BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 380


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          Date of Hearing:  April 7, 2015


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 380  
          (Waldron) - As Introduced February 18, 2015


                                  PROPOSED CONSENT


          SUBJECT:  Marriage: putative spouses


          KEY ISSUE:  SHOULD THE LAW BE CLARIFIED SO THAT ONLY THE  
          INNOCENT, PUTATIVE SPOUSE IN A VOID OR VOIDABLE MARRIAGE, IS  
          PERMITTED, WHEN THE MARRIAGE IS NULLIFIED, TO REQUEST THAT  
          PROPERTY BE DIVIDED AS THOUGH THE PARTIES HAD BEEN PROPERLY  
          MARRIED?


                                      SYNOPSIS


          A putative spouse is a spouse of a void or voidable marriage who  
          believed in good faith that the marriage was valid.  This  
          non-controversial bill clarifies that a court may not declare a  
          party to be a putative spouse or divide property as though the  
          parties were legally married unless requested to do so by the  
          innocent or putative spouse.  In support of the bill, the author  
          writes that this bill "avoids the unfair result that a spouse  
          who knew the marriage was void (e.g., a party who was already  
          married) would be able to benefit from his or her fraud, as at  
          least one court has interpreted the statute's current language."  








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           This bill is sponsored by the Conference of California Bar  
          Associations.  It has no known opposition.


          SUMMARY:  Limits who may be declared a putative spouse.   
          Specifically, this bill provides that a court, in a proceeding  
          to nullify a void or voidable marriage, may not declare parties  
          to be putative spouses or divide property as if the marriage had  
          not been void or voidable, unless requested to do so by the  
          party or parties who believed in good faith that the marriage  
          was valid.


          EXISTING LAW:  


          1)Defines marriages that are either void (involving incest or  
            bigamy) or voidable (including marriages in which one party  
            was incapable of consent, the spouse of one party was absent  
            for at least five years, or consent obtained by fraud or  
            force).  (Family Code Sections 2200-01.  Unless stated  
            otherwise, all further statutory references are to that code.)


          2)Provides a procedure to nullify a void or voidable marriage.   
            (Section 2250 et seq.)  


          3)Requires a court, if a determination is made that a marriage  
            is void or voidable and either party believed in good faith  
            that the marriage was valid, to declare that party or parties  
            to have the status of putative spouse (the party or parties  
            who believed in good faith that the marriage was valid) and to  
            divide the property that would have been community property if  
            the marriage had been valid as if it were community property.   
            (Section 2251.)


          4)Allows for an award of spousal support in the same manner as  








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            if the marriage had not been void or voidable, but only to a  
            putative spouse.  (Section 2254.)


          5)Allows an award of attorneys' fees for nullity of a void or  
            voidable marriage, but only to a party found to be innocent of  
            fraud or wrongdoing in inducing or entering the marriage and  
            free from knowledge of any matter for which nullity is sought.  
             (Section 2255.)


          6)Defines community property as all property acquired by a  
            married person during the marriage, and provides that  
            community property is to be divided to the parties equally on  
            dissolution of the marriage.  (Sections 760 and 2550.)


          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal.


          COMMENTS:  A putative spouse is a spouse of a void or voidable  
          marriage who believed in good faith that the marriage was valid.  
           This bill clarifies that a court may not declare a party to be  
          a putative spouse or divide property as though the parties were  
          legally married unless requested to do so by the innocent or  
          putative spouse.  In support of the bill, the author writes that  
          this bill "avoids the unfair result that a spouse who knew the  
          marriage was void (e.g., a party who was already married) would  
          be able to benefit from his or her fraud, as at least one court  
          has interpreted the statute's current language."  


          Brief Explanation of Void or Voidable Marriages:  A marriage  
          between close relatives -- parents and children, siblings, and  
          aunts or uncles and nieces or nephews -- is void as matter of  
          law, as is a marriage to someone who is already married.  In  
          addition, certain marriages are voidable and can be nullified.   
          A marriage is voidable if:








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                 One party could not consent to the marriage, was of  
               unsound mind or was not physically capable of "entering  
               into the marriage state";
                 One party's previous spouse, who was thought to be dead,  
               was not; or


                 Consent to the marriage was obtained by fraud or force.


          Void and voidable marriages are terminated when a court  
          determines them to be a nullity at which point the parties are  
          returned to an unmarried state.


          Putative Spouse Doctrine:  If a court determines that a marriage  
          is void or voidable and that either or both parties believed in  
          good faith that the marriage was valid, the court can declare  
          those parties putative parties and can divide the property as  
          though they had been married (dividing the "quasi-community  
          property" between the parties).  In addition, the court can  
          order spousal support paid to a putative spouse and can award  
          attorney's fees, if appropriate, to the spouse found "innocent  
          of fraud or wrongdoing" (essentially the putative spouse).   
          (Sections 2251, 2254, 2255.)  While the spousal support and  
          attorney's fees provisions specifically limit an award to the  
          innocent or putative spouse, the property division statute does  
          not specifically limit the choice to divide property as though  
          the parties were married to the putative spouse.


          A California court of appeals summed up the policy reasons  
          behind the putative spouse doctrine.  Its reasoning also  
          explains the need for this bill:


               The putative spouse doctrine is "an equitable doctrine  








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               first recognized by the judiciary, and later codified by  
               the Legislature."  In 1943, our Supreme Court stated that  
               "[i]t is well settled that a woman who lives with a man as  
               his wife in the belief that a valid marriage exists, is  
               entitled upon termination of their relationship to share in  
               the property acquired by them during its existence."


               The doctrine, however, cannot be invoked unless the  
               putative spouse has a good faith belief in the existence of  
               a valid marriage.   . . .


               The purpose of the doctrine is to protect the "innocent"  
               party or parties of an invalid marriage from losing  
               community property rights. . . . This conclusion is  
               dictated by simple justice, for where persons domiciled in  
               such a jurisdiction, believing themselves to be lawfully  
               married to each other, acquire property as the result of  
               their joint efforts, they have impliedly adopted . . . the  
               rule of an equal division of their acquisitions, and the  
               expectation of such a division should not be defeated in  
               the case of innocent persons."

          (In re Marriage of Guo and Sun (2010) 186 Cal. App. 4th 1491,  
          1496 (citations omitted).)


          California Supreme Court Clarifies That Good Faith Standard is  
          Subjective:  In a recent case, a unanimous California Supreme  
          Court clarified that when making a determination as to a party's  
          good faith belief in the marriage, the court must consider a  
          subjective standard and not an objective standard.  In  
          explaining the subjective standard, the court held:


               The good faith inquiry is a subjective one that focuses on  
               the actual state of mind of the alleged putative spouse.   
               While there is no requirement that the claimed belief be  








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               objectively reasonable, good faith is a relative quality  
               and depends on all the relevant circumstances, including  
               objective circumstances.  In determining good faith, the  
               trial court must consider the totality of the  
               circumstances, including the efforts made to create a valid  
               marriage, the alleged putative spouse's personal background  
               and experience, and all the circumstances surrounding the  
               marriage.  Although the claimed belief need not pass a  
               reasonable person test, the reasonableness or  
               unreasonableness of one's belief in the face of objective  
               circumstances pointing to a marriage's invalidity is a  
               factor properly considered as part of the totality of the  
               circumstances in determining whether the belief was  
               genuinely and honestly held.

          (Ceja v. Rudolph & Sletten (2013) 56 Cal.4th 1113, 1128.)


          ARGUMENTS IN SUPPORT:  The Conference of California Bar  
          Associations writes that the bill "is a reasonable and  
          much-needed bill to provide clarity to statutes and to reaffirm  
          both the Legislature's intent and the Supreme Court's holding  
          that the putative spouse doctrine is intended to protect only  
          the innocent spouse, not one who knowingly entered into an  
          invalid marriage."


          Previous Legislation:  The provision in this bill had been  
          included in the Committee's civil omnibus bill last year, AB  
          2747 (Judiciary), Chap. 913, Stats. 2014.  While it passed out  
          of this Committee and off the Assembly Floor, it was removed in  
          the Senate Judiciary Committee because it was deemed too  
          "substantive."

          REGISTERED SUPPORT / OPPOSITION:












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          Support


          Conference of California Bar Associations (sponsor)




          Opposition


          None on file




          Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334