BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 1143
Assemblymember Ma
As Amended March 26, 2009
Hearing Date: June 23, 2009
Family Code
KB:jd
SUBJECT
Marriage: Name
DESCRIPTION
This bill, sponsored by the California Association of Clerks and
Election Officials, would create a simplified procedure to
correct clerical errors in a name listed on a marriage license,
and would clarify that prospective spouses who want to change or
combine their middle and last names may still retain their
original middle name.
BACKGROUND
In 2007, the Legislature enacted AB 102 (Ma, Chapter 567,
Statutes 2007), which established a process for persons getting
married or registering as domestic partners to adopt a new name,
and to have the new name reflected on the marriage license or
certificate of domestic partnership registration. In order to
avoid a cost concern raised by the Department of Public Health,
AB 102 specifically required parties to make any name changes at
the time of the marriage and did not allow them to change their
names through subsequent amendments to the marriage license.
However, in attempting to prevent subsequent name changes, AB
102 inadvertently prevented county clerks from correcting
clerical errors, such as spelling errors, in the name fields on
marriage licenses. This bill would create a simplified process
to correct clerical errors on the name fields in marriage
licenses. This bill would also clarify that prospective spouses
who want to change or combine their middle and last names may
still retain their original middle name.
(more)
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CHANGES TO EXISTING LAW
Existing law provides that parties to a marriage do not have to
have the same name. (Fam. Code Sec. 306.5.)
Existing law allows one party or both parties to a marriage to
elect to change the middle or last name by which that party
wishes to be known after solemnization of the marriage by
entering the new name in a space provided on the marriage
license form. (Fam. Code Sec. 306.5.)
Existing law provides a simplified process to correct errors of
fact on birth or death certificates, or marriage licenses.
(Health & Saf. Code Secs. 103225-255.)
This bill would provide that a party to a marriage may adopt a
new middle name or last name or both, and the new middle or last
name may include any combination of middle or last names of
either spouse.
This bill would allow an amendment to correct a clerical error
in a name field on the marriage license.
This bill would require that the amendment be signed by one of
the parties to the marriage and the county clerk or his or her
deputy.
This bill would define clerical error as an error made by a
county clerk, his or her deputy or notary authorized to issue
confidential licenses whereby the information in the new name
field of the marriage license does not match the information
contained in the marriage license application.
COMMENT
1. Stated need for the bill
According to the author, several instances of clerical errors
have been discovered in the new name fields since the
implementation of AB 102 (Ma) on January 1, 2009. In order to
minimize the impact to the parties of the marriage and avoid the
expense and time consuming process for counties to petition the
Superior Court to correct the errors, the California Association
of Clerks and Election Officials (CACEO) worked with the Office
of Vital Records to come up with a temporary work around to
correct these errors. However, the author states that this
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process is very time consuming and can take several weeks,
possibly months to complete.
The author also states that many applicants who are changing
their names shown on a marriage license application have
expressed a desire to retain their existing middle name, add
their birth name to the middle name field, and change their last
name to that of the other spouse. Current law requires that
they completely remove their existing middle name if they choose
to change their middle name to their current or birth last name,
or the last name of the other spouse.
This bill seeks to address both of these issues by creating a
procedure to correct clerical errors and clarifying which
combination of names parties to a marriage may use when entering
their new name on the marriage license.
2. This bill would create a simplified procedure for
correcting clerical errors on marriage licenses
Currently, there is a simplified procedure for correcting
clerical errors of fact on vital records. If facts are stated
incorrectly on a birth or death certificate or a marriage
license, two people with knowledge of the facts must sign an
affidavit under oath, stating the changes necessary to correct
the error. If the error is discovered while the record is still
with the county recorder, an amendment is prepared and
registered by the county recorder. Certified copies with the
amendment are available immediately. If the error is discovered
after the original record has been transmitted to the State
Registrar, the amendment must be sent to the State Registrar.
The State Registrar then reviews the amendment, and if the
change is accepted, sends copies of the amendment to the county
recorder. This process applies to amendments to all fields on
the forms, except the name fields on marriage licenses. (Health
& Saf. Code Secs. 103225-255.)
Pursuant to Family Code Section 306.5, prospective spouses may
change their middle names, last names, or both by entering the
new names on the marriage license application. However, once
the marriage license is completed, no change may be made to the
name fields on the form. This limitation was implemented due to
concerns expressed by the Department of Public Health that
permitting people to amend their marriage licenses with new
names at anytime would result in possible costs. Thus, if
parties about to be married are not sure about the new name they
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want to adopt, they may leave the spaces in the form blank, and
adopt their new names by common usage or by court order as
provided for under existing law. However, current law does not
permit correction of errors in the name fields on the marriage
license, even if the errors were clerical ones made by the
county clerks and not the parties.
Currently, a temporary work around process developed by the
CACEO and the California Department of Public Health (CDPH) is
utilized when clerical errors are discovered on marriage
licenses. If the parties are not yet married when the error is
discovered, the county may contact the parties, have them come
into the office, make the necessary corrections and reissue the
license at no cost to the parties. If the parties are already
married, the county must register the license with the error,
and transmit it to the CDPH for registration with a note asking
them to reject the license due to an error in the new name
field. After the CDPH rejects the license, the county contacts
the officiant, issues a duplicate license correcting the error
in the new name field, and then registers the duplicate license.
At this point parties to the marriage can finally obtain
certified copies of the record. According to the CACEO, in some
cases it has taken more than 30 days to complete this process,
during which parties are unable to obtain a certified copy of
the correct record.
This bill would allow for a correction of clerical errors in the
name field of marriage licenses. The error must have been made
by a county clerk, his or her deputy or notary authorized to
issue confidential licenses that result in the information in
the new name field not matching the information contained in the
marriage license application. The correction is made by way of
an amendment to correct a clerical error in a name filed on the
marriage license, signed by one of the parties to the marriage
and the county clerk or his or her deputy.
3. This bill would clarify which combination of names a party
may use on a marriage license
Under current law, one or both parties to a marriage may change
the middle or last name by which that party wishes to be known
after solemnization of the marriage by entering the new name in
a space provided on the marriage license form. (Fam. Code Sec.
306.5.) However, if a party would like to retain his/her
existing last name as a middle name, current law does not allow
for that party to retain the existing middle name. Instead,
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the party must completely remove their existing middle name and
use their current last name as the middle name. For example, if
"Jane Ann Doe" married "John Smith", she could not register
under the new name of "Jane Ann Doe Smith". She would have to
remove "Ann" and register as "Jane Doe Smith."
This bill would provide that parties to a marriage may add their
current or birth last name, or those of their prospective
spouse, to the middle name field of the license application
while retaining their current middle name. This would allow the
parties to continue to keep their original middle or last names,
while adding in additional names, but without hyphenating or
combining them into a new last name, if they so choose.
4. Opposition
In opposition, the California of Department of Public Health
writes:
While CDPH understands the desire to allow parties to a
marriage to use a combination of names to establish new middle
and last names, in doing so, persons could create innumerable
variations of names that result in no recognizable link to the
individual's current identity or that of their spouse. This
portion of the bill has the unintended consequence of
providing individuals the opportunity to completely change
their identities. The Department suggests amending the bill
to clarify that new middle names can only be comprised of
whole names, not segments of the names listed in Family Code
Section 306.5.
The author is currently working on amendments to address the
CDPH's concerns. Committee staff notes that it does not appear
to be the author's intent to allow individuals to utilize
marriage licenses to create completely new names. Committee
staff further notes that, although in California a statutory
procedure has been established for the formal changing of one's
name (Code Civ. Proc. Secs. 1275-1279.6), a person may change
his or her name without legal proceedings simply by adopting
another name and using it as his or her own. (See 83 Ops. Cal.
Atty. Gen. 136 (concluding that a common law change of name is
valid in California).) The purpose of the statutory procedure
is to have, wherever possible, an official record of the change,
but use of the statutory procedure is not necessary either prior
to commencing use of a new name, or for the purpose of rendering
a prior name change valid. Thus, even if this bill was amended
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to ensure that new names bear some recognizable link to the
parties' current names, individuals could still utilize the
common law method of adopting a completely different name
through usage at a further date. (Fam. Code Sec. 306.5.)
Support : None Known
Opposition : California Department of Public Health (unless
amended)
HISTORY
Source : California Association of Clerks and Election Officials
Related Pending Legislation : None Known
Prior Legislation : AB 102 (Ma, Chapter 567, Statutes 2007) See
Background.
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Floor (Ayes 75, Noes 0)
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