Smooth Sailing. . . . Third Annual Vitals/County Clerk Staff Workshop 2009
DISCLAIMER / WARNING This is a training workshop, but local practices do vary from county to county according to local policy and practice as well as local County Counsel opinions. No practice or procedure you become aware of as a result of this workshop should be implemented in your own office without the full AWARENESS and APPROVAL of the County Clerk or Recorder for whom you work.
County Clerk • Issues marriage licenses • Local registrar of confidential marriages [FC 401] • Maintains permanent index
Marriage Officiant • Performs ceremony (solemnizes the marriage) • Completes marriage license • Returns public license to County Recorder’s office for registration • Returns confidential license to County Clerk’s office for registration
County Recorder • Local registrar of public marriages [HS 102285 & 102295] • Required to verify an acceptable certificate is filed for each marriage • Transmit to the state office not less than quarterly [HS 102355]
There are four types of marriage licenses issued by the County Clerk in California: • License & Certificate of Marriage (Public - VS 117) • Confidential License & Certificate of Marriage (VS 123) • License & Certificate of Declaration of Marriage (VS 116) • License and Certificate of Marriage for Denominations Not Having Clergy (VS 115) A petition to establish the fact of marriage, order establishing those facts and issuance of a court ordered delayed certificate of marriage are done through Superior Court (VS 122)
Power of Attorney for members of the United States Armed Forces stationed overseas and serving in a conflict or a war: • This form may be used by members of the United States Armed Forces stationed overseas and serving in a conflict or a war, who are unable to physically appear in person to obtain the marriage license and/or have their marriage solemnized. • The power of attorney must be signed by the party stationed overseas and acknowledged by a notary or witnessed by two officers of the United States Armed Forces. • The power of attorney shall state the true legal names of the parties to be married, and that the power of attorney is solely for the purpose of authorizing the attorney-in-fact to obtain a marriage license on the person’s behalf and participate in the solemnization of the marriage. The original power of attorney shall be part of the marriage certificate upon registration and is issued with certified copies as a second page similar to an amendment.
Affidavit of Inability to Appear Form: • This may be used if for sufficient reason one or both parties cannot physically appear together to apply for the marriage license [FC 426, 502]. • Specifies sufficient reason includes: • Proof of hospitalization • Incarceration • Other reason proved to the satisfaction of the County Clerk
Affidavit of Inability to Appear Form (cont’d): • Can be used for either a public or confidential marriage license (FC 426, 502) • Requires the signature of the party who is unable to physically appear be authenticated by a court or notary public • Requires the affidavit be executed and signed under penalty of perjury by all parties (first person, second person, and person solemnizing the marriage) • Requires the person solemnizing the marriage physically present the completed affidavit to the County Clerk explaining the reason for the inability to appear • If only one party is physically unable to appear, the other party must physically appear in the County Clerk’s Office at the same time as the person solemnizing the marriage to have the marriage license issued • NOTE: GC 8224(a) prohibits the notary public who has authenticated the signature(s) of the person(s) who is/are unable to physically appear in person at the County Clerk’s Office from also being the person solemnizing this marriage.
Parties need to be physically present in your office at the same time in order to purchase a marriage license • Unless they are applying for a marriage license using an Affidavit of Inability to Appear Form • Both need to be 18 years of age or older, and have authentic photo identification acceptable to the County Clerk • Persons under the age of 18 must have parental consent and apply to Superior Court for an order authorizing the issuance of a marriage license. A certified copy of the order must be presented to the County Clerk when the marriage license is issued.
A credible witness affidavit may be used in lieu of authentic photo identification. The credible witness must be at least 18 years of age, be of sound mind, and know the person whom they are identifying. It is up to the County Clerk whether or not they will accept a credible witness affidavit. • Parties must be getting married in California, within 90 days of the date the marriage license is issued. • If a confidential marriage license is issued, the parties must be getting married in the county where the marriage license is issued. • Parties who are applying for a License and Certificate of Declaration of Marriage are declaring the facts of their marriage that occurred more than one year ago.
Question: • A 16 year old emancipated minor comes into your office and wants to apply for a marriage license. She states she doesn’t need parental consent since she was emancipated through Superior Court. Can you issue the marriage license?
Complete and issue the marriage license using the information provided by the parties in their application as follows: NAMES OF BOTH PARTIES (Fields 1A-1D & 12A-12D) • Must be full legal name as shown on their birth certificate, adoption decree, court ordered name change or naturalization certificate • An assumed last name may be entered in fields 1C or 12C as applicable – however their legal last name must be entered in fields 1D or 12D as applicable
Question: • A couple comes into your office to purchase a marriage license. One of the parties names on their birth certificate is listed as “Baby Girl” in the first and middle name fields. Her driver’s license and social security card correctly reflect the first and middle names she’s used all her life. How should her name be listed on the marriage license?
DATE OF BIRTH (Fields 2 & 13) • Enter the parties dates of birth STATE/COUNTRY OF BIRTH (Fields 3 & 14) • Enter thebirthplace using the standard two letter abbreviation
Question: • A couple comes into your office to purchase a marriage license. You notice the year of birth on the driver’s license for one of the applicants is different than what’s shown on their marriage application. The customer tells you the DMV made a mistake and they have never gone back to correct it. What date should you put on the marriage license?
PREVIOUS MARRIAGES/SRDP (Fields 4 & 15) • Enter the number of previous marriage and/or Terminated State Registered Domestic Partnerships (SRDP) • Note: Marriages that were terminated by an annulment must be listed as a previous marriage LAST MARRIAGE ENDED BY (Fields 5A &16A) • Enter how the LAST marriage ended DATE ENDED (Fields 5B & 16B) • Enter the month/day/century and year the LAST marriage ended. If no previous marriages enter two dashes (--)
Question: • A couple comes into your office to purchase a marriage license. One of the parties had a previous marriage that ended by divorce. The final date of the divorce will be before the marriage ceremony, but is after the date they are in your office applying for the marriage license. Can you issue the license since the divorce will be final before they have their ceremony?
ADDRESS (Fields 6-9 & 17-20) • Enter the full street address including city, state and zip where the applicants usually reside • If the place where the applicant resides has no number or street address, enter a physical description of a location, e.g., “four miles south of Sutter Creek” • If they prefer, applicants may use a business address, a U.S. P.O. Box, or temporary residence address being used during a visit or while on vacation.
Question: • If one or both of the applicant’s are homeless and living in their car, or under a bridge, how would you list their address on the marriage license?
FULL BIRTH NAME OF PARENTS (Fields 10A, 11A, 21A & 22A) • Enter the full birth name of the applicant’s father/parent and mother/parent • A dash or “unknown” is acceptable for a father/parent’s full name if there is no father/parent listed on the applicant’s birth certificate • /parent was added to all vital record forms based on GC 14771(14) which states all forms have to be gender neutral • Entries for parents’ names are to reflect parents by birth or adoption. Only if the step-parent legally adopted the individual is the step-parent’s name to be entered • A middle initial may be entered when there is not sufficient space to fit the full first, middle and last name of the parent
Questions: • If the parents are a same gender couple, how do you enter their names on the marriage license? • One of the applicant’s has “Jr” after their last name on the marriage license. In the field for their father’s name, they’ve listed “Sr”. Is this acceptable?
STATE/COUNTRY OF BIRTH FOR BOTH PARENTS (Fields 10B, 11B, 21B & 22B) • Enter the birthplace of each parent using the standard two letter abbreviation • “Unknown” is an acceptable entry if the parent’s birthplace is not known
NEW MIDDLE AND LAST NAME (Fields 30A thru 31C) A person may adopt any of the following middle or last names: • The current last name of the other spouse • The last name of either spouse given at birth • A name combining into a single last name all or a segment of the current last name or the last name of either spouse given at birth • A hyphenated combination of last names A segment is a contiguous portion of the name; it is an identifiable match of a portion of the current last name or the last name given at birth of either spouse (Fields 1C, 1D, 12C, 12D). The segment may not omit or add new letters and the letters may not be changed around to create an entirely different segment that does not match a portion of the current last name or the last name given at birth of either spouse. For purposes of completing the marriage license, the following last names may be used to establish new middle or last names for either party: • First Person Current Last Name (Field 1C) • First Person Last Name at Birth (Field 1D) • Second Person Current Last Name (Field 12C) • Second Person Last Name at Birth (Field 12D)
NEW MIDDLE AND LAST NAME (cont’d)(Fields 30A thru 31C) NOTE: The law does not allow someone to drop their existing middle name by using the marriage certificate. They must keep their existing middle name or change it. In other words, if there is any middle name in 1B or 12 B, there MUST BE an entry in 30B or 31B, either the existing middle name or a new middle name. • When a party adopts a new middle name – the middle name shown in field 1B or 12B as applicable cannot be part of the new middle name. The new middle name is placed in either 30B or 31 B. • It is possible for the new middle name to be one letter if it’s derived from a segment of a last name shown in fields 1C, 1D, 12C or 12D that only contains two letters. • When a party to a marriage adopts a new middle and/or last name, all name fields in the area entitled “New Names” for that party must be completed. • The new middle name field should not contain dashes (--) if a party has elected to change their name unless that party does not have a current middle name shown in field 1B or 12B, and they are not adopting a new middle name. • If a party is adopting a new middle or last name, the new middle or last name may only be taken from, or be a segment or hyphenation of, the last names shown in fields 1C, 1D, 12C or 12D. • When a party does not elect to change their name, each of the new name fields for that party must be completed with two dashes (--). • Hyphenated middle and/or last names may or may not include an actual hyphen (-) between the names. This should be decided by the party wishing to hyphenate their name. • Contact your Policy Analyst at OVR with any questions.
AFFIDAVIT • Both parties must declare under penalty of perjury that the facts of the marriage license are true and correct, they are unmarried, there is no legal objection to the marriage, and they acknowledge receipt of the brochure as listed in Family Code Section 358 • Some counties require the applicants to raise their right hand and read the affidavit out loud – or they read the affidavit to the couple. There is no legal requirement that the couple raise their right hand and read the oath out loud…however, the clerk issuing the marriage license must in some way affirm the parties are declaring the information under penalty of perjury
SIGNATURE OF APPLICANTS (Fields 23 & 24) • Applicants sign the marriage license in permanent ink using their normal or usual signature. • Their signature may not necessarily agree with the legal name entered in the name fields
Signatures that are made with a mark (X): Any signature made with a mark (X) must be identified with the statement. “First Person Mark,” or “Second Person Mark,” and followed by the written signature of one person who witnessed the signing. The official issuing the license may sign as the witness. The typed name of the witness must be included. Example: Field 23 or 24 Signature of First or Second Person as applicable “X” “First (or Second) Person’s Mark” Witness: Jane DoeSignature Attorney-in-fact signatures for licenses issued using a Power of Attorney for parties stationed overseas serving in a conflict or a war: The attorney-in fact (AIF) must sign on behalf of the party who is stationed overseas Example: Field 23 or 24 Signature of First or Second Person as applicable John Alan Smith, by: Joseph Brown, AIF
Issuing the marriage license • License to marry section • Point out expiration date in field 25B when issuing the marriage license • Explain at least one witness is required for public license and no more than two can sign on the license • Give original license and officiant instructions and advise couple to give packet to the person performing their ceremony
General Information • Policy originated around 1877 • Called “church marriages” because historically the record was filed with the church • State had no role in the system until 1970 when a series of legislative changes were directed at aligning the requirements of confidential marriages with those of public marriages • Law changed in 1985 requiring the confidential license may only be used in the county in which it was issued. Prior to that time, the code was silent on where the confidential license could be used so older records may show a confidential marriage performed in a county other than the county where the license was issued. (Ch 149 Statutes of 1984 (amended Civil Code Section 4312(b))
General Information (cont’d) • County Clerk or local official prepares “License and Certificate of Confidential Marriage” [VS 123] • Not available to members of religious denominations not having clergy
Confidential Marriage License Rules • Only used when applicants have been living together as spouses • Both public and confidential marriage licenses may be amended [HS 103225-103255] • Confidential ceremony requires three people: unmarried male, unmarried female, and person solemnizing marriage (no witness required)
Confidential Marriage License Rules (cont’d) • Certificates filed and maintained by the County Clerk • May not be issued for Attorney-in-Fact marriages [FC 420 (b)] • Parties attest under penalty of perjury that they are living together as spouses
License and Certificate of Confidential Marriage • License becomes confidentialafter marriage is solemnized • Record is held confidential– not for public viewing • County Clerk may only indicate if there is a record of the marriage • Court order is required to release the date or any other facts contained in the certificate
AUTHORIZED NOTARIES • Fee to file an application and a renewal is $300 • Renewed annually • Must be filed in the County where the notary resides • Notary must successfully complete a mandatory maximum of six hours of instruction given by the County Clerk in the county where they are registered [FC 532]. • For a notary to perform the marriage, she/he must be one of the persons authorized under Family Code, Section 400, e.g., priest, minister, or rabbi.
AUTHORIZED NOTARIES (cont’d) • Secretary of State suggests you contact your County Counsel or District Attorney for guidance if you have a question as to whether or not GC 8224(a) prohibits the notary public who has acknowledged the signature of the parties to the marriage from also being the person solemnizing this marriage. • GC 8224. A notary public who has a direct financial or beneficial interest in a transaction shall not perform any notarial act in connection with such transaction.
General Information • California State Law does not require persons performing marriages to file credentials with the Clerk of the Court • County and State are not responsible for verification of credentials • The State does not maintain central registry of clergy members • Verification is at the discretion of the parties to the marriage
Who can perform ceremonies? • Persons over the age of 18, authorized to solemnize marriage ceremonies in California are as follows [FC 400]: • A priest, minister, or rabbi of any religious denomination • Note: Captains of the Salvation Army; and a religious leader or shaman are authorized to perform marriages in California • A judge or retired judge, commissioner, retired commissioner or assistant commissioner of a court of record in California • NOTE: Out of State judges are not authorized to perform marriages in California • A judge or magistrate who has resigned from office • Any of the following judges or magistrates of theUnited States: • A Justice or retired justice of the United States Supreme Court • A judge or retired judge of a Court of Appeals, district court, or court created by an act of Congress the judges of which are entitled to hold office during good behavior • A judge or retired judge of a bankruptcy court or a tax court • A United States magistrate or a retired magistrate • A California legislator or constitutional officer, or a member of Congress representing a district within this state while that person holds office
Officiant Requirements • Must know the California laws regarding performance of a marriage ceremony and the requirements for officiants • Must review the marriage license prior to solemnizing the marriage • Note: Any person who solemnizes a marriage without first reviewing the license is guilty of a misdemeanor [Penal Code 360]
Officiant Requirements (cont’d) • Must complete the marriage license and obtain the signature of a witness [FC 422] • Must return the completed original marriage license to the issuing County Recorder (or County Clerk for confidential licenses) within 10 days of the ceremony • Note: If a license is lost, damaged, or destroyed, before a marriage ceremony takes place, theapplicants must purchase a new marriage license and the old license shall be void. [FC 360 (d), 510 (d)] • Must cooperate with state or local officials by replying promptly to inquiries concerning any entry on the license.
Question: • Does the marriage officiant have to review the marriage license prior to solemnizing the marriage?
Form of Marriage Ceremony • According to Family Code §420, apublic marriage (VS 117) in California requires • Minimum of 4 people [FC 420]: • An unmarried male • An unmarried female • A person solemnizing the marriage • At least one witness • Parties must declare, in the physical presence of the person solemnizing the marriage and the necessary witnesses, that they take each other as husband and wife (spouse)
Certification of Person Solemnizing Marriage • After the marriage is solemnized, the officiant must complete the certification portion of the marriage license • On the VS-115 and VS 116 forms, the parties to the marriage complete the certification portion
Certification of Person Solemnizing Marriage (cont’d) • Fields 28A – 28C: • Enter month, day and year of ceremony in field 28A– date must be on/after issue date shown in field 25A and not later than expiration date shown in field 25B. Enter name of city and county where the event took place in field 28 B-C – do not list landmark name and do not leave blank • Fields 29A – 29E • Officiant signs his/her name in field 29A • Note: Only one entry is allowed in this box