Bill Text: CA SB404 | 2023-2024 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Prohibiting underage, unauthorized marriages.

Spectrum: Moderate Partisan Bill (Democrat 4-1)

Status: (Engrossed) 2023-09-01 - September 1 hearing: Held in committee and under submission. [SB404 Detail]

Download: California-2023-SB404-Introduced.html

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CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill

No. 404

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Introduced by Senator Wahab

February 09, 2023

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An act to amend Sections 297, 423, 2210, and 7002 of, and to repeal Sections 297.1, 298.8, 302, 303, 304, and 1501 of, the Family Code, and to repeal Sections 102233 and 102356 of the Health and Safety Code, relating to underage marriage.

LEGISLATIVE COUNSEL'S DIGEST

SB 404, as introduced, Wahab. Marriage: prohibition on minors.

(1) Existing law authorizes an unmarried person who is under 18 years of age to marry upon obtaining a court order granting permission and the written consent of at least one of the parents or the guardian of each underage party to the marriage, as specified. Existing law requires the court, if it considers it necessary, as part of the court order granting permission to marry, to require the parties to the prospective marriage of a minor to participate in premarital counseling, as specified.

Existing law provides that 2 unmarried, unrelated adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring may establish a domestic partnership by filing a declaration with the Secretary of State, if certain requirements are met. Existing law provides that a person under 18 years of age who, together with the person with whom the person proposes to establish a domestic partnership, meets the requirements for a domestic partnership other than the requirement of being at least 18 years of age, is capable of consenting to and establishing a domestic partnership upon obtaining a court order granting permission to the underage person or persons to establish a domestic partnership. Under existing law, registered domestic partners have the same rights, protections, and benefits as spouses.

This bill would repeal the authorization for a person under 18 years of age from being issued a marriage license or from establishing a domestic partnership, thereby prohibiting a person under 18 years of age from being issued a marriage license or from establishing a domestic partnership. The bill would make conforming changes.

(2) Existing law required the State Registrar to create a document no later than March 1, 2020, concerning marriage certificates in which one or both of the parties were minors at the time of solemnization of the marriage. Existing law requires the State Registrar to update that document annually, as specified. Existing law requires the local registrar to submit specified information for the purposes of that report.

This bill would repeal those provisions.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 Section 297 of the Family Code is amended to read:

297.

 (a) Domestic partners are two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.

(b) A domestic partnership shall be established in California when both persons file a Declaration of Domestic Partnership with the Secretary of State pursuant to this division, and, at the time of filing, all of the following requirements are met:

(1) Neither person is married to someone else or is a member of another domestic partnership with someone else that has not been terminated, dissolved, or adjudged a nullity.

(2) The two persons are not related by blood in a way that would prevent them from being married to each other in this state.

(3) Both persons are at least 18 years of age, except as provided in Section 297.1. age.

(4) Both persons are capable of consenting to the domestic partnership.

SEC. 2.

 Section 297.1 of the Family Code is repealed.

297.1.

(a)A person under 18 years of age who, together with the other proposed domestic partner, otherwise meets the requirements for a domestic partnership other than the requirement of being at least 18 years of age, may establish a domestic partnership upon obtaining a court order granting permission to the underage person or persons to establish a domestic partnership.

(b)(1)The court order and written consent of the parents of each person under 18 years of age or of one of the parents or the guardian of each person under 18 years of age, except as provided in paragraph (2), shall be filed with the clerk of the court, and a certified copy of the order shall be filed with the Secretary of State with the Declaration of Domestic Partnership.

(2)If it appears to the satisfaction of the court by application of a person under 18 years of age that the person requires a written consent to establish a domestic partnership and that the minor has no parent or guardian, or has no parent or guardian capable of consenting, the court may make an order consenting to establishing the domestic partnership. The order shall be filed with the clerk of the court and a certified copy of the order shall be filed with the Secretary of State with the Declaration of Domestic Partnership.

(3)Notwithstanding any other law, immediately after the Secretary of State creates or updates the document described in Section 298.8 using the information required for the document and that is contained in a certified copy of a court order filed with the Secretary of State with the Declaration of Domestic Partnership pursuant to this subdivision, the Secretary of State may dispose of the certified copy of the court order.

(c)In determining whether to issue a court order granting permission to establish a domestic partnership, the court shall do all of the following:

(1)Require Family Court Services to separately interview the parties intending to establish a domestic partnership and, if applicable, at least one of the parents or the guardian of each party who is a minor. If more than one parent or guardian is interviewed, the parents or guardians shall be interviewed separately.

(2)Require Family Court Services to prepare and submit to the court a written report, containing any assessment of potential force, threat, persuasion, fraud, coercion, or duress by either of the parties or their family members relating to the intended domestic partnership. The report shall also contain recommendations of Family Court Services for either granting or denying the parties permission to establish a domestic partnership. If Family Court Services knows or reasonably suspects that either party is a victim of child abuse or neglect, Family Court Services shall submit a report of the known or suspected child abuse or neglect to the county child protective services agency.

(3)After receiving the report of the assessments of Family Court Services, as described in paragraph (2), separately interview in camera each of the parties prior to making a final determination regarding the court order.

(4)Consider whether there is evidence of coercion or undue influence on the minor.

(d)If the court issues an order granting the parties permission to establish a domestic partnership, and if one or both of the parties are 17 years of age or younger, the parties shall be eligible to file a Declaration of Domestic Partnership with the Secretary of State no earlier than 30 days from the time the court order was issued.

(e)As part of the court order granting permission to establish a domestic partnership, the court shall, if it considers it necessary, require the parties to the prospective domestic partnership of a minor to participate, before the domestic partnership is established, in counseling concerning social, economic, and personal responsibilities incident to the domestic partnership. The parties shall not be required to confer with counselors provided by religious organizations of any denomination. In determining whether to order the parties to participate in the counseling, the court shall consider, among other factors, the ability of the parties to pay for the counseling. The court may impose a reasonable fee to cover the cost of counseling provided by the county or the court. The fees shall be used exclusively to cover the cost of the counseling services authorized by this section.

(f)(1)Only for purposes of completing the document described in Section 298.8, and not for purposes of making a determination regarding the court order, the gender of each party intending to establish a domestic partnership, if provided, shall be documented on the court order granting permission to establish the domestic partnership.

(2)The date of birth of each party intending to establish a domestic partnership shall also be documented on the court order granting permission to establish the domestic partnership.

(g)Upon issuance of the order granting permission to establish a domestic partnership, the minor shall be provided with the following information:

(1)The rights and responsibilities of an emancipated minor, including, but not limited to, the effects of emancipation as described in Chapter 2 (commencing with Section 7050) of Part 6 of Division 11.

(2)(A)The circumstances under which a domestic partnership may be determined by a court to be void or voidable and adjudged a nullity and the procedure for obtaining that judicial determination.

(B)The procedures for termination of a domestic partnership.

(3)Telephone numbers for the National Domestic Violence Hotline and the National Sexual Assault Hotline.

(4)The conditions under which an unemancipated minor may leave home and seek to remain in a shelter or otherwise live separately from the minor’s parent or guardian, and whether the consent or acquiescence of a parent or guardian is required to remain away from the home of the parent or guardian, the rights of an unemancipated minor to apply for a protective or restraining order to prevent abuse, and the rights of a minor to enter into contracts, including contracts for legal services and mental health counseling.

(h)(1)Subdivisions (c) and (d) do not apply to a minor who is 17 years of age and who has achieved a high school diploma or a high school equivalency certificate.

(2)Subdivision (d) does not apply to a minor who is 16 or 17 years of age and who is pregnant or whose prospective domestic partner is pregnant.

SEC. 3.

 Section 298.8 of the Family Code is repealed.

298.8.

(a)The Secretary of State shall create a document no later than March 1, 2020, with annual updates no later than March 1 of each year thereafter, disaggregated by county, containing only the following information concerning domestic partnerships that were registered during the preceding calendar year and in which one or both of the parties were minors at the time the domestic partnership was established:

(1)The total number of those registered domestic partnerships.

(2)Itemized for each of those registered domestic partnerships, the age of each party at the time the domestic partnership was established.

(3)Itemized for each of those registered domestic partnerships, the gender of each party as documented on the court order pursuant to Section 297.1, unless the court order does not include the gender.

(b)The document shall not contain the names, addresses, or other personal identifying information of parties to a registered domestic partnership, or any information identifying a registered domestic partnership. The document shall not contain a registered domestic partnership or a copy of the court order described in Section 297.1.

(c)The Secretary of State shall make the document available to the public upon request.

SEC. 4.

 Section 302 of the Family Code is repealed.

302.

(a)An unmarried person under 18 years of age may be issued a marriage license upon obtaining a court order granting permission to the underage person or persons to marry, in accordance with the requirements described in Section 304.

(b)The court order and written consent of at least one of the parents or the guardian of each underage person shall be filed with the clerk of the court, and a certified copy of the order shall be presented to the county clerk at the time the marriage license is issued.

SEC. 5.

 Section 303 of the Family Code is repealed.

303.

If it appears to the satisfaction of the court by application of a minor that the minor requires a written consent to marry and that the minor has no parent or has no parent capable of consenting, the court may make an order consenting to the issuance of a marriage license and granting permission to the minor to marry, in accordance with the requirements described in Section 304. The order shall be filed with the clerk of the court and a certified copy of the order shall be presented to the county clerk at the time the marriage license is issued.

SEC. 6.

 Section 304 of the Family Code is repealed.

304.

(a)In determining whether to issue a court order granting permission to marry pursuant to Section 302 or 303, the court shall do all of the following:

(1)Require Family Court Services to separately interview the parties intending to marry and, if applicable, at least one of the parents or the guardian of each party who is a minor. If more than one parent or guardian is interviewed, the parents or guardians shall be interviewed separately.

(2)Require Family Court Services to prepare and submit to the court a written report, containing any assessment of potential force, threat, persuasion, fraud, coercion, or duress by either of the parties or their family members relating to the intended marriage. The report shall also contain recommendations of Family Court Services for either granting or denying the parties permission to marry. If Family Court Services knows or reasonably suspects that either party is a victim of child abuse or neglect, Family Court Services shall submit a report of the known or suspected child abuse or neglect to the county child protective services agency.

(3)After receiving the report of the assessments of Family Court Services, as described in paragraph (2), separately interview in camera each of the parties prior to making a final determination regarding the court order.

(4)Consider whether there is evidence of coercion or undue influence on the minor.

(b)If the court issues an order granting the parties permission to marry pursuant to Section 302 or 303, and if one or both of the parties are 17 years of age or younger, the parties shall be eligible to request a marriage license no earlier than 30 days from the time the court order was issued.

(c)As part of the court order granting permission to marry under Section 302 or 303, the court shall, if it considers it necessary, require the parties to the prospective marriage of a minor to participate in premarital counseling concerning social, economic, and personal responsibilities incident to marriage. The parties shall not be required to confer with counselors provided by religious organizations of any denomination. In determining whether to order the parties to participate in the premarital counseling, the court shall consider, among other factors, the ability of the parties to pay for the counseling. The court may impose a reasonable fee to cover the cost of premarital counseling provided by the county or the court. The fees shall be used exclusively to cover the cost of the counseling services authorized by this section.

(d)(1)Only for purposes of completing the document described in Section 102233 of the Health and Safety Code, and not for purposes of making a determination regarding the court order, the gender of each party intending to marry, if provided, shall be documented on the court order granting permission to marry.

(2)The date of birth of each party intending to marry shall also be documented on the court order granting permission to marry.

(3)For purposes of the requirements on the person solemnizing the marriage under subdivision (b) of Section 423, and the requirements on the local registrar under subdivision (a) of Section 102356 of the Health and Safety Code, the court shall provide parties who are granted permission to marry with a copy of the court order granting permission to marry.

(e)Upon issuance of the order granting permission to marry, the minor shall be provided with the following information:

(1)The rights and responsibilities of an emancipated minor, including, but not limited to, the effects of emancipation as described in Chapter 2 (commencing with Section 7050) of Part 6 of Division 11.

(2)(A)The circumstances under which a marriage may be determined by a court to be void or voidable and adjudged a nullity and the procedure for obtaining that judicial determination.

(B)The procedures for legal separation or dissolution of marriage.

(3)Telephone numbers for the National Domestic Violence Hotline and the National Sexual Assault Hotline.

(4)The conditions under which an unemancipated minor may leave home and seek to remain in a shelter or otherwise live separately from the minor’s parent or guardian, and whether the consent or acquiescence of a parent or guardian is required to remain away from the home of the parent or guardian, the rights of an unemancipated minor to apply for a protective or restraining order to prevent abuse, and the rights of a minor to enter into contracts, including contracts for legal services and mental health counseling.

(f)(1)Subdivisions (a) and (b) do not apply to a minor who is 17 years of age and who has achieved a high school diploma or a high school equivalency certificate.

(2)Subdivision (b) does not apply to a minor who is 16 or 17 years of age and who is pregnant or whose prospective spouse is pregnant.

SEC. 7.

 Section 423 of the Family Code is amended to read:

423.

 (a)The person solemnizing the marriage shall return the marriage license, endorsed as required in Section 422, to the county recorder of the county in which the license was issued within 10 days after the ceremony.

(b)For purposes of Section 102356 of the Health and Safety Code, the person solemnizing the marriage shall include with the marriage license described in subdivision (a) a copy of the court order granting permission to marry described in Section 304, if one or both of the parties to the marriage were minors at the time of solemnization of the marriage.

SEC. 8.

 Section 1501 of the Family Code is repealed.

1501.

A minor may make a valid premarital agreement or other marital property agreement if the minor is emancipated, is otherwise capable of contracting marriage pursuant to Section 302 or 303, or has entered or is entering a marriage that is valid in the jurisdiction where the marriage is solemnized.

SEC. 9.

 Section 2210 of the Family Code is amended to read:

2210.

 A marriage is voidable and may be adjudged a nullity if any of the following conditions existed at the time of the marriage:

(a) The party who commences the proceeding or on whose behalf the proceeding is commenced was under 18 years of age, unless the party entered into the marriage pursuant to Section 302 or 303. former Section 302 or 303 in this state before January 1, 2024.

(b) The spouse of either party was living and the marriage with that spouse was then in force and that spouse (1) was absent and not known to the party commencing the proceeding to be living for a period of five successive years immediately preceding the subsequent marriage for which the judgment of nullity is sought or (2) was generally reputed or believed by the party commencing the proceeding to be dead at the time the subsequent marriage was contracted.

(c) Either party was of unsound mind, unless the party of unsound mind, after coming to reason, freely cohabited with the other as his or her their spouse.

(d) The consent of either party was obtained by fraud, unless the party whose consent was obtained by fraud afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as his or her their spouse.

(e) The consent of either party was obtained by force, unless the party whose consent was obtained by force afterwards freely cohabited with the other as his or her their spouse.

(f) Either party was, at the time of marriage, physically incapable of entering into the marriage state, and that incapacity continues, and appears to be incurable.

SEC. 10.

 Section 7002 of the Family Code is amended to read:

7002.

 A person under the age of 18 years is an emancipated minor if any of the following conditions is satisfied:

(a) The person has entered into a valid marriage, in another state or country, or in this state prior to January 1, 2024, or has established a valid domestic partnership, regardless of whether the marriage or the domestic partnership has been dissolved.

(b) The person is on active duty with the Armed Forces of the United States.

(c) The person has received a declaration of emancipation pursuant to Section 7122.

SEC. 11.

 Section 102233 of the Health and Safety Code is repealed.

102233.

(a)The State Registrar shall create a document no later than March 1, 2020, with annual updates no later than March 1 of each year thereafter, disaggregated by county, containing only the information received by a local registrar during the preceding calendar year pursuant to subdivision (a) of Section 102356, concerning marriage certificates in which one or both of the parties were minors at the time of solemnization of the marriage.

(b)The document shall not contain the names, addresses, or other personal identifying information of parties to a marriage certificate, or any information identifying a marriage certificate. The document shall not contain a marriage certificate or a copy of the court order described in Section 304 of the Family Code.

(c)The State Registrar shall make the document available to the public upon request.

SEC. 12.

 Section 102356 of the Health and Safety Code is repealed.

102356.

(a)For purposes of Section 102233, the local registrar of marriages shall submit to the State Registrar, at least annually, all of the following information concerning marriage certificates that are accepted for registration by him or her during the same calendar year and in which one or both of the parties were minors at the time of solemnization of the marriage:

(1)The total number of those marriage certificates.

(2)Itemized for each of those marriage certificates, the age of each party at the time of solemnization of the marriage.

(3)Itemized for each of those marriage certificates, the gender of each party as documented on the court order pursuant to Section 304 of the Family Code, unless the court order does not include the gender.

(b)The information submitted to the State Registrar pursuant to subdivision (a) shall not contain the names, addresses, or other personal identifying information of parties to a marriage certificate, or any information identifying a marriage certificate. The information shall not contain a marriage certificate or a copy of the court order described in Section 304 of the Family Code.

(c)(1)The local registrar of marriages shall not submit any information described in paragraphs (1) to (3), inclusive, of subdivision (a) if no marriage certificate described in subdivision (a) is accepted for registration by him or her during the same calendar year.

(2)For any marriage certificate described in subdivision (a), the local registrar of marriages is not required to submit any information described in paragraphs (1) to (3), inclusive, of subdivision (a) if the local registrar of marriages did not receive a copy of the court order from the person solemnizing the marriage pursuant to Section 423 of the Family Code. The local registrar of marriages may elect to submit any of that information, if otherwise available, even if he or she did not receive the copy of the court order.

(d)(1)Notwithstanding any other law, no earlier than two years after the local registrar of marriages submits the information described in subdivision (a) to the State Registrar, the local registrar may dispose of that information.

(2)Notwithstanding any other law, immediately after the local registrar of marriages submits the information described in subdivision (a) to the State Registrar, the local registrar may dispose of the copy of the court order received from the person solemnizing the marriage pursuant to Section 423 of the Family Code.

(e)Notwithstanding the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), the State Department of Public Health may implement this section through an all-county letter or similar instruction from the State Registrar without taking regulatory action.