Article for August 2009: What the Hell is a Putative
Spouse?
The Family Code does not define a
Putative Marriage nor does it provide for a Putative Partnership. It only
requires that the Status of putative Spouse be declared by a Court considering a
Petition for judgment of Dissolution or Nullity following determining [Fam C §2251]:
(1) That the marriage is void or
voidable; and
(2) That either or both of the
parties believed in good faith that the marriage was valid.
In order for a
putative marriage to exist, there must first be a marriage. If one party is
aware of the invalidity at the time of the marriage, or lacks a good faith
belief in the validity of the of the marriage, only the innocent party qualifies
for the status of putative spouse. [In Re the Marriage of Monti
(1982, 2nd dist) 135 Cal App 3rd 50, 185 Cal
Rptr 72] Furthermore under case law, a putative marriage is defined as
one that has been solemnized in due form and celebrated in good faith on the
part of one or both of the parties, but by reason of some legal infirmity, is
either void or voidable. [Estate of Long (1961, 2nd
Dist) 198 Cal App 2d 732, 18 Cal Rptr 105; Miller v. Johnson (1963,
2nd
Dist) 214 Cal App 2d 123, 29 Cal Rptr 251]
Thus the two Requisites to a
putative marriage are generally (1) solemnization of the marriage; and (2) a
good faith belief in the validity of the marriage by one or both parties.
[Brown v. Brown (1969, 5th Dist) 274 Cal App 2d 178, 82 Cal
Rptr 238]
WHERE THE PUTATIVE SPOUSE ISSUE ARISES:
The Putative
marriage issue ordinarily arises when the parties are terminating their
relationship or when one partner dies, and a dispute ensues, which develops over the validity
of the marriage. A determination is important where support is at issue or
property rights must be determined. After all if you don't own anything what is
there to fight over? The putative spouse issue commonly arises
where one party obtains an illegal "divorce" in a foreign
jurisdiction, such as Mexico. The "divorced" party, believing his
or her marriage to be legally dissolved, then marries a new spouse. Should the
new couple subsequently file for dissolution of their marriage, the putative
marriage issue may arise if either party claims that the second marriage was not
valid because the Mexican divorce was not a legally recognized divorce, which it isn't.
Which is why you should never believe the bride or groom's representation
that all is alright. It is better to take the advice of the old carpenter and
"check twice and cut once."
The putative
spouse issue may also arise where a party dies and is survived by a spouse to
whom he or she is not legally married because the decedent was still legally
married to another person. A putative marriage issue develops if the legal
spouse claims survivorship benefits from the decedents estate, or if the
defendant in a wrongful death or loss of consortium action challenges the
validity of the marriage. Of course, it is likely that the surviving spouse, at
the time of death of the decedent, will be unaware of the invalidity of the
marriage. Although no California Court has decided whether a cause of action for
loss of consortium may be brought by a putative spouse, one court has stated
that it would be anomalous to deny a cause of action for loss of consortium to a
putative spouse who is otherwise eligible to seek damages for wrongful death.
[Ledger v Tippet (1985, 2nd Dist) 164 Cal App 3d 625, 210
Cal Rptr 814]
ELEMENTS OF A PUTATIVE MARRIAGE
REQUIREMENT OF GOOD FAITH
Good Faith is
an essential component to a putative marriage. A putative marriage cannot exist unless one of
the parties believes the marriage is valid. [Brown v. Brown (1969,
5th Dist) 274 Cal App 2d 178, 82 Cal Rptr 238] Here neither
party believed that they were married, as such this relationship fails to meet
the first test of a putative marriage. Good Faith is a question of fact to be
determined by the trial court based on all of the circumstances. [In Re
the Marriage of Monti (1982, 2nd dist) 135 Cal App
3rd 50, 185 Cal Rptr 72]
Estate of
Vargas (1974, 2nd Dist) 36 Cal App 3d 714, 111 Cal Rptr
779, 81 ALR3d 1] Some of the circumstances considered by the Court in determining
whether a spouse had a good faith belief that the marriage was valid include the
following [Spellens v Spellens
(1957) 49 Cal 2d 210, 317 P2d 613]:
(1) Claimant’s
educational background;
(2) Claimant’s
degree of sophistication;
(3) Claimant’s
familiarity and experience with marriage and divorce requirements and laws;
(4) Claimant’s
reliance on assurances made by bad faith party, and how those assurances were
affected by differences in the parties, age, education and sophistication; and
(5) Other factors
evidencing claimant’s good faith belief in the marriage, such as standing in the
community, marriage documents, and family activities.
It is presumed
that persons who participate in marriage ceremonies do so in good faith.
[Brown v. Brown (1969, 5th Dist) 274 Cal App 2d 178, 82 Cal
Rptr 238] Although the recent trend is to judge good faith by an
objective standard, previously some courts have focused only whether the belief
was honestly held–a subjective test. Thus, in an action to determine heirship
brought by the children of a decedent’s first marriage, the court applied a
subjective test, focusing solely on whether the claimant honestly believed that
the marriage was valid. The alleged putative wife of the decedent had married
someone else (her third marriage) 3 weeks prior to the putative marriage. The
only evidence that she believed that the marriage had been annulled, and that
the decedent was free to marry (a matter also in question) at the time of their
alleged marriage (of which she was unable to obtain any record), was her own
testimony that she had obtained the annulment from an attorney in his office
without having to appear in a court or before a judge. Acknowledging that this
evidence was weak, the appellant court none the less upheld the trial court’s
finding of a putative marriage, pointing out that the couple had held themselves
out and acted as husband and wife for 16 years after the alleged ceremonial
marriage, that the property under consideration resulted from the couple’s hard
work during this time, and that the equities were therefore on the side of the
finding of a putative marriage. [Estate of Goldberg
(1962, 1st
Dist) 203 Cal App 2d 402, 21 Cal Rptr 626]
In an action under
the wrongful death statute, a woman who was found to believe in good faith that
she was validly married was granted putative spouse status, even though the
alleged marriage was based upon a private exchange of vows. Here the Couple held
themselves out as husband and wife, had a child, and lived together for
approximately 2 years until the husband’s death in a traffic accident.
[Wagner v County of Imperial (1983, 4th Dist) 145
Cal App 3d 980, 193 Cal Rptr 820]
Recent cases have
stated that "good faith belief" is a legal term of art which is
tested by an objective standard. [Centinela Hospital Medical Center v
Superior Court (1989, 2nd Dist) 215 Cal App 3d 971, 263 Cal Rptr
672; In Re Marriage of Vryonis (1988, 2nd Dist) 202 Cal App 3d
712, 248 Cal Rptr 807] Under such a standard, a party should not be
granted putative spouse status if his or her belief in the validity of the
marriage was based upon honest, but completely unreasonable, belief.
[Spearman v Spearman (1973, CA5 Ala) 482 F2d 1203
(interpreting California law)
Where there has
been no attempted compliance with the procedural requirements of a valid
marriage, and where the usual indicia of marriage are absent, a belief in the
existence of a valid marriage, although sincerely held, would be unreasonable
and therefore lacking in good faith. Thus in an action for dissolution, it was
held that the trial court erred in finding that a woman had the status of
putative spouse. She had performed a private Moslem Muta Ceramony in her
apartment with only the parties present. There was no solemnization by a third
party, no license was obtained, and no attempt was made to authenticate or
record the marriage. The absent indicia of marriage considered by the Court
included:
(1) They did not
live together,
(2) They
kept the marriage secret;
(3) They did not
"hold themselves out" as spouses;
(4) They did not
commingle finances;
(5) They did not
support each other financially;
(6) They did not
file joint tax returns;
(7) They did not
acquire property in joint title;
(8) The woman did
not take the man’s last name; and
(9) The man dated
others with the woman’s knowledge.
The facts were at odds
with the formation and existence of a valid marriage, the woman could not
reasonably rely on the man’s statements to believe that she was married. [
In Re Marriage of Vryonis (1988, 2nd Dist) 202 Cal App 3d 712,
248 Cal Rptr 807] Here the parties made no attempt to marry, in fact
they couldn’t marry because to do so was not authorized by California law until
the Supreme Court authorized it in 2007. The voters of California have since
nullified the Supreme Court opinion under proposition 8, which was up on appeal
as we speak. The Court has determined the legality of proposition 8,
the termination of right of gays to marry was upheld as legal.
Similarly, in a
wrongful death action, it was held that an alleged putative spouse’s belief in
the validity of his common law marriage was unreasonable as a matter of law,
since California abolished common law marriage in 1895. The claimant conceded
that the couple had never made any attempt to comply with the procedural
requirements of a valid marriage. Although the couple exchanged private vows and
lived together and held themselves out as husband and wife for approximately 10
years, these actions were insufficient to support a reasonable good faith belief
in a lawful California marriage. [Centinela Hospital Medical Center v
Superior Court (1989, 2nd Dist) 215 Cal App 3d 971, 263 Cal Rptr
but see
[Wagner v County of Imperial
(1983, 4th Dist)
145 Cal App 3d 980, 193 Cal Rptr 820]
A spouse who
continues to live with a former spouse in ignorance of a final divorce decree
and with a good faith belief in the continuing validity of the marriage is a
putative spouse. [Feig v. Bank of America Nat. Trust & Sav. Assoc.
(1936) 5 Cal 2d 266, 54 P2d 3; Lazzarevich v Lazzarevich
(1948) 88 Cal App 2d 708, 200 P2d 49] Thus, a wife was found to be a
putative spouse where she and her husband had sought a divorce but had reconciled
prior to the final divorce decree, the husband had assured her that the decree
could not become final unless he appeared in Court, but the divorce did become
final when her attorney entered the final decree without her knowledge. [In
Re the Marriage of Monti (1982, 2nd dist) 135 Cal
App 3rd 50, 185 Cal Rptr 72]
INVALIDITY OF MARRIAGE
The determination
that a marriage is void or voidable is a statutory prerequisite to the finding
of a putative marriage [Fam C §2251] which provides in pertinent part:
2251. (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;
(2) If
the division of property is in issue, divide, in accordance with Division 7
(commencing with Section 2500), that property acquired during the union which
would have been community property or quasi-community property if the union had
not been void or voidable. This property is known as "quasi-marital property".
(b) If
the court expressly reserves jurisdiction, it may make the property division at
a time after the judgment.
However, this
determination has been construed as simply requiring a threshold finding that a
legal infirmity in the formation renders a marriage invalid. [ In Re
Marriage of Vryonis (1988, 2nd Dist) 202 Cal App 3d 712, 248 Cal
Rptr 807] Thus, where a divorce is finalized without the wife’s
knowledge and she and her husband reconciled and began living together as
husband and wife without remarrying, a putative marriage could be found, and the
trial court erred in dismissing the wife’s petition on the ground that she was
not a putative spouse due to a lack of a void or voidable marriage [In
Re the Marriage of Monti (1982, 2nd dist) 135 Cal
App 3rd 50, 185 Cal Rptr 72] Similarly, where a woman
performed a private religious ceremony and the couple did not thereafter cohabit
or hold themselves out as husband and wife, these circumstances did not give
rise to either a void or voidable marriage, but finding in and of itself did not
preclude relief under the putative marriage doctrine. [ In Re Marriage
of Vryonis (1988, 2nd Dist) 202 Cal App 3d 712, 248 Cal Rptr 807]
QUASI-MARITAL PROPERTY
Strictly speaking,
there can be no community property without a valid marriage. [Wilkerson
v Wilkerson (1970, 2nd Dist) 12 Cal App 3d 1164, 91
Cal Rptr 372] However, a person who enters into an invalid marriage in
good faith, believing himself or herself to be a lawful spouse, acquires rights
in property analogous to the community property rights of a lawful spouse.
Property acquired by the parties to a putative marriage which would have been
community or quasi-community property if the marriage had not been void or
voidable is known as "quasi-marital property." Fam C §
2251(a)(2)
2251. (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.
(2) If the division of property is in issue, divide,
in accordance with Division 7 (commencing with Section 2500), that
property acquired during the union which would have been community
property or quasi-community property if the union had not been void or
voidable. This property is known as "quasi-marital property".
(b) If
the court expressly reserves jurisdiction, it may make the property division at
a time after the judgment.
This property must
be divided under Fam C §§ 2500 et seq. Exactly as it would be divided in a
proceeding for dissolution or legal separation of a valid marriage. [Fam C
§ 2251(a)(2)] The court may reserve jurisdiction and make the property
division at a time subsequent to the judgment [Fam C §2251(b)]The
evidentiary presumptions applicable to community or quasi-community property
also apply to quasi-marital property. [See In re Marriage of Neal
(1984, 1st Dist) 153 Cal App 3d 117, 200 Cal Rptr 341 (applying
former CC §§ 4800.1 and 4800.2 to a putative marriage)]
BAD FAITH PARTNER
Unlike the law of
dissolution and legal separation under which evidence of specific acts of
misconduct is generally improper and inadmissable [Fam C. § 2335],
the law of nullity is replete with references to "fraud"
[Fam C. § 2210(d), 2211(d), 2255], "force" [Fam
C. 2210(e), 2211(e)], "injured" party [Fam C.
§2211(c), 2211(f)], "good faith" [Fam C.
§2251(a)], "innocent" [Fam C. §2255], and
"wrongdoing" [Fam C. §2255]. Frequently one of the parties was
aware of the marriage’s invalidity and hence acted in bad faith. The question
then arises whether the bad faith partner to a putative marriage is entitled to
equal division of the quasi-marital property. This issue is raised and
discussed, but not resolved, in [In re Marriage of Cary (1973, 1st
Dist) Cal App 3d 345, 109 Cal Rptr 862 and Marvin v. Marvin (1976) 18 Cal
3d 660, 134 Cal Rptr 815, 557 P2d 106,] both of which deal with
non-marital relationships, not putative marriages, The Marvin court indicated
that in a putative marriage, the parties will arrange their economic affairs in
expectation that if the relationship is later dissolved, the property will be
divided equally.
If the "guilty"
spouse receives one-half of the quasi-marital property as required under Fam C.
§ 2251, expectations of the "innocent" spouse have not been frustrated. [
Marvin v. Marvin (1976) 18 Cal 3d 660, 134 Cal Rptr 815, 557 P2d 106,]
SPOUSAL SUPPORT
The Court may,
during the pendency of a proceeding for nullity of marriage, or on judgment,
order a party to pay support of the other party in the same manner as if the
marriage had not been void or voidable, provided that the party for whose
benefit the order was made is found to be a putative spouse. [Fam C. § 2254]
Accordingly the Court must determine whether the spouse applying for support
knew of the invalidity of the marriage or partnership.
THE LATEST TREATMENT OF A PUTATIVE SPOUSE REGARDING DOMESTIC
PARTNSERSHIPS
There is an
incongruence between two cases which are of co-equal persuasion and authority.
The first is [ In re Domestic Partnership of Ellis & Arriga (2008,
4th Dist) 162 Cal App 4th 1000 published by
the Fourth District, Division three and [Velez v Smith 142 (2006, 1st
Dist) Cal.App.4th 1154 published first by the First District, Division
one. These decisions are diametrically opposed to one another, as such there is
a tendency to give the latest decision the most weight because it is the last
visitation to the subject. Since the Districts are co-equals, one district's
holding is not entitled to being treated as superior to the other districts'
holding.
This issue also
involves issues that are also tangentially impacted by proposition 8, which was
before the Supreme Court which determined that Proposition 8 has been properly
enacted by the people of the State of California. However as applied to
gays the Supreme Court Decision doesn't impact the issue of Putative Spouse,
which means that the issue is still up in the air. Although in my opinion if the
Supreme Court must pick one decision to make the law of the land, it should pick
the Velez decision as the most fair and well thoughtful decision. The rational
for this decision is that the court found that the putative issue doesn’t
apply because the legislature didn’t formally extend the concept to Putative
marriage to Domestic Partnerships by amending the law.
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