seeta said:
I was married in California in 1968 and husband had not yet divorced from Indian marriage. Three years later his
divorce was finalized. We are now living in Florida and
after 33 years I am wondering if I am legally married.
My response:
No, you are not married - - per se, from a legal standpoint. Insofar as California marriages are concerned, "time" does not "cure" a void marriage, like it does when married in certain other States. As a result of the fact that your marriage was void right at the beginning, you have merely been "living together" for all of these years.
A bigamous marriage is a subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any person other than such former husband or wife. Such a marriage is illegal and void from the beginning, unless [Fam C §2201]:
(1). The former marriage has been dissolved or declared a nullity prior to the date of the subsequent marriage; or
(2). The former husband or wife is absent and not known to such person to be living for 5 successive years immediately preceding the subsequent marriage, or is generally reputed or believed by such person to be dead at the time a subsequent marriage was contracted, in either of which cases the subsequent marriage is only voidable. [For further discussion of voidable marriage, see § 20:89] Where a bigamous marriage is voidable, a nullity action can be brought by either party to that marriage during the life of the other [Fam C §2211(b)(1)] or by the spouse from the prior continuing marriage [Fam C §2211(b)(2)].
A void marriage is considered to be legally nonexistent from the beginning, and, technically, the "spouses" can simply leave each other without any legal action. However, if there are children and property of the marriage, a nullity judgment should be obtained, since it will officially declare the marriage void and will make the declaration (annullment) a public record.
Essentially, the procedure for obtaining a judgment of nullity is identical to the procedure for obtaining a dissolution and associated relief. A voidable marriage may be terminated by a decree of dissolution. [Fam C §310] Technically, parties to a void marriage cannot obtain a decree of dissolution because there is no "marriage" to dissolve. However, even if the validity of the "marriage" is at issue, a party who wishes to obtain a dissolution can simply file a Judicial Council petition for dissolution, and operate on the assumption that the marriage is valid until the opposition tries to prove otherwise. If it is apparent from the evidence that no marriage occurred, the petition for judgment of dissolution should be denied. [Sutton v Sutton (1956, 4th Dist) 145 Cal App 2d 730, 303 P2d 21] However, the court may proceed to determine property rights, precluding the necessity of multiple lawsuits. [Sanguinetti v Sanguinetti (1937) 9 Cal 2d 95, 69 P2d 845, 111 ALR 342]
Although the choice between dissolution and nullity must ultimately be made, it is not required at the time of filing. It is often good practice to plead the actions in the alternative. [CRC 1221] This is recommended where there is some doubt as to whether the grounds for nullity exist.
A dispute will generally arise if one party is a putative spouse who wants support and property division under the Family Code, and the other party wants to prove that no marriage had occurred in order to have the case decided under the Marvin guidelines. [Marvin v Marvin (1976) 18 Cal 3d 660, 134 Cal Rptr 815, 557 P2d 106]
If it is alleged that a marriage is voidable, the judge will look for a quick separation after the party discovers the fact that makes the marriage voidable. In a case where there is an allegation of fraud (for example, husband told wife he was a minister before they married, wife married him for that reason, later discovered he was not), the court may be more sympathetic where the discovery of the fraudulent act was immediately followed by a separation, rather than followed by several years of living together and a separation after a fight.
If the nullity petition is opposed, it may be preferable to avoid a contested hearing concerning the issue of the voidability of the marriage by seeking a dissolution (the grounds of which are usually simple to establish unilaterally)
Because of public policy and the state’s interest in preserving marriage, a judgment of nullity in a default proceeding may be obtained only on production of clear, satisfactory, and convincing evidence that the marriage should be annulled. [Maduro v Maduro (1944) 62 Cal App 2d 776, 145 P2d 683]
There are other facts you need to consider should you decide to split up. For example, would you be considered a "Putitive Spouse", and thus entitled to "Palimony" rights ?
You'll need to see a local attorney for an indepth discussion of your full situation.
IAAL
