shaman Joe could not be located to verify anything related to the wedding (probably because he had been jailed for distribution and fraud)

Symbolic gestures of intent to marry do not carry the day when proper statement of intent are necessary such as the exchange of rings or other statements of intent. Without stating a present intent to marry, your wedding gestures or activities may not be satisfactory to form a legal and lawful marriage.

Putative Spouse

Some of these legal issues can be circumvented by a determination that even though Shaman Joe was your officiant, your marriage is valid in California for community property purposes because you lived as husband and wife and you thought, in good faith, that you were married.

In California, a court may determine a party to be a putative spouse when that party held a good faith belief that the party's void or voidable marriage was valid. Cal Family Code § 2251. The court will measure the party's good faith belief by an objective reasonable person standard Estate of DePasse, (2002) 97 Cal. App. 4th 92, 107; In re Ramirez (2008), 165 Cal. App. 4th 751, 756). In DePasse, appellant sought to overturn the trial court's decision, which held that appellant could not claim rights as a putative spouse because he lacked a marriage license, a prerequisite for a valid California marriage. The appellate court confirmed the trial court's decision, holding that appellant knew that a license was a necessary prerequisite to a valid marriage in California, and therefore, he had no reasonable expectation that he had been legitimately married.

Here, S had married two women before D, and S regularly performed weddings in California. S was familiar with the solemnization requirement, and could not reasonably expect that a marriage ceremony without a declaration of intent would be valid in California. However, the court in DePasse also supports its decision by citing the facts that appellant and his 'spouse' had never "held themselves out as husband and wife, pooled earnings, acquired joint property or had any economic interdependence." Estate of DePasse, (2002) 97 Cal. App. 4th 92, 107, 108).

This implies that these factors are relevant in determining the reasonable belief of a party, and in the instant case, all of these factors are present. D and S have held themselves out to be married, pooled earnings, acquired joint property and enjoyed economic interdependence. The court in Ramirez, a more recent case, held that appellant husband could not claim rights as a putative spouse, despite his subjective belief that he was married and his cohabitation and comingling of assets with his 'spouse.' In Ramirez, appellant married his wife in a wedding ceremony held in California, officiated by a Mexican official.

However, the license stated the wedding was held in Mexico, but officiated by the same official. The court found this to be sufficient evidence to declare that marriage null and to deny appellant's putative spouse claim. The court held that a reasonable person would not have believed that he was married under these circumstances, even though appellant subjectively believed that he was married and acted, with his wife, as a married couple for two years In re Ramirez (2008) 165 Cal. App. 4th 751, 756). In the present facts, similar to Ramirez, even if S proceeded under the subjective belief that he was married to D, the question is whether that belief was reasonable or unreasonable. S has been married twice before and holds himself out as an ordained minister who can officiate at a legal marriage ceremony in California.

Even if two spouses live together as husband and wife, holding themselves out as a married couple, and commingling assets is strong evidence of putative spouse status. However, if the facts show that both spouses knew that Shaman Joe did not have the authority to marry them and they went along with it anyway, neither can meet the good faith requirement of the putative spouse excuse.

If there is an argument regarding intent to marry or knowledge of the invalidity of the wedding ceremony, you may be surprised to learn that California law may not obligate/protect your community property or support contentions. For further questions, please contact Timothy P. Peabody, Esq. at 949 200 4610 or www.thepeabodylawfirm.com

Posted at 15:12 PM

Topic: Divorce