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by James P. Reape Marriage in California
is a valid civil contract between a man and a woman who are both
free and capable of marriage and consent. Marriage is considered
a partnership that is permanent and dissoluble only judicially,
not by the consent of the partners. In California, it must be
licensed, witnessed and registered. Our state has not accepted
common law marriages arising within its jurisdictional boundaries.
Mere cohabitation in and of itself has no legal significance and
no bearing upon any rights in property that the partners may acquire. The nullity of a marriage
depends upon statue. Statutory requirements for valid marriages
refer solely to the circumstances at the time of the marriage. California
courts will not determine a marriage to be null and void unless
there was something wrong at its inception. A void marriage is void
from its beginning. A ceremonial marriage, on the other hand, is
presumed valid until declared null by proper judicial proceedings. In a voidable marriage,
one or both spouses must choose to dissolve it through the courts.
Unlike voidable marriages, however, void marriages may be asserted
and challenged in any proceeding wherein the fact of marriage is
material. There is no statute of limitations affecting challenges
to void marriages, unlike the law governing voidable marriages which
must be attacked during their existence. A void marriage may be
attacked directly or collaterally during the lifetime of both spouses
or after the death of either. When a person has entered
into two successive marriages, the latter is presumed to be valid.
The burden of proof is on the party assailing the marriage to show
that the prior marriage had not been dissolved by death or judicial
dissolution. Voidable marriages
include brothers and sisters, half-brothers and sisters, and between
uncles and nieces and aunts and nephews. Void marriages also include
those contracted by a person bigamously, such as with an already
existing and not terminated valid marriage. A marriage is voidable
when a marriage is bigamous, wherein a former spouse is absent and
not known to be living for at least five successive years immediately
preceding the subsequent marriage or was believed to be dead. Voidable
marriages also include those involving a minor or if one is of unsound
mind. Where one or the other spouse marries under duress or fraud
is also voidable under the law. Finally, cohabitation is a right of married persons, but is not necessary for a marriage to be valid. A valid marriage could be performed in the proper ceremonies and pursuant to a license. The couple could then live apart but still be validly married. |
