BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 380 (Waldron)
Version: May 14, 2015
Hearing Date: June 16, 2015
Fiscal: No
Urgency: No
NR
SUBJECT
Marriage: putative spouses
DESCRIPTION
Existing law specifies the circumstances under which a marriage
is void or voidable, and requires the court to declare either
party, who believed in good faith that the marriage was valid,
to have the status of a putative spouse and to divide the
quasi-marital property as if it were community property.
This bill would, instead, require the court, only upon request
of a party who is declared a putative spouse, to divide the
quasi-marital property as if it were community property.
BACKGROUND
The California Family Code defines legal marriage as a "personal
relation arising out of a civil contract between two persons, to
which the consent of the parties capable of making that contract
is necessary." (Fam. Code Sec. 300.) Although marriage is
generally treated as a private and personal decision, the courts
have long held that the state has an important interest in the
institution of marriage, and has therefore regulated limits for
those who can marry based on a variety of factors, including
age, affinity, consanguinity, and mental capacity.
The putative spouse doctrine is considered a remedial device to
validate an otherwise invalid marriage. Exercising equitable
powers, the courts have invoked the putative spouse doctrine to
protect those who in good faith, attempted to comply with the
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formalities required for valid marriage. In general, the
doctrine applies when at least one of the parties has a good
faith belief in the existence of a legal marriage. Even before
its codification by the legislature in 1969, the courts applied
the doctrine to both void and voidable marriages. The
codification of the putative spouse doctrine was part of a
comprehensive revision of California's family laws which
included the introduction of no-fault divorce. Thus, prior to
1970, fault impacted the division of property in a divorce,
entitling the "innocent" spouse to a greater share of the
community property.
In In re Marriage of Tejeda (2009) 179 Cal.App.4th 973, the
Court of Appeal looked at the case of a bigamous husband and
innocent wife living in a putative marriage for over thirty
years. When the husband petitioned for dissolution, the wife
petitioned for nullification and requested that property titled
in her name be confirmed as her separate property. The court
found the putative spouse statute was clear and unambiguous,
requiring that upon a finding that one spouse has a good faith
belief in the existence of a legal marriage, the union itself
becomes a putative marriage. The property acquired during the
putative marriage, although titled in the innocent wife's name,
was then characterized as quasi-marital property and divided
equally between the spouses.
This bill, seeking to better protect "innocent" spouses, would
amend the Family Code to provide that only a putative spouse,
who believed in good faith that the marriage was valid, can
elect to have quasi-community property divided equally between
the spouses.
CHANGES TO EXISTING LAW
Existing law defines marriages that are either void (i.e.,
involving incest or bigamy) or voidable (e.g., 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). (Fam. Code Secs. 2200-01.)
Existing law provides that if a marriage is void or voidable and
either party believed in good faith that the marriage was valid,
the court must declare the party or parties to have the status
of putative spouse, and divide the property that would have been
community property if the marriage was valid as if it were
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community property. (Fam. Code Sec. 2251.)
This bill would, for the purposes of community property,
prohibit the court from determining that a spouse was putative
unless he or she personally had a good faith belief that the
marriage was valid.
This bill would prohibit the court from dividing property as if
the marriage had been valid unless requested to do so by a
putative spouse.
COMMENT
1.Stated need for the bill
According to the author:
While other provisions of the Family Code include provisions
of the putative spouse doctrine and grant relief only to a
putative (i.e., innocent) spouse, the language of Family Code
Section 2251 applies community property to any case where
there is a putative spouse, even when that would not benefit
the putative spouse. ? AB 380 would revise the language of
Family Code Section 2251 to make clear that the community
property division in that statute can only be invoked at the
request, and for the benefit, of the putative spouse.
2.Would allow an innocent spouse to elect how quasi-marital
property is divided
This bill, seeking to address what the Conference of California
Bar Associations, sponsor, calls a "split" in case law, would
provide that only an "innocent spouse" may request a division of
quasi-community property. The sponsor argues that this bill
would "make the statute consistent with related statutes and the
historic intent of the putative spouse doctrine."
To that end, this bill would arguably invalidate In re Marriage
of Tejeda (2009) 179 Cal.App.4th 973 where the court, after
finding that the wife was indeed an innocent spouse, deemed the
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marriage a putative marriage, and divided all property acquired
during the marriage equally between parties (see Background). In
reaching its decision, the Tejeda court considered two related
statutes and the purpose of the putative spouse doctrine.
Family Code Section 2254 permits an order of spousal support for
a putative spouse, and Section 2255 provides for attorney's fees
and costs to innocent putative spouses. Since the Legislature
singled out the "innocent" party in providing for fees, and
likewise singled out the "putative spouse" in providing for
support, but did not limit quasi-marital property division to an
innocent spouse, the Tejeda court concluded that the Legislature
intended for an equal division of the marital property even if
one of the spouses was "guilty."
Proponents of this bill argue that its provisions are needed to
protect an innocent spouse from a spouse who knowingly entered
into a bigamous marriage, did not contribute to the community,
and seeks to take half of the quasi-community property. In
support, the Association of Certified Family Law Specialists
writes that this bill would ensure that "a party who did not
believe in good faith that the marriage was valid shall not be
entitled to the status of putative spouse and shall not be
entitled to request the court to issue an order dividing the
property that 'would have been' community or quasi-community
property." Staff notes that while the result in Tejada appears
to have created a windfall for the bigamous husband, the
property division actually gave the innocent wife what she
expected from a legal marriage - an equal division of the
marital property.
This bill would, instead, allow an innocent spouse to decide
whether he or she would like to take a community share, or
alternatively have all property deemed separate property. This
would arguably create an additional factor that parties to a
dissolution will dispute, and may be underused by
self-represented litigants who do not understand how the
putative spouse doctrine is applied.
3.Subjective standard used in determining if a spouse is
innocent
In 2013, the California Supreme Court held that in determining
whether a spouse had a good faith belief in the validity of a
marriage is an inquiry of a subjective nature that focuses on
the actual state of mind of the alleged putative spouse. In
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Ceja v. Rudolph and Sletten, Inc. 56 Cal.4th 1113, the court
explained:
While there is no requirement that the claimed belief be
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. (Id. at 1128.)
Thus, the law protects individuals who had a genuine, good faith
belief in the validity of a marriage, whether or not that belief
was objectionably reasonable. As more and more individuals
represent themselves in family law courts, the need to protect
genuinely held, good faith beliefs takes on additional
importance. With regard to the putative spouse doctrine, the
subjective nature of this inquiry should also serve to protect
individuals who learned of a defect after marriage, but thought
in good faith that remedying the defect would validate a
marriage.
Support : Association of Certified Family Law Specialists;
Executive Committee of the Family Law Section of the State Bar
Opposition : None Known
HISTORY
Source : Conference of California Bar Associations
Related Pending Legislation : None Known
Prior Legislation : SB 254 (Harman, 2011), substantially similar
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to this bill, was never set for hearing.
Prior Vote :
Assembly Floor (Ayes 79, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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