BILL ANALYSIS
AB 1102
Page 1
Date of Hearing: April 19, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 1102 (Hancock) - As Amended: April 14, 2005
SUBJECT : MARRIAGE
KEY ISSUES :
1)TO PREVENT REPORTED DELAYS, OVERCHARGING AND FRAUD, SHOULD
COUNTY CLERKS ESTABLISH POLICIES AND PROCEDURES FOR NOTARY
PUBLICS THAT ARE AUTHORIZED TO ISSUE CONFIDENTIAL MARRIAGE
LICENSES, INCLUDING MORE EXTENSIVE TRAINING OF THE NOTARIES,
AND SHOULD THE ANNUAL FEE FOR THESE NOTARIES BE RAISED TO
$400?
2)SHOULD INDIVIDUALS SEEKING TO BE MARRIED BE REQUIRED TO APPEAR
TOGETHER, IN PERSON BEFORE THE COUNTY CLERK TO OBTAIN THEIR
MARRIAGE LICENSE, SUBJECT TO SPECIFIED EXCEPTIONS?
3)TO CONFORM TO ACTUAL PRACTICE, SHOULD OTHER TECHNICAL AND
CLARIFYING CHANGES BE MADE REGARDING ISSUANCE OF MARRIAGE
LICENSES?
SYNOPSIS
This bill, sponsored by the California Association of Clerks and
Election Officials, seeks to make technical and clarifying changes
to the law regarding issuance of marriage licenses and to establish
procedures for issuing confidential marriage licenses through
notary publics. This bill would also require both parties to a
marriage license to appear, in person, together before the county
clerk, subject to exceptions. Counties that issue confidential
marriages to notary publics report significant problems with them,
resulting in delays, overcharging and fraud. This bill seeks to
correct those problems by enabling county clerks to set policies
and procedures for the acceptance of applications of notary publics
to issue confidential marriage licenses, requiring more extensive
training of the notary publics and giving clerks the authority to
suspend or revoke the notary public's application if necessary. It
would also raise the annual application fees for these notaries
from $175 to $400.
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According to the author, this bill is necessary to clarify
outdated and unclear language of statutes to reflect current
procedures for issuance and registration of marriage licenses.
In addition, it creates stricter regulations for the issuance of
confidential marriage licenses in order to minimize fraud as
well as increase the proficiency of notary publics who are
authorized to issue confidential marriage licenses. There is no
opposition to the bill.
SUMMARY : Makes numerous changes to the issuance and
registration of marriage licenses. Specifically, this bill :
1)Requires parties to be married to appear in person, together,
before the county clerk to obtain a marriage license. Allows
the clerk, if either or both parties to be married, whether
through a regular license or a confidential license, are
physically unable to appear in person before the county clerk
to obtain the license, to issue the marriage license to the
person solemnizing the marriage, provided that person presents
an affidavit setting forth sufficient reason why the party or
parties to be married could not attend in person. Sufficient
reason includes hospitalization, incarceration or any other
reason proved to the satisfaction of the county clerk.
2)Requires county clerks, who choose to authorize notary publics
to issue confidential marriage licenses, to establish a policy
outlining the requirements for filing applications and
maintaining registration. Violation of the clerk's policy
results in the suspension or revocation of the authorization
of the notary public to issue confidential marriage licenses.
Before the notary public can be approved to issue confidential
marriages, or have his or her application renewed, the notary
public must complete a course given by the county clerk. The
county clerk must exercise reasonable judgment in scheduling
the length of the training course. Applicants seeking
approval to issue confidential licenses must successfully
complete the training course and not have violated any other
requirements for issuance of confidential licenses. The fee
for the one-year license is $400.
3)Requires that a duplicate marriage license or confidential
marriage license, which may be issued if the original is lost,
damaged or destroyed after the marriage ceremony takes place,
must be returned to the county recorder within one year of the
issuance of the original marriage license. The clerk may
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charge, as a fee for issuing a duplicate license, the actual
costs of issuing the duplicate. Requires that if a marriage
license is lost, damaged or destroyed before the ceremony, the
applicants must purchase a new license.
4)Clarifies that the power of attorney required for marriages by
proxy when one party is stationed overseas and serving in a
conflict or war, must be the original document and not a copy.
5)Requires each applicant to a marriage license to present
authentic photo identification acceptable to the county clerk
as to name and date of birth. Allows a credible witness
affidavit to be used in lieu of authentic photo
identification. Replaces the term "certificate of registry"
with "marriage license."
6)Clarifies that a marriage license issued by a county clerk is
such until it is registered with the county recorder, at which
point it becomes a marriage certificate.
7)Requires that all original marriage certificates, except
confidential marriage certificates, be transmitted to the
State Registrar not less than quarterly. No longer requires
that confidential marriage certificates be transmitted to the
State Registrar. Confidential marriage certificates remain
with the county clerk.
8)Eliminates issuance, upon request, of a decorative heirloom
marriage certificate by the State Registrar.
EXISTING LAW :
1)Requires parties to obtain a marriage license from the county
clerk before entering a marriage. Each applicant may be
required to present authentic identification as to name.
(Family Code Section 350 et seq .)
2)Requires parties to be married to solemnize their marriage
before an authorized person. (Family Code Section 400 et
seq .)
3)Allows an unmarried man and woman who have been living
together as husband and wife to be married through a
confidential process. The marriage certificate shall remain
confidential and not open to public inspection except upon
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order of the court issued upon a showing of good cause.
Notary publics, approved by the court clerk, may authorize
confidential marriages provided they have taken a course of
instruction, paid the required $175 annual fee and complied
with other requirements. (Family Code Section 500 et seq .)
4)Requires the State Registrar, upon request, to supply any
marriage applicant with a decorative heirloom marriage
certificate. (Health & Safety Code Section 103595.)
FISCAL EFFECT : As currently in print, this bill is keyed
fiscal.
COMMENTS : This bill, sponsored by the California Association
of Clerks and Election Officials, seeks to make technical and
clarifying changes to the law regarding issuance of marriage
licenses and to establish procedures for issuing confidential
marriage licenses through notary publics. This bill would also
require both parties to a marriage license to appear, in person,
together before the county clerk, subject to exceptions.
According to the author:
AB 1102 clarifies outdated and unclear language of
statutes to reflect current procedures for issuance
and registration of marriage licenses. In addition,
it creates stricter regulations for the issuance of
confidential marriage licenses in order to minimize
fraud as well as increase the proficiency of notary
publics who are authorized to issue confidential
marriage licenses.
Echoing the bill's author, the California Association of Clerks
and Elections Officials, sponsor of the legislation, writes:
"Assembly Bill 1102 represents several years of work by the
County Clerk's Legislative Committee to correct and add
clarifying language to statutes to reflect current procedures
for issuance and registration of marriage licenses."
While the bill makes numerous changes to the law surrounding
marriage licenses, most of the changes are indeed technical in
nature and other changes conform the law to actual practices by
the county clerks, the courts and the State Registrar. There
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are a few exceptions that involve more extensive changes to the
law, discussed below.
Confidential Marriages . While not all clerks offices authorize
notary publics to issue confidential marriage licenses, those
that do have reported significant problems, resulting in delays,
overcharging and fraud. The problems include errors in
completing the marriage licenses, selling or transferring the
licenses to unauthorized persons, charging fees which exceed the
established fee for the license, issuing the confidential
licenses to couples who do not qualify (because they are not
living together) and performing the marriage outside of the
county.
For example, Los Angeles County writes of notary publics who
sell or transfer licenses to:
[u]nauthorized persons to be used for marriage
ceremonies by phone, which are not valid in this
State. This problem has been an on going battle with
the marriage chapels who insist on advertising this
service. Several 100 ceremonies have been performed
by these chapels and the public is being defrauded
because the marriage ceremonies were not performed
under the laws of the State.
. . .
Los Angeles notes that they have 388 notaries authorized to
issue confidential licenses "Although, most are doing what
they should be, the few that don't, there [their]
infractions consume a lot of staff time and also [are] a
disservice to the public."
According to the author, this bill seeks to correct those
problems by enabling county clerks to establish policies and
procedures for the acceptance of applications of notary publics
to issue confidential marriage licenses and by giving clerks the
authority to suspend or revoke applications of notary publics
not complying with the requirements. It would also allow for a
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more extensive training course of instruction for notaries, thus
helping ensure that notaries are properly trained. The bill
would also raise the annual application fee for these notaries
from $175 to $400.
Personal Appearance Before the County Clerk . Current law does
not require that both parties appear in person, together before
the county clerk to obtain their marriage license. For a
regular marriage license, the law requires that applicants fill
out the form "in the presence of the county clerk."
Confidential marriage licenses can be issued by the clerk to the
person solemnizing the marriage if one or both parties are
unable to appear in person, provided that person has an
affidavit, signed by the parties to be married, "explaining the
reasons for the inability to appear."
This bill requires the parties to be married, whether through a
regular marriage license or a confidential one, to appear
together in the clerk's office to obtain the marriage license.
The one exception would be if either or both parties were
physically unable to appear in person. In that case, the person
solemnizing the marriage could present an affidavit, signed and
notarized by the party or parties who could not be present,
explaining why they could not appear. Sufficient reason why
they could not appear includes hospitalization, incarceration or
any other reason proved to the satisfaction of the county clerk.
The clerks believe that this requirement should minimize
fraudulent marriages.
Confidential Marriage Certificates Remain with County Clerk .
Currently county clerks are required to transfer copies of all
original confidential marriage certificates to the State
Registrar of Vital Records. Apparently, the State Registrar
stores the copies in boxes with no index system so that, for all
practical purposes, the records are unavailable. This bill
would delete the requirement that copies be transferred to the
State Registrar. The original would remain with the county
clerk and be subject to inspection only with a court order.
REGISTERED SUPPORT / OPPOSITION :
Support
AB 1102
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California Association of Clerks and Elections Officials
(sponsor)
Family Law Section of the State Bar of California
Opposition
None on file.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334