BILL ANALYSIS Ó
AB 2128
Page 1
Date of Hearing: April 19, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 2128
(Achadjian) - As Amended April 11, 2016
PROPOSED CONSENT
SUBJECT: MARRIAGE SOLEMNIZATION: ARMED FORCES
KEY ISSUE: SHOULD MEMBERS OF THE ARMED FORCES WHO ARE STATIONED
OVERSEAS AND SERVING IN CONFLICT OR WAR ZONES AND THEREFORE
ELIGIBLE UNDER CURRENT LAW TO MARRY IN CALIFORNIA THROUGH THE
USE OF AN ATTORNEY-IN-FACT, BE ALLOWED TO DO SO BY DECLARING
UNDER PENALTY OF PERJURY THAT THEY MEET THE STATUTORY
REQUIREMENTS?
SYNOPSIS
To prevent fraud, California has historically had a prohibition
on marriages by proxy, that is, marriages where one of the
parties is not present at the required solemnization and is
instead represented by an attorney-in-fact. In 2004, when the
wars in Afghanistan and Iraq were raging and reservists were
being called up for extended service with little warning, the
Legislature passed SB 7 (Brulte and Burton), Chap. 476, Stats.
2004, which established a process for marriage by proxy for
members of the armed forces who are serving overseas in conflict
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or war zones.
The current problem, according to the sponsor, the California
Association of Clerks and Elections Officials, is that a small
number of county clerks and state officials have questioned
whether some of the overseas military members seeking to marry
by proxy are actually in war or conflict zones and have, as a
result, rejected some requests to marry by proxy or later
rejected marriage license applications. Given the international
nature of today's evolving threat of terrorism, it may not be
clear to a county clerk or an official with the State Registrar
where conflict and war zones are located. Thus, it appears best
to accept a military member's signed declaration, which as
stated on the required form must be done under penalty of
perjury, that he or she is serving in war or conflict zone.
This bill seeks to do just that by providing that proper
completion of a power of attorney by a member of the armed
forces, stationed overseas and serving in a conflict or a war
zone and seeking to marry through an attorney-in-fact, is the
sole determinant as to whether the county clerk's office and the
State Registrar must accept the power of attorney and allow the
military member to get married. This bill is supported by
veterans' organizations and has no known opposition.
SUMMARY: Limits the power of a county clerk or the State
Register to reject a power of attorney from a member of the
Armed Forces stationed overseas and seeking to marry "by proxy."
Specifically, this bill provides that proper completion of a
power of attorney by a member of the armed forces, stationed
overseas, serving in a conflict or a war and seeking to marry
through an attorney-in-fact, is the sole determinant as to
whether the county clerk's office and the State Registrar must
accept the power of attorney and allow the military member to
get married.
EXISTING LAW allows a member of the United States armed forces
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who is stationed overseas and serving in a conflict or a war and
is unable to appear for licensure and solemnization of his or
her marriage to enter into that marriage by the appearance of an
attorney-in-fact, commissioned and empowered in writing for that
purpose through a power of attorney. (Family Code Section 420.)
FISCAL EFFECT: As currently in print this bill keyed
non-fiscal.
COMMENTS: To prevent fraud, California has historically had a
prohibition on "marriages by proxy," that is, marriages where
one of the parties is not present at the required solemnization
and is instead represented by an attorney-in-fact. In 2004,
when the wars in Afghanistan and Iraq were raging, reservists
were being called up for extended service with little warning.
Based on the needs of the conflict, some ended up serving
overseas for a year or longer, potentially wrecking havoc in the
lives of their loved ones left behind.
It was against that backdrop, the Legislature passed SB 7
(Brulte and Burton), Chap. 476, Stats. 2004, which established a
process for marriage by proxy for those members of the armed
forces who are serving overseas in a conflict or war zone. When
considering the bill, the Legislature heard from Theresa Arnold.
Her fiancé Marine Corps Lieutenant Thomas Cogan IV was
stationed in Iraq. Theresa and Thomas are expecting their first
child the next month, but under then-existing law, they have no
way to get married prior to the birth of their child. Allowing
marriage by proxy for members of the armed forces serving in a
conflict or war overseas has helped ensure that military
members' loved ones, including spouses and children, receive
critical health and other benefits. In the case of Theresa
Arnold and Thomas Cogan, their immediate marriage helped ensure
that prenatal and birth costs were covered and that both Theresa
and the baby received appropriate benefits should anything have
happened to Lieutenant Cogan while in Iraq. Without that bill,
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they may not have been entitled to receive such benefits,
whether in a timely manner or at all.
California is now one of only a handful of states, including
Texas and Colorado, that permit marriage by proxy. Montana
allows a "double proxy marriage" in which neither party must be
present in the state in order to legally marry, provided at
least one party is either a resident of Montana or a member of
the military.
The current problem, according to the sponsor, the California
Association of Clerks and Elections Officials, is that a small
number of county clerks and state officials have questioned
whether some of the overseas military members seeking to marry
by proxy are actually in war or conflict zones and have, as a
result, rejected some requests to marry by proxy or later
rejected marriage licenses. Given the international nature of
today's evolving threat of terrorism, it may not be clear to a
county clerk or an official with the State Registrar where
conflict zones are. Thus, it appears best to accept a military
member's signed declaration, which as stated on the required
form must be done under penalty of perjury, that he or she is
serving in war or conflict zone. This bill does just that by
providing that proper completion of a power of attorney by a
member of the armed forces, stationed overseas and serving in a
conflict or a war and seeking to marry through an
attorney-in-fact, is the sole determinant as to whether the
county clerk's office and the State Registrar must accept the
power of attorney and allow the military member to get married.
In support of the bill, the author writes:
In 2004, the Legislature overwhelmingly passed SB 7, which
allowed members of the Armed Forces to participate in a
AB 2128
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"marriage by proxy" so that if they were unable to attend
their marriage ceremony, they would still be able to get
married. Unfortunately, since then, numerous marriage
certificates have been denied because the California
Department of Public Health has deemed the person wasn't
stationed in an area of conflict or war. However, areas of
war or conflict are difficult to determine because it is
undefined and those areas are ever-changing. AB 2128 states
that the completion of the power of attorney is the sole
determinant as to whether the county clerk's office and the
State Registrar will accept the power of attorney. This will
ensure that the marriage certificate is honored and that the
county clerks and the State Registrar are not forced to
determine whether or not the service member is stationed in an
area of war or conflict.
REGISTERED SUPPORT / OPPOSITION:
Support
California Association of Clerks and Elections Officials
(sponsor)
AMVETS-Department of California
California Association of County Veterans Service Officers
Military Officers Association of America, California Council of
Chapters
AB 2128
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VFW-Department of California
Vietnam Veterans of America-California State Council
Opposition
None on file
Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334