Law Review: Failure to file license invalidates marriage? | SierraSun.com

Law Review: Failure to file license invalidates marriage?

Jim Porter
Law Review

In 2016, there were approximately 2,245,404 marriages in the United States and 827,261 divorces. That's discouraging.

A MARRIAGE

A marriage in California requires consent of the parties and issuance of a license and solemnization. The Family Code recites: "To solemnize the marriage, the parties shall declare, in the physical presence of the person solemnizing the marriage and necessary witnesses, that they take each other as spouses." Sounds easy enough.

In fact, so easy some of my friends have been married three or four times. Well not my friends, but some of yours.

HUSBAND AND WIFE

Leanne Netterstrom and Michael Chaney began dating in 2008 and living together in 2011, finally getting married in a ceremony in Cambria on Nov. 11, 2011. They obtained a marriage license, participated in the ceremony and exchanged vows before family and friends. And thereafter generally referred to themselves as husband and wife i.e. normal, normal.

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On the other hand, they filed separate tax returns as "single" people for tax reasons and purchased a home together as "domestic partners," taking title as "an unmarried man and unmarried woman as joint tenants." Taking title as joint tenants was surely the wrong thing to do, but that's for another day.

DISSOLUTION

In 2015, Chaney petitioned in court for dissolution of marriage. Remember when that was called a divorce? That law changed while I was in law school — two or three years ago as I recall.

Netterstrom never wanted to get married in the first place because she had been married twice before, and because Chaney supposedly gambled and was financially unstable. Nevertheless, Chaney proposed and Netterstrom accepted. I would not have put great odds on that marriage.

WE'RE NOT MARRIED!

Netterstrom, probably not happy because this would be her third divorce, claimed that the two of them were not really married because the wedding officiate failed to return and file the signed marriage license with the county clerk as required. Indeed the two agreed not to return the signed marriage license to the county and it remained in a desk drawer. Netterstrom claimed that she was off the hook. There never was a marriage.

COURT RULING

The Second District Court of Appeal looked at the case after the trial court ruled for Chaney: there was a marriage.

The Court of Appeal recited Family Code Section 306 which requires that a marriage be licensed, solemnized and authenticated and the license returned to the county recorder. So Netterstrom wins, right? Netterstrom loses because section 306 goes on to read "noncompliance with this part [return the signed license] by a nonparty to the marriage does not invalidate the marriage." And Section 423 of the Family Code requires the officiate (not the parties) to return the marriage license to the county recorder.

The officiant, who relied on the happily married couple to file the signed marriage license, didn't file the license as was required and because he was a nonparty to the marriage, his failure to do so did not invalidate the marriage.

These poor people not only could not get their marriage right, they couldn't get their divorce right. Wait till they learn they hold title as joint tenants — survivor gets the house.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. His practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com.