Anyone ever tried and/or succeeded in predating a marriage license in California? The reason I ask is that my wife and I recently got married (with a real officiator, witnesses, and everything!) and only just procured a license. But the clerk wouldn’t date the license for the day we were married–only for the day on which we applied for the license. It seems quite silly to me (with no legal knowledge) why such bureaucracy should get in the way of our filing, legally, the date on which we were actually wed.
So…was the clerk just giving me a bad time or were we shortsighted in not getting the license beforehand (or both)? And, either way, is there any means of circumventing this? Normally I wouldn’t fuss about it, but I get a bit miffed with the idea that our great-grandkids might go through the official records and think that our marriage was on a day it really wasn’t. I imagine this must happen all the time to couples who elope. Are all such folks destined to have two dates (one for the memories and one for the legal records)?
Shouldn’t our officiator simply be allowed to predate the license to the date on which we were wed? I’d think yes. The Clerk’s office disagrees. Vehemently. What’s a fella to do?
The state doesn’t care much about whatever hoopty-do and ceremony you have for a wedding. They care about the license. You’re normally supposed to get it before you have the ceremony, and in my experience, that’s what eloping couples do, too. It’s not like it’s that hard to get.
I have performed 3 weddings (Universal Life Church). Each time I required the couple to bring a state issued license to the gala. Isn’t that standard operating procedure?
Pretty much every wedding I have been involved in has had people signing the wedding license at some point. Not usually as part of the main ceremony. But shortly after the ceremony but before the reception.
IAAL, but not yours. You are not my client. What follows is not legal advice, so you should not rely on it. Read on at your peril.
Not for long, if at all. That would be falsifying an official document, which is generally frowned up.
Actually, what the clerk offered to do was to date the license the day that you were married. Which, at the earliest, would have been the day you got the license.
Although you and your wife likely will always celebrate the day you had your wedding ceremony as your anniversary, you were not “actually” wed that day in the eyes of the government. The government regulates marriage, and in California, common law marriages don’t exist. Only marriages licensed by the state are valid. That’s why there was such a brouhaha over San Francisco’s mayor, who ordered the city clerks to begin issuing marriage licenses to gay couples. That was a heady time in SF, because, marriage license in hand, a committed homosexual couple could formalize their relationship in what appeared to be a government-approved union. Alas, the matter is now in the courts, and those couples who thought they were married are in limbo.
I digress, but the point is this: the license is what makes the marriage. The fact that you held a ceremony, with a proper officiant, is irrelevant to whether the state will recognize your marriage for most purposes. (I’m leaving out equitable issues, which aren’t relevant to the question.)
You were shortsighted. I am surprised that your officiant didn’t raise the issue with you.
Not legally, that I’m aware of, and I know you meant whether there was any legal method of circumventing it. The illegal method would likely involve breaking into the Records Department (I see something like Tom Cruise in Mission Impossible), and it’s really not worth it. I mean, he got away with it, but he had Ving Rhames and Jean Reno.
Look at it this way: you can tease your wife about living in sin with her before you were actually married, and you’ve got a great story for the grandkids. “Did you know that grandma and I were married before we were married?”
Every eloping couple I know got the license ahead of time. Heck, my brother eloped in secret (he thinks we don’t know), then had a full-on ceremony later.
Your marriage occurred on the date that is shown on the license – your wedding just happened to pre-date your marriage.
Unless there’s a serious discrepancy (e.g. unless your wife is already pregnant and based on your child’s birthday people will realize your marriage license is way off), it’s more than likely that people will assume you were slackers in getting you license filed.
The marriage has to be solemnized and the person solemnzing the marriage has to be presented with a valid license.
My reading of the statutes indicates to me that, based on the information provided, the OP and his wife are not legally married. There may be additional facts of which I am not aware, IANAL, etc.
I’m kind of confused how, if the OP had a “real officiant,” these steps didn’t at least get mentioned by said officiant.
And yes, even eloping people plan ahead - or go to Vegas, where you don’t need a lot of lead time to get a license before the wedding. In Illinois, for instance, you need to get the license at least 24 hours before the wedding. Las Vegas has no waiting period after getting the license.
Otto’s got a good point. I spent about five minutes chasing this down through the Family Code, but can’t find an answer right now. archer73, did the clerk do anything other than give you a license? Tell you anything about filing it with the county recorder? Tell us more about what the clerk said. (I’m trying to figure out whether what the clerk did could constitute a marriage.)
Think before posting. Penal Code section 360 makes it a misdemeanor for an officiant to preside over a marriage without seeing the license first. I’ll be back later tonight with better answers.
In California you must have a license before the ceremony (CFC 350(a); CFC 421) and yes, a solemnization of the marriage must take place (CFC 420(a)). In addition there is an expiration date for the certificate viz. the solemnization must occur and the certificate returned to the county by the person performing the ceremony within 10 days after being issued (CFC 423).
Oh, by the way, the marriage contract stipulates obligations of mutual respect, fidelity, and support. (CFC 720). At least I got one of the three from my ex-wife [I won’t tell you which one].
Usually there is always an out that if both parties assume in good faith that they are married, the marriage is still legal (e.g. they didn’t know the minister had been defrocked last week). I didn’t see that in the Family Code so maybe someone can definitively say whether or not it was in there.
In this case there is a good point that the official never asked about the certificate and still performed the solemnization. I know our minister made sure we had one about a week before the ceremony. Plus the parties did follow the steps, just in the wrong order. I would think that they are not legally married (I know, I know! IANAL) so if you are still within the 90 days of getting the license and it has not been sent in yet, go IMMEDIATELY to any of the following:
and have them reperform the ceremony informally, process the license, and celebrate your anniversary on whatever day you want.
If the license has been sent to the county, you both may have to go to the Superior Court and have a Judge make a ruling on the validity of your marriage. But be careful, there may be criminal liability involved as per Campion. This whole scenerio is probably best dealt with by a lawyer. In fact, a laywer would probably be able to take a couple of avidavits and go down and sweet-talk a Judge or Commisioner into signing off on your marriage. At the very least, if the errors are not correctable and the Judge rules that the marriage is invalid, you could take the ruling to the county, have the previous license expunged , get a new license, and have an informal ceremony (again, through your lawyer).
To correct a previous error on my part, the expiration date of the licence is 90 days (CFC 356), but it must be returned within 10 days after the solemnization.
archer73: what follow is not legal advice. I am not your lawyer. You should not rely on anything that I say, except the following: get a lawyer, licensed in your jurisdiction. Now, stop listening to me.
The reason I recommend you talk to a lawyer about your issue is that it is an open question in California whether solemnization of a marriage before a license is issued is valid. When I say it is an open question, I mean that there’s a bit of a conflict in the law, and some facts critical to this issue are unknown. For example, did you get married in California? If not, the validity of your marriage is determined by the law of the jurisdiction in which you got married. For example, if you got married in New York, and your marriage would be valid unter New York law, your marriage is valid in California.
Also, we don’t know what the clerk told you or did. Depending on where you are, the clerk may have been authorized to solemnize your marriage, so the fact that you did step 3 before step 2 (see below) is irrelevant, because the clerk did step 2 then step 3 for you.
In Estate of DePasse (link requires free registration), Jack and Derrel lived together. When Derrel became terminally ill, she and Jack agreed to marry. The day before Derrel died, the hospital chaplain performed a marriage ceremony, purporting to marry Derrel and Jack. Although they knew that a marriage license was required, Jack and Derrel did not obtain one before going through a marriage ceremony. After her death, Jack sought half of her estate as her surviving spouse. The trial court denied his petition because obtaining a marriage license is a prerequisite to a valid marriage, so Jack was not Derrel’s surviving spouse.
The court framed the question as follows:
The appellate court sustained the trial court’s decision, holding that issuance of a marriage license is a prerequisite to a valid marriage.
The DePasse court mentioned Health and Safety Code section 103450 (a) as a way to judicially establish a marriage. The DePasse court held that that code section didn’t help Jack, because he and Derrel never had obtained a license, and the section cannot be used to make a marriage valid. Instead, it can be used to replace a lost registration of an otherwise valid marriage. That code section reads in relevant part:
I add this here only because if you start perusing the statutes, you may come upon it, and the court’s take on that section is helpful.
Back to DePasse:
But the DePasse court held that the marriage was not valid because no marriage license was ever obtained. Your situation is different. A marriage license was obtained, only it was obtained after step 3 occurred. I have found no cases discussing whether solemnization before obtaining a marriage license is valid or invalid. The DePasse court sidestepped the issue:
That seems to imply that section 425 can be used to validate the marriage, but the court carefully doesn’t hold on that issue.
Nothing more to add, having read a couple more things. Post your location (county only) and I’ll find your local bar association. You should be able to talk to a family law lawyer for free or cheap ($35) and get a quick answer regarding whether this is an issue.
For all I know, there could be dozens or hundreds of relevant, important facts that would skew the analysis. I don’t know them, so I’ll reiterate: don’t rely on anything I’ve said. This is an internet message board, and therefore inherently unreliable.
I wouldn’t agree. Section 425 refers to the record of the solemnization of the marriage presumably shown by the license being completed and returned by the official conducting the ceremony. I don’t think it could correct the error described by the OP.
Another possible issue that may (or may not) affect the case is the living arrangement of the couple pre-marriage. When I got married back in '96, there were two forms for the license (at least in LA County). Considering the marriage license is for recordkeeping and health department reasons, Form 1 basically said if you’re living together and are having sex already, sign here. Form 2 basically said if you’re not living together, answer this multitude of health questions.
We used Form 1 and I think the only 2 health questions were about STDs and whether we were knowingly sterile (back then a sterile person could not get married in Calif unless their future spouse knew about their inability to have children).
I have no thoughts on your legal matter, but I can answer this bit for myself and my husband. We had a religious ceremony called a handfasting - not a legal marriage - which we did not have a license for. It was performed by a minister, but we were all clear that it was not a legal marriage. Then, a month later, he and I went to the County Clerk and got a license. The next day (mandatory 24-hour waiting period in Illinois), he stopped by my work during my lunch hour. We handed the license to my boss, who was the minister who had performed the ceremony amonth earlier. She signed the license for us, and popped it into the outgoing mail slot. Two weeks later, we got our marriage certificate in the mail.
So our ceremony was July 27th, and our legal marriage was August 26th. My husband likes to say that we get to celebrate our anniversary for a whole month. I like to say he has 30 days to remember our anniversary and get it right!
Everyone will handle such a case a little differently. The important thing is to celebrate the day which means the most to you - that day you looked into her eyes and saw your whole future there.
