A New Use for Confidential Marriage: Elder Abuse

• Publication year: 2008
• Author: By Ellen McKissock, Esq.

A NEW USE FOR CONFIDENTIAL MARRIAGE: ELDER ABUSE

By Ellen McKissock, Esq.^*

When the California State Legislature chose not to recognize common law marriages over a century ago, it made sense to allow a couple living together to legalize their relationship through the "confidential marriage." Today, however, the confidential marriage process allowed by Family Code section 500 seems more a fertile field for elder abuse or evading the law than a mechanism to shield families from the humiliation of a public marriage after years of cohabitation.

I. WHAT IS A CONFIDENTIAL MARRIAGE?

In 1850, the California Legislature enacted the first Act Regulating Marriages. By 1862, amendments to that statute required marrying couples to obtain a marriage license. The Legislature added statutes the following year allowing persons who had been living together as husband and wife to marry without a license. In 1872, California statutes were organized into four codes of general laws, among them the Civil Code, which contained section 55, the precursor to current Family Code section 300 that governs the typical public marriage.¹ Six years later, the Legislature added Civil Code section 79, which continued the statutes involving confidential marriage, and is the precursor to Family Code section 500 governing today's confidential marriages. Civil Code section 79 provided:

When unmarried persons, not minors, have been living together as man and wife, they may, without a license, be married by any clergyman. A certificate of such marriage must, by the clergyman, be made and delivered to the parties, and recorded upon the records of the church of which the clergyman is a representative. No other record need be made.

The purpose and public policy behind confidential marriages was to "shield the parties and their children, if any, from the publicity of a marriage recorded in the ordinary manner, and thereby to encourage unmarried persons living together as man and wife to legalize their relationship."² Confidential marriage was a mechanism by which those who had been married by common law could obtain recognition by the state of their marriage, without publicly revealing that their marriage had not been previously recognized.

II. CONFIDENTIAL MARRIAGE LICENSES ARE EASILY OBTAINED AND CONCEALED FROM FAMILY MEMBERS

As late as 1969, when Civil Code section 79 became Civil Code section 4213, a cohabitating couple still was not required to obtain a marriage license under the confidential marriage statute. The clergyman performing the ceremony, however, was required to file a marriage certificate with the county clerk.³ That marriage certificate was not open to public inspection without court order.

Under the current statute,⁴ a marriage license must be obtained from the county clerk, but its recordation is held confidential and only disclosed to third parties by court order.⁵ To obtain the confidential marriage license, the parties need only appear before a county clerk, have capacity, not be under the influence of drugs or alcohol, and fill out the license.⁶

A. A Confidential Marriage License Can be Obtained Without the Elder Ever Appearing Before a County Clerk

Nevertheless, even the statutory safeguard of having the parties appears before the clerk who might determine capacity can be relinquished under the confidential marriage statute. Under Family Code section 502, if for any reason one or both of the marrying parties is physically unable to appear in person before the county clerk, the person solemnizing the marriage can obtain the confidential marriage license by executing an affidavit on the couple's behalf explaining the reason the person(s) cannot appear. In one unreported case, a "clergyman for hire" obtained the confidential marriage license for a couple, one of whom was on her deathbed in a hospital.⁷ In another case, a clergyman accompanied the petitioner to city hall to obtain the confidential marriage license, returning to the hospital to perform the marriage the day before the decedent died.⁸ Fortunately, in both instances, the decedents were so ill that they could not sign the marriage license and the county clerk did not record the document. However, the "surviving spouses" both attempted to validate their marriages by petitioning under Health and Safety Code section 103450 for an order establishing the fact, time and place of the marriage. The estate expended litigation fees to invalidate the marriages.

B. Appearance Before a Clerk is No Guarantee that Advantage is Not Being Taken of an Elder

The level of capacity for entering into a marriage is so minimal that a lonely elder under the undue influence of another can easily enter into matrimony without question from a clerk. Generally speaking, a person has capacity to consent to marriage so long as he or she is able to understand the nature, duties, obligation and effect of marriage. Even appointment of a conservator does not affect the capacity of a conservatee to marry.⁹

Confidential marriage can make the victimization of an elder even more likely. Since a confidential marriage does not require public solemnization, family members may never know during the elder's lifetime that he or she married. The county clerk is not required to verify any statements on the confidential marriage license, which statements are quite often not even made under penalty of perjury. Parties to a confidential marriage can be

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married by any person authorized to solemnize marriages under Family Code section 400, which includes the county clerk who is "a commissioner of civil marriages."¹⁰ The county clerk, in turn, may appoint any deputy commissioner to solemnize marriages.¹¹ The marrying parties need only state in the presence of the deputy commissioner that they take each other as husband and wife and sign a marriage license that states in small print that they meet all of the requirements of a confidential marriage—specifically that they are an unmarried man and an unmarried woman, not minors, and that they have been living together as husband and wife.¹² The deputy commissioner is allowed, but not required, to ask questions about the information on the marriage license if he or she has reason to doubt its correctness.¹³ Otherwise, the deputy commissioner is required only to ensure there is a marriage license, and attach to it a statement indicating the date, place and fact of the marriage, the names and residences of the parties, and his own position and address.¹⁴

In a case currently pending before the San Mateo Superior Court,¹⁵ an estate-planning attorney in her fifties married her 86-year-old client the year before he died, using a confidential marriage license. The essentially housebound elder was lonely, as his only family lived abroad. Both the attorney and the decedent appeared before the county clerk to obtain the confidential marriage license, both signed it and were married by the deputy...