BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 2128 (Achadjian)
Version: April 11, 2016
Hearing Date:
Fiscal: No
Urgency: No
NR
SUBJECT
Marriage
DESCRIPTION
Existing law allows a member of the Armed Forces of the United
States, who is stationed overseas and serving in a conflict or a
war and is unable to appear for the licensure and solemnization
of a 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, as specified.
This bill would provide that the completion of the power of
attorney is the sole determinant as to whether the county
clerk's office or State Registrar may accept the power of
attorney.
BACKGROUND
To prevent fraud, California has historically had a prohibition
on "marriages by proxy," or, marriages where one party is not
present at the required solemnization and is instead represented
by an attorney in fact. After extended periods of deployment of
U.S. Forces in Iraq and Afghanistan in the early 2000s, the
Legislature enacted SB 7 (Brulte and Burton, Ch. 476, Stats.
2004) which allowed members of the armed forces to marry by
proxy if they were serving in a conflict or war. That bill was
"designed to help those serving our country in times of crises
marry and provide needed benefits and recognition to their loved
ones." (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 7
(2003-2004 Reg. Sess.) as amended Aug. 12, 2004.)
This bill, seeking to ensure members of the Armed Forces are
able to exercise this privilege, would clarify the county
clerk's and State Registrar's role in evaluating an applicant's
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request to marry by proxy.
CHANGES TO EXISTING LAW
Existing law specifies that no particular form for the ceremony
of marriage is required for solemnization of the marriage, but
the parties shall declare, in the physical presence of the
person solemnizing the marriage and necessary witnesses, that
they take each other as spouses. (Fam. Code Sec. 420)
Existing law provides that, notwithstanding the provision above,
a member of the Armed Forces of the United States who is
stationed overseas and serving in a conflict or a war and is
unable to appear for the licensure and solemnization of the
marriage may 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, if the following
requirements are met:
the attorney in fact must personally appear at the county
clerk's office with the party who is not stationed overseas;
the attorney in fact must present the original power of
attorney duly signed by the party stationed overseas and
acknowledged by a notary or witnessed by two officers of the
United States Armed Forces; and
the power of attorney shall state the full given names at
birth, or by court order, of the parties to be married, and
that the power of attorney is solely for the purpose of
authorizing the attorney in fact to obtain a marriage license
on the person's behalf and participate in the solemnization of
the marriage.
Existing law provides that the original power of attorney shall
be a part of the marriage certificate upon registration.
This bill would additionally provide that the completion of a
power of attorney shall be the sole determinant as to whether
the county clerk's office and the State Registrar will accept
the power of attorney.
COMMENT
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1.Stated need for the bill
According to the author:
When SB 7 was passed in 2004, it didn't define "area of
conflict or war," therefore, marriage licenses that were
issued by county clerks have been rejected by the State
Registrar since they deemed some military bases overseas as
not in an area of conflict or war. [?] This bill would ensure
that the completion of the power attorney by the Service
Member is the sole determinant as to whether the county clerk
and State Registrar accept the marriage.
2.Determining "conflict zones"
When considering SB 7 (Brulte and Burton, Ch. 476, Stats. 2004),
the Legislature heard from a woman whose fiancé was stationed in
Iraq. The couple was expecting their first child the next
month, but under then-existing law, had no way to get married
prior to the birth of their child. The passage of SB 7 helped
ensure that prenatal and birth costs were covered and that both
the mother and the baby received appropriate benefits should
anything have happened to her fiancé in Iraq. Without that
bill, they, and many couples in similar circumstances, may not
have been entitled to receive such benefits.
SB 7, which limited the availability of marriage by proxy to
members of the armed forces serving overseas in a conflict or
war, included a number of other safeguards to protect against
abuse of the process, including that the power of attorney: (1)
must be signed by a notary or witnessed by two officers of the
United States Armed Forces; (2) is limited to the purpose of
obtaining a marriage license and participating in the
solemnization of the marriage; and (3) shall be part of the
marriage certificate.
The sponsor argues that some county clerks and state officials,
despite the safeguards required for the signing of a power of
attorney, have questioned whether an applicant is actually
serving in a conflict zone or a war, and have rejected some
requests to marry by proxy or have later rejected marriage
licenses. Arguably, a member of the Armed Forces stationed
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overseas is in a better position than a county clerk or employee
of the State Registrar to determine whether he or she is serving
in a conflict or a war. Accordingly, this bill would clarify
that the role of the county or state in approving a request for
a marriage by proxy is to determine whether a power of attorney
has been properly executed by the applicant.
In support, the California Association of Clerks and Election
Officials write:
The issue addressed by AB 2128 is related to years of
uncertainty on the part of the county clerk to determine, with
certainty, whether locations around the world qualify as
"areas of conflict or war." Counties have been receiving
queries regarding specific locations and have not been able to
locate a resource or method to deliver a definitive answer to
their customers as to whether they can use this process.
This bill will amend the Code to clarify that the completion
of the power of attorney shall be the sole determinant as to
whether the county clerk's office and the State Registrar will
accept the power of attorney. This language would bring
certainty to this special privilege and remove the concern
that a marriage license may be rejected later in the process;
leaving the applicant with minimal recourse.
Support : AMVETS-Department of California; California
Association of County Veterans Service Officers; Military
Officers Association of America, California Council of Chapters;
VFW-Department of California; Vietnam Veterans of
America-California State Council
Opposition : None Known
HISTORY
Source : California Association of Clerks and Elections Officials
Related Pending Legislation : None Known
Prior Legislation : SB 7 (Brulte and Burton, Chap. 476, Stats.
2004), see Background.
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Prior Vote :
Assembly Floor (Ayes 76, Noes 0)
Assembly Veterans Affairs Committee (Ayes 9, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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