BILL ANALYSIS Ó AB 380 Page 1 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." AB 380 Page 2 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 AB 380 Page 3 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: AB 380 Page 4 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 AB 380 Page 5 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 AB 380 Page 6 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 Page 7 Support Conference of California Bar Associations (sponsor) Opposition None on file Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334