SB1306 would remove from the state Family Code language that marriage must be "between a man and a woman." It would substitute gender-neutral language, define marriage as a personal relation arising from a civil contract between two persons, and remove limits on the state recognizing the validity of same-sex marriages performed outside of California.
The bill removes "discriminatory language" from the Family Code and brings state law into compliance with federal and state court decisions allowing same-sex marriages, said Sen. Mark Leno, D-San Francisco.
The Bill's text in part reads in part:
An act to amend Sections 300, 301, 302, 420, 500, 720, 721, 750, 751, 752, 754, 761, 1102, 1500, 1620, 1839, 2200, 2201, 2210, 2211, 2322, 2400, 2401, 3120, 3450, 3551, 3580, 3585, 3600, 4323, and 4930 of, to amend the heading of Chapter 2 (commencing with Section 720) of Part 1 of Division 4 of, to amend the heading of Chapter 3 (commencing with Section 1620) of Part 5 of Division 4 of, to repeal Section 308.5 of, and to repeal and add Section 308 of, the Family Code, relating to marriage.
LEGISLATIVE COUNSEL'S DIGEST
SB 1306, as amended, Leno. Marriage.
An existing provision of the California Constitution, which has been held unenforceable, states that only marriage between a man and a woman is valid or recognized in this state. An existing statutory provision likewise provides that only marriage between a man and a woman is valid or recognized in this state.
This bill would repeal that statutory provision.
Existing statutory law provides that marriage is a personal relationship arising out of a civil contract between a man and a woman. Under existing law, a marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state, except that a marriage between 2 persons of the same sex contracted outside this state is valid in this state only if the marriage was contracted prior to November 5, 2008.
This bill would instead provide that marriage is a personal relation arising out of a civil contract between 2 persons, and would make conforming changes with regard to the consent to, and solemnization of, marriage. The bill would also delete the limitation on the validity of marriages contracted outside this state between 2 persons of the same sex.
Under existing law, a reference to “husband” and “wife,” “spouses,” or “married persons,” or a comparable term, includes persons who are lawfully married to each other and persons who were previously lawfully married to each other, as is appropriate under the circumstances of the particular case.
The bill would delete references to “husband” or “wife” in the Family Code and would instead refer to a “spouse,” and would make other related changes.
Existing law establishes, except as specified, a rebuttable presumption of decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex.
This bill would make that rebuttable presumption of decreased need for spousal support applicable if the supported party is cohabitating with a “nonmarital partner.”
This bill would declare that the purpose of the act is to clarify that laws relating to marriage and the rights and responsibilities of spouses apply equally to opposite-sex and same-sex spouses and that the changes are not intended to affect existing decisional law otherwise interpreting the laws amended in the act.
Vote: majority Appropriation: no Fiscal Committee: no Local Program: no
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1.
The Legislature finds and declares that the purpose of this act is to clarify that all laws relating to marriage and the rights and responsibilities of spouses apply equally to opposite-sex and same-sex spouses. These changes are not intended to affect any existing decisional law otherwise interpreting the statutes amended in this act.
SECTION 1.SEC. 2.
Section 300 of the Family Code is amended to read:300.
(a) Marriage is a personal relation arising out of a civil contract between two persons, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500).
(b) For purposes of this part, the document issued by the county clerk is a marriage license until it is registered with the county recorder, at which time the license becomes a marriage certificate.
SEC. 2.SEC. 3.
Section 301 of the Family Code is amended to read:301.
Two unmarried persons 18 years of age or older, who are not otherwise disqualified, are capable of consenting to and consummating marriage.
SEC. 3.SEC. 4.
Section 302 of the Family Code is amended to read:302.
(a) An unmarried person under 18 years of age is capable of consenting to and consummating marriage upon obtaining a court order granting permission to the underage person or persons to marry.
(b) The court order and written consent of the parents of each underage person, or of 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. 4.SEC. 5.
Section 308 of the Family Code is repealed.
SEC. 5.SEC. 6.
Section 308 is added to the Family Code, to read:308.
A marriage contracted outside this state that would be valid by laws of the jurisdiction in which the marriage was contracted is valid in this state.
SEC. 6.SEC. 7.
Section 308.5 of the Family Code is repealed.
SEC. 7.SEC. 8.
Section 420 of the Family Code is amended to read:420.
(a) No particular form for the ceremony of marriage is required for solemnization of the marriage, but the parties shall declare, in the physical presence of the person solemnizing the marriage and necessary witnesses, that they take each other as spouses.
(b) Notwithstanding subdivision (a), a member of the Armed Forces of the United States who is stationed overseas and serving in a conflict or a war and is unable to appear for the licensure and solemnization of the marriage may enter into that marriage by the appearance of an attorney in fact, commissioned and empowered in writing for that purpose through a power of attorney. The attorney in fact must personally appear at the county clerk’s office with the party who is not stationed overseas, and present the original power of attorney duly signed by the party stationed overseas and acknowledged by a notary or witnessed by two officers of the United States Armed Forces. Copies in any form, including by facsimile, are not acceptable. The power of attorney shall state the full given names at birth, or by court order, 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 a part of the marriage certificate upon registration.
(c) No contract of marriage, if otherwise duly made, shall be invalidated for want of conformity to the requirements of any religious sect.
SEC. 8.SEC. 9.
Section 500 of the Family Code is amended to read:500.
When two unmarried people, not minors, have been living together as spouses, they may be married pursuant to this chapter by a person authorized to solemnize a marriage under Chapter 1 (commencing with Section 400) of Part 3, without the necessity of first obtaining health certificates.
SEC. 9.SEC. 10.
The heading of Chapter 2 (commencing with Section 720) of Part 1 of Division 4 of the Family Code is amended to read:CHAPTER 2. Relation of Spouses
SEC. 10.SEC. 11.
Section 720 of the Family Code is amended to read:720.
Spouses contract toward each other obligations of mutual respect, fidelity, and support.
SEC. 11.SEC. 12.
Section 721 of the Family Code is amended to read:721.
(a) Subject to subdivision (b), either spouse may enter into any transaction with the other, or with any other person, respecting property, which either might if unmarried.
(b) Except as provided in Sections 143, 144, 146, 16040, and 16047 of the Probate Code, in transactions between themselves, spouses are subject to the general rules governing fiduciary relationships that control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners, as provided in Sections 16403, 16404, and 16503 of the Corporations Code, including, but not limited to, the following:
(1) Providing each spouse access at all times to any books kept regarding a transaction for the purposes of inspection and copying.
(2) Rendering upon request, true and full information of all things affecting any transaction that concerns the community property. Nothing in this section is intended to impose a duty for either spouse to keep detailed books and records of community property transactions.
(3) Accounting to the spouse, and holding as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other spouse that concerns the community property.
SEC. 12.SEC. 13.
Section 750 of the Family Code is amended to read:750.
Spouses may hold property as joint tenants or tenants in common, or as community property, or as community property with a right of survivorship.
SEC. 13.SEC. 14.
Section 751 of the Family Code is amended to read:751.
The respective interests of each spouse in community property during continuance of the marriage relation are present, existing, and equal interests.
SEC. 14.SEC. 15.
Section 752 of the Family Code is amended to read:752.
Except as otherwise provided by statute, neither spouse has any interest in the separate property of the other.
SEC. 15.SEC. 16.
Section 754 of the Family Code is amended to read:754.
If notice of the pendency of a proceeding for dissolution of the marriage, for nullity of the marriage, or for legal separation of the parties is recorded in any county in which either spouse resides on real property that is the separate property of the other, the real property shall not for a period of three months thereafter be transferred, encumbered, or otherwise disposed of voluntarily or involuntarily without the joinder of both spouses, unless the court otherwise orders.
SEC. 16.SEC. 17.
Section 761 of the Family Code is amended to read:761.
(a) Unless the trust instrument or the instrument of transfer expressly provides otherwise, community property that is transferred in trust remains community property during the marriage, regardless of the identity of the trustee, if the trust, originally or as amended before or after the transfer, provides that the trust is revocable as to that property during the marriage and the power, if any, to modify the trust as to the rights and interests in that property during the marriage may be exercised only with the joinder or consent of both spouses.
(b) Unless the trust instrument expressly provides otherwise, a power to revoke as to community property may be exercised by either spouse acting alone. Community property, including any income or appreciation, that is distributed or withdrawn from a trust by revocation, power of withdrawal, or otherwise, remains community property unless there is a valid transmutation of the property at the time of distribution or withdrawal.
(c) The trustee may convey and otherwise manage and control the trust property in accordance with the provisions of the trust without the joinder or consent of either spouse unless the trust expressly requires the joinder or consent of one or both spouses.
(d) This section applies to a transfer made before, on, or after July 1, 1987.
(e) Nothing in this section affects the community character of property that is transferred before, on, or after July 1, 1987, in any manner or to a trust other than described in this section.
SEC. 17.SEC. 18.
Section 1102 of the Family Code is amended to read:1102.
(a) Except as provided in Sections 761 and 1103, either spouse has the management and control of the community real property, whether acquired prior to or on or after January 1, 1975, but both spouses, either personally or by a duly authorized agent, must join in executing any instrument by which that community real property or any interest therein is leased for a longer period than one year, or is sold, conveyed, or encumbered.
(b) Nothing in this section shall be construed to apply to a lease, mortgage, conveyance, or transfer of real property or of any interest in real property between spouses.
(c) Notwithstanding subdivision (b):
(1) The sole lease, contract, mortgage, or deed of the husband, holding the record title to community real property, to a lessee, purchaser, or encumbrancer, in good faith without knowledge of the marriage relation, shall be presumed to be valid if executed prior to January 1, 1975.
(2) The sole lease, contract, mortgage, or deed of either spouse, holding the record title to community real property to a lessee, purchaser, or encumbrancer, in good faith without knowledge of the marriage relation, shall be presumed to be valid if executed on or after January 1, 1975.
(d) No action to avoid any instrument mentioned in this section, affecting any property standing of record in the name of either spouse alone, executed by the spouse alone, shall be commenced after the expiration of one year from the filing for record of that instrument in the recorder’s office in the county in which the land is situated.
(e) Nothing in this section precludes either spouse from encumbering his or her interest in community real property, as provided in Section 2033, to pay reasonable attorney’s fees in order to retain or maintain legal counsel in a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties.
SEC. 18.SEC. 19.
Section 1500 of the Family Code is amended to read:1500.
The property rights of spouses prescribed by statute may be altered by a premarital agreement or other marital property agreement.
SEC. 19.SEC. 20.
The heading of Chapter 3 (commencing with Section 1620) of Part 5 of Division 4 of the Family Code is amended to read:CHAPTER 3. Agreements Between Spouses
SEC. 20.SEC. 21.
Section 1620 of the Family Code is amended to read:1620.
Except as otherwise provided by law, spouses cannot, by a contract with each other, alter their legal relations, except as to property.
SEC. 21.SEC. 22.
Section 1839 of the Family Code is amended to read:1839.
(a) At or after the hearing, the court may make orders in respect to the conduct of the spouses or parents and the subject matter of the controversy that the court deems necessary to preserve the marriage or to implement the reconciliation of the spouses. No such order shall be effective for more than 30 days from the hearing of the petition unless the parties mutually consent to a continuation of the time the order remains effective.
(b) A reconciliation agreement between the parties may be reduced to writing and, with the consent of the parties, a court order may be made requiring the parties to comply fully with the agreement.
(c) During the pendency of a proceeding under this part, the superior court may order a spouse or parent, as the case may be, to pay an amount necessary for the support and maintenance of the other spouse and for the support, maintenance, and education of the minor children, as the case may be. In determining the amount, the superior court may take into consideration the recommendations of a financial referee if one is available to the court. An order made pursuant to this subdivision shall not prejudice the rights of the parties or children with respect to any subsequent order that may be made. An order made pursuant to this subdivision may be modified or terminated at any time except as to an amount that accrued before the date of filing of the notice of motion or order to show cause to modify or terminate.
SEC. 22.SEC. 23.
Section 2200 of the Family Code is amended to read:2200.
Marriages between parents and children, ancestors and descendants of every degree, and between siblings of the half as well as the whole blood, and between uncles or aunts and nieces or nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate.
SEC. 23.SEC. 24.
Section 2201 of the Family Code is amended to read:2201.
(a) A subsequent marriage contracted by a person during the life of his or her former spouse, with a person other than the former spouse, is illegal and void, unless:
(1) The former marriage has been dissolved or adjudged a nullity before the date of the subsequent marriage.
(2) The former spouse (A) is absent, and not known to the person to be living for the period of five successive years immediately preceding the subsequent marriage, or (B) is generally reputed or believed by the person to be dead at the time the subsequent marriage was contracted.
(b) In either of the cases described in paragraph (2) of subdivision (a), the subsequent marriage is valid until its nullity is adjudged pursuant to subdivision (b) of Section 2210.
SEC. 24.SEC. 25.
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 without the capability of consenting to the marriage as provided in Section 301 or 302, unless, after attaining the age of consent, the party for any time freely cohabited with the other as his or her spouse.
(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 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 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 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. 25.SEC. 26.
Section 2211 of the Family Code is amended to read:2211.
A proceeding to obtain a judgment of nullity of marriage, for causes set forth in Section 2210, must be commenced within the periods and by the parties, as follows:
(a) For causes mentioned in subdivision (a) of Section 2210, by any of the following:
(1) The party to the marriage who was married under the age of legal consent, within four years after arriving at the age of consent.
(2) A parent, guardian, conservator, or other person having charge of the minor, at any time before the married minor has arrived at the age of legal consent.
(b) For causes mentioned in subdivision (b) of Section 2210, by either of the following:
(1) Either party during the life of the other.
(2) The former spouse.
(c) For causes mentioned in subdivision (c) of Section 2210, by the party injured, or by a relative or conservator of the party of unsound mind, at any time before the death of either party.
(d) For causes mentioned in subdivision (d) of Section 2210, by the party whose consent was obtained by fraud, within four years after the discovery of the facts constituting the fraud.
(e) For causes mentioned in subdivision (e) of Section 2210, by the party whose consent was obtained by force, within four years after the marriage.
(f) For causes mentioned in subdivision (f) of Section 2210, by the injured party, within four years after the marriage.
SEC. 26.SEC. 27.
Section 2322 of the Family Code is amended to read:2322.
For the purpose of a proceeding for dissolution of marriage, each spouse may have a separate domicile or residence depending upon proof of the fact and not upon legal presumptions.In June, the U.S. Supreme Court left in place a lower court judge's order striking down as unconstitutional a ballot measure known as Proposition 8, the 2008 voter initiative that outlawed same-sex marriages in California. A 5-4 court majority ruled that the ban's sponsors lacked authority to defend the measure on appeal, though the justices did not directly address the ban's constitutionality.
Marriages resumed in late June after the 9th U.S. Circuit Court of Appeals lifted a stay it had imposed on the lower court ruling. The state Supreme Court dismissed a final challenge by the ban's backers in August.
"I cannot bring myself, though, to diminish the words 'husband and wife,' and this clearly does that. Throughout history those words have been widely used and accepted," said Sen. Jim Nielsen, R-Gerber, the only senator to speak in opposition. "They're kind of sacred terms, I would argue, and by this bill we are diminishing those very important words."
The bill was sent to the Assembly on a 25-10 vote, with only Republicans in opposition. Two Republicans, Anthony Cannella of Ceres and Ted Gaines of Roseville, voted in favor.
"All this bill does is bring our Family Code section up to date to comply with those two court decisions," Leno said. He added later: "The sky did not fall, civilization as we know it did not end" when gay marriages began.
Meanwhile our legislators in Jamaica went and are still going the opposite direction, case in point the present Prime Minister when she was in opposition sided with Bruce "Not in my Cabinet" Golding (audio below) in an invented diversionary tactic when no such rights under the then charter of rights debate have been demanded; she said on October 20, 2009 "Mr Speaker when we accepted the final report from the joint select committee that were looking at the bill we were completely satisfied with their recommendation of a provision to restrict marriage and like relationships to one man and one woman within Jamaica and that the provision should be specifically spelt out so that there could be no ambiguity ………. yes one man one woman (laughter in the house) and if you are Jamaican and go overseas the same applies ……….."
Now we see the ever shifting goal post of the suggested conscience vote on buggery and the response from the opposition on a referendum on the issue as clearly the election positioning has begun. Of course this is also alongside the antigay voices in the religious community who are opposed to gay marriage when we can't even get passed just basic tolerance, for e.g. Lawyers' Christian Fellowship's Shirley Richards says lesbian sex should be criminalized as buggery ..........
the present PNP administration seems to want us to forget their own record on buggery and the sideshow to reinforce anti gay sentiments by opposing gay marriage in that statement over the signature of the then justice minister A. J. Nicholson as captured in that cartoon above originally published January 19, 2007 in the Gleaner newspaper, also see "No To Same Sex Marriage" now fast forward to February 2014 here is the man now in his capacity as Foreign Affairs Minister: Foreign Affairs Minister says Govt should be cautious on gay rights issues in Jamaica
Promised (I mean suggested) Conscience vote on Buggery law not a priority right now (yet again) says PM
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