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  • Adam Eberts

Where there's a will, there's a way

So, this case was outside our wheelhouse—an unusual probate/family law hybrid. Our client married the love of her life in a hospital ceremony two days before he passed away. Unfortunately, because of the circumstances one may expect surrounding a hospital ceremony, there was no marriage license issued. Our client came to us after consulting with other attorneys who said that, absent a marriage license, it was impossible to get the marriage recognized.


In fairness to those other attorneys, the mandatory Judicial Council paperwork for establishing the time, place, and fact of marriage actually says as much on its face: “A marriage license is required for a valid marriage in California. [This] procedure … cannot establish the validity of a California marriage if no marriage license was obtained.” But, we at Eberts Law Group believe that it is our job to find and argue the law, not to just fill out Judicial Council forms. So, argue we did. Our argument went like this:


- Generally, applicants to be married do have to appear together in person before the county clerk to obtain a marriage license. (Family Code § 359.)

- There is an exception for individuals who are physically unable to appear in person before the county clerk: the applicants and the person solemnizing the marriage swear out an affidavit empowering the person solemnizing the marriage to pick up the marriage license. (Family Code §§ 359(a), 426.)

- In this case, the applicants and the person solemnizing the marriage swore out the required affidavit. But, once that affidavit is sworn, only the person solemnizing the marriage can use it to obtain the license, and that person was unable to get to the County Clerk’s Office prior to the husband’s death.

- So, the marriage failed to comply with the procedural requirements of Family Code § 306.

- But, the last sentence of § 306 further provides, “Noncompliance with this part by a nonparty to the marriage does not invalidate the marriage.” This was the one sentence on which we hung our whole argument—the noncompliance was by the person solemnizing the marriage, and not by a party to the marriage. So, the noncompliance should not invalidate the marriage.

The Court agreed, and our client is now a Mrs., bearing the last name of the love of her life.

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