Marriage in California is a valid civil contract between a man and a woman who are both free and capable of marriage and consent. Marriage is considered a partnership that is permanent and dissoluble only judicially, not by the consent of the partners. In California, it must be licensed, witnessed and registered. Our state has not accepted common law marriages arising within its jurisdictional boundaries. Mere cohabitation in and of itself has no legal significance and no bearing upon any rights in property that the partners may acquire.
The nullity of a marriage depends upon statue. Statutory requirements for valid marriages refer solely to the circumstances at the time of the marriage. California courts will not determine a marriage to be null and void unless there was something wrong at its inception. A void marriage is void from its beginning. A ceremonial marriage, on the other hand, is presumed valid until declared null by proper judicial proceedings.
In a voidable marriage, one or both spouses must choose to dissolve it through the courts. Unlike voidable marriages, however, void marriages may be asserted and challenged in any proceeding wherein the fact of marriage is material. There is no statute of limitations affecting challenges to void marriages, unlike the law governing voidable marriages which must be attacked during their existence. A void marriage may be attacked directly or collaterally during the lifetime of both spouses or after the death of either.
When a person has entered into two successive marriages, the latter is presumed to be valid. The burden of proof is on the party assailing the marriage to show that the prior marriage had not been dissolved by death or judicial dissolution.
Voidable marriages include brothers and sisters, half-brothers and sisters, and between uncles and nieces and aunts and nephews. Void marriages also include those contracted by a person bigamously, such as with an already existing and not terminated valid marriage.
A marriage is voidable when a marriage is bigamous, wherein a former spouse is absent and not known to be living for at least five successive years immediately preceding the subsequent marriage or was believed to be dead. Voidable marriages also include those involving a minor or if one is of unsound mind. Where one or the other spouse marries under duress or fraud is also voidable under the law.
Finally, cohabitation is a right of married persons, but is not necessary for a marriage to be valid. A valid marriage could be performed in the proper ceremonies and pursuant to a license. The couple could then live apart but still be validly married.