What is Legal Marriage?
In California, marriage is defined by Family Code 300, which 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…”
Family Code 306 then states, “Except as provided in Section 307, a marriage shall be licensed, solemnized, and authenticated, and the certificate of registry of marriage shall be returned as provided in this part. Noncompliance with this part by a nonparty to the marriage does not invalidate the marriage.
Bad “Legal Advice” on TikTok
I recently saw this video on TikTok where the creator advised, “Don’t get married legally! Just ceremonially” and “don’t turn in the certificate” because presumably because, as long as you are not “legally” married, the law doesn’t apply.
First off, NEVER take legal advice from TikTok. Or Instagram, Youtube, Twitter, or ANYONE other than your RETAINED attorney!
So what’s the law?
California Family Code 2251 states, “(a) If a determination is made that a marriage is void or voidable and the court finds that either party or both parties believed in good faith that the marriage was valid, the court shall: (1) Declare the party or parties to have the status of a putative spouse.”
Which means, if ONE PERSON (that putative spouse) believes in good faith that the marriage (albeit ceremonial) was valid, they should have the status of a “putative spouse”.
A “putative spouse” will be conferred rights just like a spouse, and will get a share of community property. (Except since they are technically not married, the property is called “quasi-community property). In addition, they are entitled to “spousal support” by virute of their status as “putative spouse”, even if not married.
Putative Spouse v. Common Law Marriage
Doesn’t putative spouse sound like common law marriage?
In effect – yes, but the technical difference is in the states that recognize common law marriage, you are considered “married” by the state. (Alabama, Colorado, District of Columbia, Georgia (if created prior to 1997), Idaho (if created before 1996), Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only),Ohio (if created prior to October 1991), Oklahoma, Pennsylvania (if created before Septamber 2003), Rhode Island, South Carolina, Texas and Utah).
A “putative spouse” is NOT married. They just get the same rights as spouses.
Examples of “Putative Spouse”
- This TikTok man “ceremonially” marries and never turns in the certificate. His “wife” never knew. Later, he says, “We weren’t legally married!” WRONG! If his “wife” reasonably believed they were in good faith married, she would have the status of a “putative spouse”.
- Adam and Eve marry after Eve was divorced. (or so she thought). Turns out, Eve’s divorce was done wrong and she’s still married! Because Adam didn’t know, he would be a “putative spouse”.
Good Faith is Determined SUBJECTIVELY
Let’s say that this TikTok man says to his “wife” – there is NO reasonable way you believed we were married! I even made a TikTok saying it was ONLY “ceremonial”! No OBJECTIVE person would believe this.
WRONG! The standard is “subjective”, as to the mind of the”putative spouse”. She should argue, “I never saw your TikTok video” – OR, “I thought thatwas a joke, I always thought we were married.”
Get a Prenup
Instead of trying to “trick”people out of a “legal marriage”, do it the proper way and GET A PRENUP. Afraid of losing property rights? Paying alimony? These are all things you can address with a valid prenuptial agreement.