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Family Law Blog

Divorce & Family Law Blog by Attorney Jamie Elmer of Berkeley, California

What does it take to become married in California, and why is that important?

What does it take to become married in California, and why is that important?

In order for a valid marriage California law requires the parties to have the proper capacity to marry, a marriage license, consent, and a marriage ceremony or solemnization, and authentication. [Family Law Code section 420].


Each party must be at least 18 years old and mentally capable of giving consent, and they must not already be married. [if previously married the divorce must be final; e.g., they must be single persons, according to the terms of the divorce judgment] and they cannot be related as parent and child, or brother and sister, or half brother and sister, aunt or uncle, or niece or nephew; however, in California, first cousins may legally marry.

Consent & solemnization:

No particular ceremony is required, but the parties must declare in the presence of the person solemnizing the marriage and the necessary witnesses that they take each other as husband and wife.

Marriage License

After the ceremony, the marriage license must be returned to the issuing county clerk, and registered. The person solemnizing the marriage must sign and complete the marriage license, and return it to the county where the license was issued within 10 days after the ceremony [This takes care of the authentication]

Registering the marriage license:

Although all these are essential elements for a valid marriage, the failure of the officiant to return the license is probably not fatal to the validity of the marriage. However, if the parties themselves are responsible for the failure to return the marriage license to the issuing county it might invalidate the marriage.

California Law does not authorize a commitment ceremony that does not involve a marriage license, and any ceremony without a license does not establish a valid marriage for purposes of the statutory scheme of rights and responsibilities of married persons.

No Common Law marriage in California:

California does not recognize the concept of a common-law marriage.  A narrow exception to this rule is that if the parties lived together and established a common-law marriage in one of the few states that do recognize the concept, California would honor that relationship in the California courts.

Action to declare Marriage a nullity:

The marriage may be declared invalid in an action for nullity where one of the parties is a minor, there is a prior existing marriage, one of the parties was of unsound mind, or the marriage was entered into based on fraud. 

In practice, some recognized, [but still pretty rare] reasons for seeking a nullity of marriage include concealment of sterility, or concealed intent not to have children when the other party reasonably expected they would have children; concealed intent not to live with the other spouse; concealed intent not to have sexual relations with the other spouse, concealed intent not to break off a sexual relationship with a third-party.

Effect of invalid Marriage

As a general rule, parties to an invalid marriage do not have the benefits or the responsibilities of married persons.  For instance, there would be no right to intestate succession [inherit as the surviving spouse where there is no will], no creation of community property, or the right to seek spousal support, no rights as a “surviving spouse” under pensions and social security or for maintaining a wrongful death action, or any of the other financial benefits and burdens of married persons.

Putative Spouse

A putative spouse who is a party who subjectively believed that they entered into a valid California marriage [even if that belief was unreasonable], but for some reason the marriage was not valid.  A putative spouse is entitled to almost all of the same benefits as validly married persons.

There are exceptions though, and each case may turn on the particular right in question. In general, if the right is granted by statute, a putative spouse will probably have the right, where if the right is subject to a private contract, such as retirement benefits or life insurance, the terms of the contract controls and may or may not entitle the putative spouse to the particular benefit.

If  you have further questions regarding Marriage, Divorce and other Family Law issues, please contact Martin "Jamie" Elmer, family law attorney in Berkeley, California, at (510) 644-2411 or by email, for a free initial consultation.