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Same Sex Marriage Laws

The history of state and federal laws regarding same-sex marriage dates back to 1971. This was when the first lawsuit regarding same-sex marriage was made. The Supreme Court made a decision and legalized same-sex marriage in 2015 in the entire country. Initially, the legal definition of marriage did not include same-sex marriage. For many decades, debates about same-sex marriage persisted. Over time, various states, including California, gave gay and lesbian couples the same rights as heterosexual couples when the Supreme Court overturned the proposition and same-sex marriages became legal in California. The current California marriage law allows and recognizes same-sex marriages. If you need guidance on same-sex marriages, the Los Angeles Divorce Lawyer is here to help you.

California Law on Same-sex Marriage

For same-sex marriage to be legal in California, certain conditions have to be met. These conditions are:

  • Legal age
  • Legal marriage capacity
  • Individual consent to marriage

According to the law, both parties must have consented to same-sex marriage for it to be legal. Consent means that the parties entered the union out of free will, and none of them was coerced in any way to marry. There should be a clear intention to marry, and there should be no misunderstanding or mistake regarding the union's nature. Consent exists if the couples meet all the above conditions.

Marriage Capacity

You might be wondering about the meaning of marriage capacity and what it implies. A person can only have a marriage capacity if they are of sound mind. A person must have the ability to understand and appreciate the nature of marriage or the intended union. It's worth noting that this legal requirement doesn't prohibit a person suffering from a mental illness from marrying. A person is presumed to be of sound mind as long as they can understand their obligation to their spouse. If a person has a physical inability to consummate a marriage, this doesn't qualify as a lack of marriage capacity. It doesn't prevent the person from having a legal capacity to marry.

Legal Age

According to California law, a person can only get married if they are of legal age. The marriage age of consent in California is 18 years. With parental consent, a couple can get married at the minimum age of 16 years. The State of California allows minors who haven't yet attained 18 years to get married. However, the minor must obtain a court order that will enable them to get married. They must also have the capacity to consent to the union or marriage. Before the court grants minors a permit to get married, they might require the minors to undergo counseling conducted by an interdenominational organization. The purpose of counseling is to ensure that the minor understands what is expected of them in marriage and that they are in their right mind. If the court recommends a counseling program, the minor will have to pay a counseling fee.

The minors have written consents from their parents, showing that they have consented or permitted the minors to get married.  The court permitted, together with parental consent allows the minors to get married. A court clerk in Los Angeles will write the consent alongside the court order showing that the minors can get married. These requirements regarding marriages involving minors aim at safeguarding minors and ensuring that they do not enter into marriages that they do not agree to.

Obtaining a Marriage License

For a couple to get married, they must obtain a marriage license before the marriage. A couple should obtain the license from the county clerk. In California, a marriage license is valid for 90 days from the issuance date. Therefore, after receiving the marriage license, you have to get married within three months for the marriage and the license to be valid. After the wedding ceremony and the completion and signing of the marriage certificate, you should return it to the county clerk within ten days for filing. You have to return the signed license to the county clerk's office of issue.

Choosing the Person to Marry

Are you free to marry any person you want? Certain restrictions prevent you from marrying certain persons. For instance, it is illegal to marry your blood relative closer than a third cousin. In California, the law allows first cousins to marry but only if they are not of childbearing age. The state of California allows same-sex marriages. However, the state laws do not allow marriage between an ancestor and their descendant. It is illegal for a brother and sister, uncle and niece, or aunt and nephew to get married. California laws also prohibit polygamy and bigamy marriages.

When a Same-sex Marriage Occurs from another Jurisdiction

If a same-sex occurs from another jurisdiction, California laws recognize such marriages. However, the marriage must be legally recognized and validly made in the jurisdiction where it occurred. Therefore, if you get married in Georgia, your same-sex marriage will be recognized and valid in Los Angeles, if you happen to relocate to Los Angeles.

Deeper Look at California's Same-sex Marriage Laws

In 2013, California legalized same-sex marriages. This was after a landmark ruling by the United States Supreme Court. Before the Supreme Court's verdict, there were some rulings made by federal and state courts as well as voter initiatives. However, these rulings were later declared unconstitutional. In 2006, the supreme court of California ruled against the ban that rendered same-sex marriages unconstitutional. The court made this ruling based on equal protection. After this ruling, the state legalized same-sex marriages.

Proposition and amendment in 2008 declared that marriage was only possible and allowable between one man and one woman. The voters in California passed this proposition by a slim margin in 2008. This voter's proposition banned same-sex marriages in California. However, the proposition allows same-sex couples who had married legally to maintain their unions irrespective of the proposition's passage and prohibiting same-sex marriages.

Judge Walker's federal ruling in 2010 declared the proposition and unconstitutional. According to the court ruling, the proposition violated the federal due process and equal protection clauses. Later, this decision by Judge Walker was appealed to the U.S Supreme Court.

The United States Supreme Court made a ruling in Hollingsworth vs. Perry in 2013. In this ruling, the Supreme Court maintained that same-sex marriage appellants lacked good ground to oppose the lower court ruling. The Supreme Court's ruling legalized same-sex marriages in California in 2013. After this ruling, California's same-sex couples received marriage certificates.

Domestic Partnerships among Same-sex Partners

There are numerous similarities between domestic partnerships and civil unions. Domestic partnerships are relationships recognized by the law. If you are in a domestic partnership with your spouse, you will have limited state rights even if you wish to remain unmarried or your marriage is prohibited despite staying together. Civil marriages or unions are allowed in several states in the U.S. On the other hand, domestic partnerships are available at state or city levels. If a couple chooses to be in a domestic partnership, they will be eligible for domestic partners' benefits at companies or organizations like employment benefits. In California, couples in domestic partnerships enjoy nearly all the rights accessed by married couples. The rights are accessed even by same-sex couples.

Understanding a Domestic Partnership

A domestic partnership exists if two consenting adults agree to share their lives in a committed and intimate relationship. A domestic partnership can occur between heterosexual and same-sex couples. Domestic partnerships allowed same-sex couples to access many of the rights enjoyed by heterosexual couples before the Supreme Court's verdict in 2013. There are several requirements for entering a domestic partnership in California and for your union to qualify as a domestic partnership:

  • You and your partner must have a shared or common residence
  • You and your partner must declare your domestic partnership
  • You must not be blood relatives with your partner in a way that you can't marry each other
  • Neither you nor your partner should be married to another person
  • You or your partner should not be in another domestic relationship that is yet to be dissolved or terminated
  • Both you and your partner must be above 18 years
  • You must have consented to be in the domestic partnership
  • Both partners belong to the same-sex, and if not, one individual must have attained 62 years

While in a domestic partnership, you will have access to almost all the state-level rights enjoyed by people in marriage. Some of the rights that people in domestic partnership enjoy include:

  • Ability to make emergency medical decisions
  • Inheritance rights
  • Accessing spousal benefits, including Workers compensation
  • Tax relief and spousal testimonial privilege

Pre-Nuptial Agreements in Same-Sex Marriage

Like people in a regular or heterosexual marriage, people in a same-sex marriage can also have a pre-nuptial agreement. The alternative name for a prenuptial agreement is a prenup or premarital agreement. This agreement revolves around the property rights between a husband and a wife. The prenuptial agreement only becomes active when a couple gets married. There are many benefits and disadvantages of entering a prenuptial agreement. Some advantages and disadvantages are emotional, while others are financial.

Most people assume that prenups are for wealthy people. This is a misconception because any person can enter a prenuptial agreement. When signing a prenuptial agreement, it is advisable to seek the legal representation of an experienced attorney. The prenuptial agreement is made between two people with different goals and interests. A prenuptial agreement must be in writing, and both parties must sign the agreement. When receiving and signing a prenuptial agreement, a spouse must have information regarding:

  • The complete financial information of the other party
  • The spouse receiving the agreement must have gone through the agreement and reviewed it
  • The party receiving the agreement must be represented by a separate attorney than the one representing the other party

Before signing, a spouse should have received ample information about the prenuptial agreement's terms and obligations. They must also have signed an affidavit to the effect.

At some point, the couple may wish to revoke the prenup agreement. In this case, the agreement's revocation must be in writing, and both parties must sign. Specific requirements must be met for a prenuptial agreement to be enforceable:

  • Both spouses or partners must have entered the agreement voluntarily
  • Both parties must have a complete understanding of all the terms outlined in the prenuptial agreement
  • The terms outlined in the pre-nuptial agreement should not be fair or one-sided

The Typical Components of a Prenuptial Agreement

A prenuptial agreement may contain several conditions. A prenup provision will only be upheld if they do not violate the law or public policy. Usually, the components of a prenup revolve around property rights. A prenuptial agreement may address issues like:

  • Spousal rights regarding property owned jointly or individually by the spouses
  • The right to manage or control the property and how to dispose of property after dissolution of the marriage
  • Making a will or a trust to implement the prenuptial agreement's provisions
  • Disposition of death benefits from one or several life insurance policies
  • Choosing the law under which to construct the prenuptial agreement

If a prenuptial right affects a child's rights adversely, it might not be enforceable under California law. This is because California is committed to ensuring that parents always maintain and support their children.

Dissolution of Same-Sex Marriages in California

Like in heterosexual marriages, people in a same-sex marriage may choose to dissolve their marriage if it is no longer working. There are several options available to people who intend to end their marriage. These options are:

  • Annulment
  • Divorce
  • Separation

An annulment is a court order issued after a proceeding during which a marriage is dissolved. An annulment gives couples an option to end their marriage as if it was invalid or never existed in the first place. Divorce refers to a legal termination or dissolution of a marriage by a competent body or the court. A separation enables a couple to effect similar decisions as in a divorce regarding the shared property, child support, and child custody. However, separation won't end a marriage legally.

Marriage is a strong bond that unites two people and affects many areas of your life. Marriage changes your legal status and involves your emotions. You should take time to educate yourself regarding any issue of marriage, including same-sex marriages. You should consult a competent attorney if you need any information or clarification about same-sex marriages.

Terminating a Domestic Partnership Before Marriage

Do you have to terminate a domestic partnership before getting married? No, you and your partner can be in a domestic partnership and marriage. This is as long as you are getting married to the person you are in a domestic partnership with. If you and your partner do not want to get married, domestic partnerships are still available under California law, even for same-sex couples.

At times, it might be advantageous to be in both a domestic legal partnership and a legal marriage. This arrangement may benefit you if you move to another state or jurisdiction as a same-sex couple. You will also be protected whenever you travel to other countries. You should contact an experienced attorney regarding your specific situation.

Same-sex Marriage and Discrimination

Can private businesses deny same-sex couples services, especially the services for their wedding? No, California law is against all forms of discrimination against same-sex couples. Business establishments that provide goods and services can't discriminate against you based on your sexual orientation.  No business should discriminate against a person based on gender expression, sexual orientation, gender identity, and marital status. This law applies regardless of a business owner's religious beliefs or the beliefs of their employees. However, these laws might not apply to private organizations and clubs that do not serve the public but are member-based.

There is an exemption to this law when it comes to churches, clergy, and religious organizations. The law doesn't require these organizations to person same-sex marriages. However, some churches in California might embrace same-sex couples within their faith.

Same-Sex Marriage and Employment

You might be wondering whether you can be denied employment because you are in a same-sex marriage. California law is against employment discrimination based on a person's sexual orientation, gender expression, marital status, and gender identity. However, the situation might be different if your employer is a religious organization. Employers should provide the same benefits to same-sex couples as heterosexual spouses, but exemptions may exist if the employer is a religious organization.

Other individuals and entities like landlords and adoption facilities should not discriminate against you based on being a same-sex couple.

Find a Los Angeles Divorce Lawyer Near Me

Intense uncertainty surrounds the topic of same-sex marriage in California despite its legalization in 2013 by the United States Supreme Court. Many people in same-sex marriages do not understand their rights, yet they are entitled to the same rights as heterosexual marriages. If you need any guidance and advice regarding same-sex marriages, the Los Angeles Divorce Lawyer can help you. Contact us at 310-695-5212 today.



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