BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 1102 A
Assembly Member Hancock B
As Amended June 8, 2005
Hearing Date: June 20, 2006 1
Family Code 1
BCP:rm 0
2
SUBJECT
Marriage Licenses
DESCRIPTION
This bill would revise and recast provisions relating to
the issuance of marriage licenses. This bill would make
substantive changes to existing law including:
allowing the county clerk to establish policies for the
application and maintenance of a notary public's approval
to issue confidential marriage licenses, including the
requisite training course; and
removing traditional qualifications for
confidential marriages.
BACKGROUND
The Family Code, in addition to the Health and Safety Code,
details the procedures and requirements for the issuance
and registration of marriage licenses. Those procedures
allow a county clerk to issue a confidential marriage
license upon the request of a notary public approved by
that clerk. The notary public, approved to authorize
confidential marriages, is responsible for verifying the
ability for the applicants to enter into a confidential
marriage. Numerous counties have reported problems with
the current system, such as incorrect license information,
the selling or transferring of licenses and the issuance of
confidential marriage licenses to unqualified applicants.
In response to county concerns, including those listed
(more)
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Page 2
above, the California Association of Clerks and Election
Officials, proposes this bill in an attempt to clarify and
correct statutes regarding the issuance and registration of
marriage licenses. Most of the proposed changes are
technical and clarifying, however this bill also includes
substantive changes that are intended to reduce the
instances of fraud in the issuance of marriage licenses,
but with potential unpopular consequences.
CHANGES TO EXISTING LAW
1. Existing law prevents disclosure of information
concerning a confidential marriage to the public, aside
from verifying the existence of a marriage, absent a
court order issued upon a showing of good cause. [Fam.
Code 511.]
Existing law allows parties to enter into a confidential
marriage, provided they: (1) are not minors; and (2) have
been living together as husband and wife. Those parties
must personally appear before the county clerk, unless
they submit an affidavit explaining their inability to
appear. [Fam. Code 500 et seq.]
This bill would delete the requirement for parties to
live together as husband and wife prior to applying for a
confidential marriage license. This bill would require
additionally parties to personally appear, subject to the
above mentioned marriage license exceptions.
2. Existing law allows county clerks to approve notaries
public to authorize confidential marriages, in one year
increments. Notaries public must submit applications to
the county clerk in the county in which they reside, and
the clerk must exercise reasonable discretion in approval
of applications. No authorization may be given absent a
notary public's submission of evidence of completion of a
course on confidential marriage. That course must not
exceed two hours in duration. [Fam. Code 530 et seq.]
This bill would specifically give county clerks
discretion in whether or not to accept notary public
applications. County clerks must establish a policy
outlining the requirements for filing an application;
violation of that policy would result in suspension or
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Page 3
revocation of the notary public's authorization.
This bill would allow the county clerk to reasonably
determine the length of training that a notary public
must receive prior to authorization. This bill would also
require a county clerk to notify the Secretary of State
if the notary public engages in certain actions.
This bill would allow a notary public to renew their
authorization for a one-year period provided that the
individual has not violated the application provisions,
completed the requisite course and paid the renewal fee.
This bill would increase the fee for notary public
applications or renewals to $300.
3. Existing law allows a marriage to be solemnized by a
priest, minister or rabbi of any religious denomination,
in addition to certain other individuals. Parties and
witnesses must be in the presence of the individual
solemnizing the marriage. Certain members of the Armed
Forces stationed overseas may enter into marriage by the
appearance of an attorney commissioned for that purpose,
upon the presentation of the original power of attorney.
[Fam. Code 400, 420.]
This bill would additionally allow an authorized person
of any religious denomination to solemnize a marriage and
specify that a party must be in the physical presence of
the person solemnizing the marriage.
This bill would further clarify that the original, not a
copy or facsimile of the power of attorney is required.
4. Existing law requires parties to receive a marriage
license prior to entering into a marriage. [Fam. Code
350.]
Existing law requires the marriage license to show the
identity of the parties to the marriage, the parties'
real and full names, places of residence, and the
parties' ages. The county clerk may request authentic
identification, in addition to personal examination, of
the applicants. [Fam. Code 351, 354.]
This bill would require applicants to present photo
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identification as evidence of name and date of birth;
credible affidavits may be used in lieu of that
identification. This bill would allow parties' to use
their mailing addresses in lieu of their residential
address on the marriage license.
This bill would require parties requesting a marriage
license to be physically present before the county clerk,
absent sufficient reason for their absence. Parties not
appearing must:
have the person solemnizing the marriage physically
present an affidavit to the county clerk explaining
the inability to appear; and
sign the affidavit under penalty of perjury,
authenticated by a notary public or court prior to
issuance of the marriage license.
5. Existing law requires applicants for a marriage
license to additionally obtain a certificate of registry
of marriage from the county clerk, which must be
completed by the applicants in the presence of the clerk.
The person solemnizing the marriage shall complete the
certificate along with one witness to the marriage
ceremony. The witness must place their signature and
address on the certificate. The certificate is then
returned to the county recorder. [Fam. Code 359(d).]
Existing law provides that applicants may receive a
duplicate certificate of registry upon request. That
duplicate may not be issued more than one year after
issuance of the original license, and must be returned by
the individual solemnizing the ceremony within 10 days of
issuance. [Fam. Code 360.]
This bill would remove all references to a certificate of
registry and instead require the person solemnizing the
marriage, in addition to one or two witnesses, to
complete the marriage license and return that license to
the county recorder within 10 days of the ceremony. This
bill would provide that once a marriage license is
registered with the county recorder, it becomes a
marriage certificate.
This bill would allow a duplicate marriage license to be
issued within one year after issuance, which must be
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Page 5
returned within one year of the issuance date of the
original license. The county clerk may charge a fee to
cover actual costs of issuing that duplicate license.
Applicants would be required to purchase a new marriage
license if that license is lost, destroyed or damaged
before the ceremony.
6. Existing law requires the local registrar of marriages
to transmit monthly all original certificates of
registry. [Health & Safety Code 102355.]
This bill would instead require transmission of original
marriage certificates not less than quarterly, by the
local registrar of marriages.
7. Existing law requires the county clerk to send copies
of judgments of dissolution of marriage, legal separation
or nullity to the State Registrar. [Health & Safety Code
103200.]
This bill would clarify that the clerk of the court is
required to send those judgments.
8. Existing law allows parties to request a decorative
heirloom marriage certificate. [Fam. Code 424; Healthy
& Safety Code 103595.]
This bill would repeal that provision.
COMMENT
1. Stated need for the bill
The California Association of Clerks and Election
Officials, sponsor, asserts that this bill "represents
several years of work by the County Clerk's Legislative
Committee to develop clarifying and added statutory
language to reflect current procedures for issuance and
registration of marriage licenses."
The sponsor also addresses the substantive changes
proposed by the bill, specifically the increased ability
of the county clerks to address the problem of notaries
who do not follow established regulations when issuing
confidential marriage licenses:
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Notaries public noncompliance with current marriage
license regulations has been a persistent problem
resulting in delays, overcharging, and fraud. The
county clerk currently does not have the ability to
suspend or revoke a notary's authority to issue
confidential marriage licenses in the event that the
notary has not complied with set regulations. This
bill enables county clerks to continue authorizing
notaries to issue confidential marriage licenses and
provides county clerks the latitude to suspend or
revoke such authorization.
The training course for renewal or approval to issue
confidential marriage licenses is currently not to
exceed two hours in duration. This bill allows a more
extensive training course of instruction concerning
the issuance of confidential marriage licenses by
eliminating the limitation.
Accordingly, the sponsor contends "that the changes in AB
1102 will significantly reduce the fraud and problems . .
. experienced with the issuance of confidential marriage
licenses by notar[ies] public[]."
2. County clerks would be required to suspend or revoke a
notary's approval to issue confidential marriage licenses
if the notary violated the county clerk's policy
Current law requires county clerks to revoke a notary's
approval to issue confidential marriage licenses if the
notary fails to fully and faithfully discharge their
duties as a notary. Additionally, the Secretary of State
may revoke or suspend the commission of a notary who
breaches those duties. [Fam. Code 535(a); Gov. Code
8214.1(d).] Furthermore, if the notary violates any
provision of the Family Code statutes governing the
issuance of confidential marriage licenses, the county
clerk must conduct a hearing to determine if the notary's
approval should be revoked or suspended. [Fam. Code
535(b).]
a. Blanket delegation of power to clerks to establish
a policy outlining the requirements for notary public
applications
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Current law grants county clerks discretion when
approving a notary's application to issue confidential
marriage licenses, but does not specifically allow a
county clerk to institute policies or regulations
concerning those applications. AB 1102 would require
a county clerk who chooses to accept notaries public
applications to establish a policy outlining the
requirements for the filing of applications, and for
maintaining their registration. Any violation of that
policy would result in the suspension or revocation of
the notary's authorization to issue confidential
marriage licenses.
Traditionally, the Legislature has exercised its
authority over the regulation of notaries public.
Individuals wishing to become a notary public must
complete a written examination, be a legal resident,
and comply with other requirements. [Gov. Code
8201.] The most recent addition to these
requirements, by AB 1210 (Nakano, Chapter 513,
Statutes of 2003), established supplemental
educational requirements for all notaries public
seeking appointment. [Gov. Code 8201.2.] Thus, the
Legislature has firmly established its authority to
regulate notaries public both in their registration,
but also in terms of their proper education.
Contrary to the current regulatory scheme, AB 1102
would delegate a portion of that power to the local
county clerk. That authorization to create a policy,
which notaries public must comply with, has the effect
of regulating notaries public. Moreover, allowing
each county clerk to create their own policy could
result in 58 different policies for the 58 different
counties. Accordingly, the sponsor should remove this
provision from the bill both due to the potential
chaos caused by 58 different policies, and because it
delegates legislative authority for regulating
notaries public.
SHOULD NOT THE BILL BE AMENDED TO REMOVE PROVISIONS
ALLOWING EACH CLERK TO FORMULATE THEIR OWN POLICIES
FOR THE FILING AND MAINTAINCE OF NOTARY PUBLIC
APPLICATIONS?
AB 1102 (Hancock)
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b. Lack of clarity concerning a hearing prior to the
revoking a notary public's authorization for violation
of the clerk's policy
Unlike existing provisions concerning allegations of a
notary's violation of the Family Code, AB 1102 does
not state whether a clerk must hold a hearing on the
notary's alleged violation of the policy. Considering
the potential procedural due process implications of
suspending or revoking a notary's authorization absent
a hearing, the sponsor should amend the bill to
clarify that the clerk must conduct a hearing on the
alleged violation.
SHOULD NOT THIS BILL BE AMENDED TO CLARIFY THAT A
NOTARY IS ENTITLED TO A HEARING BEFORE HIS OR HER
APPROVAL IS REVOKED OR SUSPENDED DUE TO A VIOLATION OF
THE COUNTY CLERK'S POLICY?
3. Expansion of the availability of confidential
marriages contrary to the historical reasons behind
allowing those marriages
Currently, confidential marriages are limited to
individuals who "have been living together as husband and
wife." [Fam. Code 500.] This bill would delete that
requirement, thus constituting a significant change in
the availability of confidential marriage.
Historically, confidential marriage emerged from statutes
that dispensed with the requirement of a marriage license
for individuals who were living together as husband and
wife. Like the present statute, previous versions were
intended "to encourage unmarried persons who have been
living together as man and wife to legalize their
relationship." [Encinas v. Lowthian Freight Lines, Inc.
(1945) 69 Cal. App. 2d 156, 163.] By eliminating the
requirement of cohabitation, AB 1102 would completely
remove the historical rationale for confidential
marriages. These marriages are not considered public
records, and encouraging the use of confidential
marriages would diminish the pool of information
contained in public records. Accordingly, if every
couple entered into a confidential marriage, marriage
records would in effect be removed from the public
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Page 9
record.
For those couples concerned about the privacy of
information contained in their public marriage records,
both this bill and SB 1364 (Battin) would allow use of
alternate addresses to protect the privacy of their
residence. (See Comment 7). Thus, the proposed change
is unnecessary to protect the privacy of applicants, and
would go against the original rationale for allowing
confidential marriages.
4. Provisions to increase the amount of training and fees
for notary public
County clerks report that their biggest problem with
notaries public is the presence of errors on issued
confidential marriage licenses. They point out that
while it takes them months to train a new employee how to
correctly issue a marriage license, notaries are provided
two hours of training. They further argue that two hours
of training is inadequate and results in mistakes which,
in turn, results in delays in issuing marriage
certificates to the married parties.
This bill would allow county clerks to reasonably
determine the length of training that a notary public
must receive prior to authorization. While more training
for notaries public appears to be appropriate, confusion
may arise if each of the 58 counties creates a different
training standard. A notary public wishing to perform
confidential marriages in multiple counties would be
subject to various training requirements. Admittedly,
this situation could already exist under current law,
which requires the county clerk to conduct the initial
two hours of training.
As mentioned above, the Legislature recently required
certain supplemental education for these notaries public.
Allowing county clerks to arbitrarily decide what
education is appropriate would appear to be an improper
delegation of power to those clerks. Consistent with the
above suggestion in Comment 2(a); the sponsors should
consider amending the bill to specify the amount of
instruction appropriate, instead of delegating authority
over notaries public.
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SHOULD NOT THE LEGISLATURE RECOMMEND A UNIFORM LEVEL OF
TRAINING?
In addition to the above changes to the notary public
approval process, AB 1102 would also increase the
application and renewal fee for approval to issue
confidential marriage licenses from $175 to $300. This
increased fee would help offset the costs of the any
expanded training program.
5. Clarifying power of attorney requirements for
marriages when one party is stationed overseas
Currently, members of the Armed Forces, deployed overseas
in a conflict or war, may enter into marriage through the
appearance of an attorney-in-fact, commissioned and
empowered by a duly signed original power of attorney.
Although existing law already requires the
attorney-in-fact to present the original power of
attorney, AB 1102 would augment that provision by adding
that "[c]opies in any form, including by facsimile, are
not acceptable." This would constitute a clarifying,
non-substantive change to current law.
Under the Evidence Code, an original is defined as "the
writing itself or any counterpart intended to have the
same effect by a person executing or issuing it." [Evid.
Code 255.] In comparison, a duplicate is created from
a "technique which accurately reproduces the original."
[Evid. Code 260.] Thus, copies are duplicates, not
originals, according to the Evidence Code. Accordingly,
the proposed language simply clarifies the existing
requirements for deployed individuals seeking to appear
through an attorney.
That original section was enacted as urgency legislation
by SB 7 (Brulte, Chapter 476, Statutes of 2004). The
purpose behind that bill was to provide immediate relief
to engaged individuals deployed overseas with little or
no notice. Although the bill's provisions, augmented by
AB 1102, required the original power of attorney to be
submitted, transferring an original document from an
overseas battle zone could take some time. Considering
the dangerous conditions present in modern warfare,
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parties may want to avoid the potentially unnecessary
delay caused by the physical shipping of the original
document to the United States. Instead of augmenting the
requirement for the original document, the sponsor may
instead consider allowing the use of a facsimile copy of
the document, provided that it is properly authenticated.
6. Requiring both parties to appear in person and present
photo identification to receive a marriage license would
reduce potential for fraud
Currently, parties must apply for both a marriage license
and certificate of registry of marriage. [Fam. Code
350, 359.] The parties may be required to present
"authentic identification as to name" and must fill out a
certificate of registry in the presence of the county
clerk. [Fam. Code 354, 359.] AB 1102 would
consolidate the certificate of registry into the marriage
license, and require parties to appear together for the
issuance of that license, which would become a marriage
certificate upon registry with the county recorder.
The proposed physical presence requirement may be waived
for sufficient reason, such as "proof of hospitalization,
incarceration, or any other reason proved to the
satisfaction of the county clerk." In those case, the
person solemnizing the marriage must physically present
an affidavit to the court clerk that explains either or
both of the parties' inability to appear. Additionally,
the signature on that affidavit must be authenticated by
a notary public or court. These provisions would
additionally apply to confidential marriage licenses,
parties proceeding through a notary public would be
subject to these same requirements.
All of these changes are intended to reduce the potential
for fraud in the issuance of marriage licenses.
7. Amendments to conform to SB 1364
As amended in this committee, SB 1364 would allow
applicants for a marriage license or certificate of
registry to substitute a business address or United State
Post Office Box in lieu of their residential address. SB
1364's proposed language would have allowed use of any
mailing address, as does this bill. That language was
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modified due to concerns about the large range of
addresses that could be used as a mailing address.
Allowing applicants to substitute a business address or
post office box provides them with the additional
security that their residential address will not become
public record.
Accordingly, AB 1102 should be amended to limit mailing
address to a residential address, business address, or
United States Post Office Box to conform to the
committee's previous action.
SHOULD NOT THIS BILL REQUIRE ETIHER A RESIDENTIAL
ADDRESS, EMPLOYMENT ADDRESS OR U.S. P.O. BOX, IN
CONFORMANCE WITH SB 1364?
8. Other changes are technical and clarifying
The other changes proposed by this bill include various
technical and clarifying amendments related to clerical
procedures for issuing marriage licenses. The proposed
changes would include removing the ability to request a
decorative heirloom marriage certificate, requiring the
local registrar of marriages to transmit marriage
certificates quarterly instead of monthly, and allowing
up to two witnesses for a marriage ceremony.
9. Need for counsel to update the version of the bill
This bill is a two-year bill affecting many Family and
Health and Safety Code sections. Several of the sections
affected were amended effective January 1, 2006.
Accordingly, Legislative Counsel must prepare an amended
version of this bill to reflect those changes.
Support: Family Law Section of the State Bar
Opposition: None Known
HISTORY
Source: California Association of Clerks and Election
Officials
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Page 13
Related Pending Legislation: SB 1364 (Battin), would
allow an applicant or witnesses to a
marriage license or certificate of
registry to use their mailing address
instead of a residential address for
verification. (This bill is
currently in the Assembly Judiciary
Committee.)
Prior Legislation: AB 361 (Runner, Chapter 295, Statutes
of 2005), makes it a misdemeanor for a notary
public to willfully fail to discharge his or
her required duties.
SB 7 (Brulte, Chapter 476, Statutes of 2004),
allows members of the Armed Forces stationed
overseas to enter into marriage through a
power of attorney.
AB 1210 (Nakano, Chapter 513, Statutes of
2003), established supplemental educational
requirements for all notaries public seeking
appointment.
AB 1323 (Negrete McLeod, Chapter 39, Statutes
of 2001), gave county clerks reasonable
discretion as to whether to accept
applications from notaries to authorize
confidential marriages and modified various
clerical requirements associated with
marriage licenses.
Prior Vote: Asm. Floor (42 Ayes, 32 Noes)
Asm. Appr. (13 Ayes, 5 Noes)
Asm. Jud. (6 Ayes, 2 Noes)
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