• petition to establish fact of marriage

Petition to Establish Fact of Marriage Granted After Judge Has Change of Heart

What do you do when you and your spouse “think” you have been married for over 30 years and then unexpectedly discover that your marriage certificate was never officially filed with the Court Clerk? Well, this is exactly what happened recently to clients of ours. Our clients, whom we will call Sam and Betty,  had celebrated the union of their marriage over 30 years ago in front of family and friends. Recently, going through old papers, much to their horror they found their original marriage certificate had not properly been filed with the Court Clerk. The filing of the marriage certificate is required to make a marriage official and legal. After doing some research, Sam discovered he could file a Petition to Establish Fact of Marriage to remedy this problem. This Petition, once granted would effectively correct their failure to file their marriage certificate within the statutory time required. Filing the Petition to Establish Fact of Marriage seemed relative easy with our help; however there was one little problem….they had never gotten a marriage license.

Marriage License is Prerequisite to Filing Petition to Establish Fact of Marriage

Marriages are recorded by the Office of Vital Statistics, and evidenced by an official certificate. Occasionally, the marriage certificate is not submitted within the time requirement, is destroyed or simply is unavailable. The purpose of filing a Petition to Establish Fact of Marriage is to allow a couple to legally validate their marriage even though the marriage certificate was not properly filed with the court clerk, is destroyed or is otherwise unavailable. Specifically, a couple can file a Petition to Establish Fact of Marriage under the following circumstances:
  • If their marriage was not registered in a timely manner, or
  • The couple was married outside the U.S. and they cannot get a certified marriage certificate, or
  • The couple was married in a religious ceremony but did not get a civil marriage license

The Petition is filed in the county where the couple lives or where the marriage took place.

Couple Had Married Without Marriage License

In our sample case, Sam and Betty had married when a marriage license was not required. They had been married in 1974 after having lived together for many years. At that time, if a couple had lived together for a period of time, it was not required for them to get a marriage license before getting married. The couple would simply wed and then file the marriage certificate with the Court Clerk. During the 1970’s thousands of couples were married without a license, and this was legal under the laws at that time.  Nowadays, couples are required to get a regular marriage license or a confidential marriage license before they officially get married.

Keep in mind, we have filed Petitions for other clients who had, in fact, gotten a marriage license, but the County lost the license and had no record of ever issuing a license. As it turns out apparently, you don’t need actual “proof” of having obtained a marriage license, but it does need to be part of the factual testimony to the court in these types of Petitions.

Getting back to our couple, Sam and Betty, because they had not gotten a marriage license from the county, we had concerns as to whether the court would even approve their Petition. For example, part of the required documentation specifically states on the form, “A marriage license is required for a valid marriage in California. The procedure described in Health and Safety Code sec. 103450, et seq., cannot establish the validity of a California marriage if no marriage license was obtained.” Unfortunately, Sam and Betty had no marriage license because it was not required at the time they got married.

Filing the Petition to Establish Fact of Marriage

After discussing this at length, the clients decided to go ahead with filing their Petition to Establish Fact of Marriage, being aware that the forms themselves inferred their situation would not allow them to take advantage of this process. After all, this was the only option they had to confirm their marriage 30 years earlier. They were desperate and hopeful.

Our office assisted preparing the necessary documents and supporting declaration and the matter was set for hearing. The couple anxiously awaited several weeks before their scheduled hearing date. Then they appeared before the Judge.

Judge Denies Petition Due to No Marriage License

Of course, as with any filed Petition, it is the Judge’s duty to substantiate the allegations in the Petition before approving the remedy being requested. The Judge asked the couple if they had obtained a marriage license. Being an honest person, the wife sadly said no, they had not. The Judge told the couple that they needed to have obtained a marriage license before they got married to validate their marriage of 30 years earlier, denied their Petition and sent them home.

Wife Betty now is completely distraught and husband Sam is in the doghouse. (I believe the husband was the one who forgot to file the marriage certificate in the first place.) Sam calls our office and shares the bad news and we brainstorm other options and possible solutions. Sam doesn’t understand how his marriage to Betty can be illegal simply because they had not obtained the “now required” marriage license, when that had not been the requirement when they got married. We explain to Sam that we aren’t lawyers and cannot give him legal advice, but we toss around some ideas.

Sam’s frustration at the legal system and his wife’s constant crying, spurred him to call the Judge’s secretary directly. Sam explained to the Judge’s secretary that they should not be penalized for not complying with a requirement that was not necessary back in the 1970’s. The secretary listened to Sam’s story and assured him that she would speak to the Judge about his concerns….and she did.

Judge has Change of Heart and Reverses His Decision

Surprisingly, the next day, Sam receives a phone call from the Judge’s secretary. Apparently the Judge had a “change of heart” and was now willing to approve their Petition to Establish Fact of Marriage, even though the couple had not obtained the prerequisite marriage license before they were wed. The Judge put their Petition back on the court’s calendar and Sam and Betty were instructed to come back to the courthouse the next day where the Judge promptly signed the Order.  Sam and Betty’s marriage 30 years earlier was now officially legal.

These are the special stories that make what we do so exciting and enjoyable. Our legal system is complex and often does not seem fair. Sometimes one just has to be persistent and fairness will come as an unexpected gift. Legal access can also be expensive. This particular legal process is one that many attorneys and legal document services are probably not familiar with.  A People’s Choice has been providing reasonably priced non-attorney legal document preparation services for over 35 years. Our extensive experience enables us to handle many unique and different types of legal proceedings. If you need help filing a Petition to Establish Fact of Marriage, we hope you will contact our office through our website or by calling 800-747-2780.

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By |2018-01-18T15:46:44+00:00July 10th, 2016|Family Law|0 Comments

About the Author:

Sandra M. McCarthy, founder of A People’s Choice Inc., has worked exclusively in the legal field since 1976. She served as the 2004-2005 President of CALDA (California Association of Legal Document Assistants). She obtained a Paralegal Certificate from the University of California, Santa Barbara. During her career in the legal field, she has worked as a freelance paralegal, law office manager and paralegal studies teacher, and has co-authored numerous legal publications and written hundreds of self-help legal articles. As a registered Legal Document Assistant, Sandy is dedicated to providing affordable, low-cost, self-help document preparation services for California consumers in all 58 counties.

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