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:
AB 380
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Support
Conference of California Bar Associations (sponsor)
Opposition
None on file
Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334