Existing law allows 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 to 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 duly signed by the party stationed overseas and acknowledged before a notary or witnessed by 2 officers of the United States Armed Forces.

This bill would provide that the completion of the power of attorney is the sole determinant as to whether the county clerks office or State Registrar will accept the power of attorney.

Existing law allows 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 to 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 duly signed by the party stationed overseas and acknowledged before a notary or witnessed by 2 officers of the United States Armed Forces.

This bill would provide that the completion of the power of attorney is the sole determinant as to whether the county clerks office or State Registrar will accept the power of attorney.

Existing law allows 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 to 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 duly signed by the party stationed overseas and acknowledged by before a notary or witnessed by 2 officers of the United States Armed Forces.

This bill would provide that the completion of the power of attorney is the sole determinant as to whether the county clerks office or State Registrar will accept the power of attorney.

Existing law allows 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 to enter into that marriage by the appearance of an attorney in fact. fact, commissioned and empowered in writing for that purpose through a power of attorney duly signed by the party stationed overseas and acknowledged by a notary or witnessed by 2 officers of the United States Armed Forces.

This bill would remove the requirement that the member of the Armed Forces of the United States be serving in a conflict or war. provide that the completion of the power of attorney is the sole determinant as to whether the county clerks office or State Registrar will accept the power of attorney.

Existing law requires a court to refrain from making an order granting or modifying a custody order on an ex parte basis unless there has been a showing of immediate harm to the child or immediate risk that the child will be removed from the state.

This bill would make nonsubstantive changes to that provision.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2128

Author:(Achadjian)

As Amended Ver:June 6, 2016

Majority vote

Original Committee Reference: JUD.

SUMMARY: Limits the power of a county clerk or the State Register to reject a power of attorney from a member of the Armed Forces stationed overseas and seeking to marry "by proxy." Specifically, this bill provides that proper completion of a power of attorney by a member of the armed forces, stationed overseas, serving in a conflict or a war and seeking to marry through an attorney-in-fact, is the sole determinant as to whether the county clerk's office and the State Registrar must accept the power of attorney and allow the military member to get married.

The Senate amendments are technical.

EXISTING LAW allows a member of the United States armed forces who is stationed overseas and serving in a conflict or a war and is unable to appear for licensure and solemnization of his or her marriage to 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.

FISCAL EFFECT: None

COMMENTS: To prevent fraud, California has historically had a prohibition on "marriages by proxy," that is, marriages where one of the parties is not present at the required solemnization and is instead represented by an attorney-in-fact. In 2004, when the wars in Afghanistan and Iraq were raging, reservists were being called up for extended service with little warning. Based on the needs of the conflict, some ended up serving overseas for a year or longer, potentially wreaking havoc in the lives of their loved ones left behind.

It was against that backdrop, the Legislature passed SB 7 (Brulte), Chapter 476, Statutes of 2004, which established a process for marriage by proxy for those members of the armed forces who are serving overseas in a conflict or war zone. When considering the bill, the Legislature heard from Theresa Arnold. Her fiancé Marine Corps Lieutenant Thomas Cogan IV was stationed in Iraq. Theresa and Thomas are expecting their first child the next month, but under then-existing law, they have no way to get married prior to the birth of their child. Allowing marriage by proxy for members of the armed forces serving in a conflict or war overseas has helped ensure that military members' loved ones, including spouses and children, receive critical health and other benefits. In the case of Theresa Arnold and Thomas Cogan, their immediate marriage helped ensure that prenatal and birth costs were covered and that both Theresa and the baby received appropriate benefits should anything have happened to Lieutenant Cogan while in Iraq. Without that bill, they may not have been entitled to receive such benefits, whether in a timely manner or at all.

California is now one of only a handful of states, including Texas and Colorado, that permit marriage by proxy. Montana allows a "double proxy marriage" in which neither party must be present in the state in order to legally marry, provided at least one party is either a resident of Montana or a member of the military.

The current problem, according to the sponsor, the California Association of Clerks and Elections Officials, is that a small number of county clerks and state officials have questioned whether some of the overseas military members seeking to marry by proxy are actually in war or conflict zones and have, as a result, rejected some requests to marry by proxy or later rejected marriage licenses. Given the international nature of today's evolving threat of terrorism, it may not be clear to a county clerk or an official with the State Registrar where conflict zones are. Thus, it appears best to accept a military member's signed declaration, which as stated on the required form must be done under penalty of perjury, that he or she is serving in war or conflict zone. This bill does just that by providing that proper completion of a power of attorney by a member of the armed forces, stationed overseas and serving in a conflict or a war and seeking to marry through an attorney-in-fact, is the sole determinant as to whether the county clerk's office and the State Registrar must accept the power of attorney and allow the military member to get married.

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0003476

 CONSENT  

Bill No: AB 2128

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 6/14/16

AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski

ASSEMBLY FLOOR: 76-0, 5/2/16 - See last page for vote

SUBJECT:

SOURCE: California Association of Clerks and Election Officials

DIGEST: This bill provides that the completion of the power of attorney is the sole determinant as to whether the county clerk’s office or State Registrar may accept the power of attorney.

ANALYSIS:

Existing law:

1. Specifies that 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. (Fam. Code Sec. 420)
2. Provides that, notwithstanding the provision above, 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, if the following requirements are met:

• the attorney in fact must personally appear at the county clerk’s office with the party who is not stationed overseas;
• the attorney in fact must 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; and
• 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.

1. Provides that the original power of attorney shall be a part of the marriage certificate upon registration.

This bill additionally provides that the completion of a power of attorney shall be the sole determinant as to whether the county clerk’s office and the State Registrar will accept the power of attorney. 

Background

To prevent fraud, California has historically had a prohibition on “marriages by proxy,” or, marriages where one party is not present at the required solemnization and is instead represented by an attorney in fact. After extended periods of deployment of U.S. Forces in Iraq and Afghanistan in the early 2000s, the Legislature enacted SB 7 (Brulte and Burton, Chapter 476, Statutes of 2004) which allowed members of the armed forces to marry by proxy if they were serving in a conflict or war. That bill was “designed to help those serving our country in times of crises marry and provide needed benefits and recognition to their loved ones.” (Assembly Committee on Judiciary, Analysis of SB 7 (2003-04 Reg. Sess.) as amended Aug. 12, 2004.)

This bill, seeking to ensure members of the Armed Forces are able to exercise this privilege, clarifies the county clerk’s and State Registrar’s role in evaluating an applicant’s request to marry by proxy.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/17/16)

California Association of Clerks and Election Officials (source)

AMVETS-Department of California

California Association of County Veterans Service Officers

Military Officers Association of America, California Council of Chapters

VFW-Department of California

Vietnam Veterans of America-California State Council

OPPOSITION: (Verified 6/17/16)

None received

ARGUMENTS IN SUPPORT: In support, the California Association of Clerks and Election Officials write:

The issue addressed by AB 2128 is related to years of uncertainty on the part of the county clerk to determine, with certainty, whether locations around the world qualify as “areas of conflict or war.” Counties have been receiving queries regarding specific locations and have not been able to locate a resource or method to deliver a definitive answer to their customers as to whether they can use this process.

This bill will amend the Code to clarify that the completion of the power of attorney shall be the sole determinant as to whether the county clerk’s office and the State Registrar will accept the power of attorney. This language would bring certainty to this special privilege and remove the concern that a marriage license may be rejected later in the process; leaving the applicant with minimal recourse.

ASSEMBLY FLOOR: 76-0, 5/2/16

AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Wood, Rendon

NO VOTE RECORDED: Beth Gaines, Roger Hernández, Ridley-Thomas, Williams

Prepared by: Nichole Rapier / JUD. / (916) 651-4113

6/17/16 15:03:42

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: AB 2128 (Author:Achadjian)

Version: April 11, 2016

Hearing Date:

Fiscal: No

Urgency: No

Consultant: NR

SUBJECT

Marriage

DESCRIPTION

Existing law allows 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 a marriage, to 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, as specified.

This bill would provide that the completion of the power of attorney is the sole determinant as to whether the county clerk’s office or State Registrar may accept the power of attorney.

BACKGROUND

To prevent fraud, California has historically had a prohibition on “marriages by proxy,” or, marriages where one party is not present at the required solemnization and is instead represented by an attorney in fact. After extended periods of deployment of U.S. Forces in Iraq and Afghanistan in the early 2000s, the Legislature enacted SB 7 (Brulte and Burton, Ch. 476, Stats. 2004) which allowed members of the armed forces to marry by proxy if they were serving in a conflict or war. That bill was “designed to help those serving our country in times of crises marry and provide needed benefits and recognition to their loved ones.” (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 7 (2003-2004 Reg. Sess.) as amended Aug. 12, 2004.)

This bill, seeking to ensure members of the Armed Forces are able to exercise this privilege, would clarify the county clerk’s and State Registrar’s role in evaluating an applicant’s request to marry by proxy.

CHANGES TO EXISTING LAW

Existing law specifies that 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. (Fam. Code Sec. 420)

Existing law provides that, notwithstanding the provision above, 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, if the following requirements are met:

• the attorney in fact must personally appear at the county clerk’s office with the party who is not stationed overseas;
• the attorney in fact must 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; and
• 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.

Existing law provides that the original power of attorney shall be a part of the marriage certificate upon registration.

This bill would additionally provide that the completion of a power of attorney shall be the sole determinant as to whether the county clerk’s office and the State Registrar will accept the power of attorney. 

COMMENT

1. Stated need for the bill

According to the author:

When SB 7 was passed in 2004, it didn’t define “area of conflict or war,” therefore, marriage licenses that were issued by county clerks have been rejected by the State Registrar since they deemed some military bases overseas as not in an area of conflict or war. […] This bill would ensure that the completion of the power attorney by the Service Member is the sole determinant as to whether the county clerk and State Registrar accept the marriage.

1. Determining “conflict zones”

When considering SB 7 (Brulte and Burton, Ch. 476, Stats. 2004), the Legislature heard from a woman whose fiancé was stationed in Iraq. The couple was expecting their first child the next month, but under then-existing law, had no way to get married prior to the birth of their child. The passage of SB 7 helped ensure that prenatal and birth costs were covered and that both the mother and the baby received appropriate benefits should anything have happened to her fiancé in Iraq. Without that bill, they, and many couples in similar circumstances, may not have been entitled to receive such benefits.

SB 7, which limited the availability of marriage by proxy to members of the armed forces serving overseas in a conflict or war, included a number of other safeguards to protect against abuse of the process, including that the power of attorney: (1) must be signed by a notary or witnessed by two officers of the United States Armed Forces; (2) is limited to the purpose of obtaining a marriage license and participating in the solemnization of the marriage; and (3) shall be part of the marriage certificate.

The sponsor argues that some county clerks and state officials, despite the safeguards required for the signing of a power of attorney, have questioned whether an applicant is actually serving in a conflict zone or a war, and have rejected some requests to marry by proxy or have later rejected marriage licenses. Arguably, a member of the Armed Forces stationed overseas is in a better position than a county clerk or employee of the State Registrar to determine whether he or she is serving in a conflict or a war. Accordingly, this bill would clarify that the role of the county or state in approving a request for a marriage by proxy is to determine whether a power of attorney has been properly executed by the applicant.

In support, the California Association of Clerks and Election Officials write:

The issue addressed by AB 2128 is related to years of uncertainty on the part of the county clerk to determine, with certainty, whether locations around the world qualify as “areas of conflict or war.” Counties have been receiving queries regarding specific locations and have not been able to locate a resource or method to deliver a definitive answer to their customers as to whether they can use this process.

This bill will amend the Code to clarify that the completion of the power of attorney shall be the sole determinant as to whether the county clerk’s office and the State Registrar will accept the power of attorney. This language would bring certainty to this special privilege and remove the concern that a marriage license may be rejected later in the process; leaving the applicant with minimal recourse.

Support: AMVETS-Department of California; California Association of County Veterans Service Officers; Military Officers Association of America, California Council of Chapters; VFW-Department of California; Vietnam Veterans of America-California State Council

Opposition: None Known

HISTORY

Source: California Association of Clerks and Elections Officials

Related Pending Legislation: None Known

Prior Legislation: SB 7 (Brulte and Burton, Chap. 476, Stats. 2004), see Background.

Prior Vote:

Assembly Floor (Ayes 76, Noes 0)

Assembly Veterans Affairs Committee (Ayes 9, Noes 0)

Assembly Judiciary Committee (Ayes 10, Noes 0)

**************

ASSEMBLY THIRD READING

ATR Bill Id:AB 2128

Author:(Achadjian)

As Amended Ver:April 11, 2016

Majority vote

SUMMARY: Limits the power of a county clerk or the State Register to reject a power of attorney from a member of the Armed Forces stationed overseas and seeking to marry "by proxy." Specifically, this bill provides that proper completion of a power of attorney by a member of the armed forces, stationed overseas, serving in a conflict or a war and seeking to marry through an attorney-in-fact, is the sole determinant as to whether the county clerk's office and the State Registrar must accept the power of attorney and allow the military member to get married.

EXISTING LAW allows a member of the United States armed forces who is stationed overseas and serving in a conflict or a war and is unable to appear for licensure and solemnization of his or her marriage to 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. (Family Code Section 420.)

FISCAL EFFECT: None

COMMENTS: To prevent fraud, California has historically had a prohibition on "marriages by proxy," that is, marriages where one of the parties is not present at the required solemnization and is instead represented by an attorney-in-fact. In 2004, when the wars in Afghanistan and Iraq were raging, reservists were being called up for extended service with little warning. Based on the needs of the conflict, some ended up serving overseas for a year or longer, potentially wreaking havoc in the lives of their loved ones left behind.

It was against that backdrop, the Legislature passed SB 7 (Brulte), Chapter 476, Statutes of 2004, which established a process for marriage by proxy for those members of the armed forces who are serving overseas in a conflict or war zone. When considering the bill, the Legislature heard from Theresa Arnold. Her fiancé Marine Corps Lieutenant Thomas Cogan IV was stationed in Iraq. Theresa and Thomas are expecting their first child the next month, but under then-existing law, they have no way to get married prior to the birth of their child. Allowing marriage by proxy for members of the armed forces serving in a conflict or war overseas has helped ensure that military members' loved ones, including spouses and children, receive critical health and other benefits. In the case of Theresa Arnold and Thomas Cogan, their immediate marriage helped ensure that prenatal and birth costs were covered and that both Theresa and the baby received appropriate benefits should anything have happened to Lieutenant Cogan while in Iraq. Without that bill, they may not have been entitled to receive such benefits, whether in a timely manner or at all.

California is now one of only a handful of states, including Texas and Colorado, that permit marriage by proxy. Montana allows a "double proxy marriage" in which neither party must be present in the state in order to legally marry, provided at least one party is either a resident of Montana or a member of the military.

The current problem, according to the sponsor, the California Association of Clerks and Elections Officials, is that a small number of county clerks and state officials have questioned whether some of the overseas military members seeking to marry by proxy are actually in war or conflict zones and have, as a result, rejected some requests to marry by proxy or later rejected marriage licenses. Given the international nature of today's evolving threat of terrorism, it may not be clear to a county clerk or an official with the State Registrar where conflict zones are. Thus, it appears best to accept a military member's signed declaration, which as stated on the required form must be done under penalty of perjury, that he or she is serving in war or conflict zone. This bill does just that by providing that proper completion of a power of attorney by a member of the armed forces, stationed overseas and serving in a conflict or a war and seeking to marry through an attorney-in-fact, is the sole determinant as to whether the county clerk's office and the State Registrar must accept the power of attorney and allow the military member to get married.

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0002829

Date of Hearing: April 26, 2016

ASSEMBLY COMMITTEE ON VETERANS AFFAIRS

Jacqui Irwin, Chair

ABPCA Bill Id:AB 2128 (

Author:Achadjian) – As Amended Ver:April 11, 2016

SUBJECT: Marriage

SUMMARY: Limits the power of a county clerk or the State Register to reject a power of attorney from a member of the Armed Forces stationed overseas and seeking to marry "by proxy." Specifically, this bill provides that proper completion of a power of attorney by a member of the armed forces, stationed overseas, serving in a conflict or a war and seeking to marry through an attorney-in-fact, is the sole determinant as to whether the county clerk's office and the State Registrar must accept the power of attorney and allow the military member to get married.

EXISTING LAW: Allows a member of the United States armed forces who is stationed overseas and serving in a conflict or a war and is unable to appear for licensure and solemnization of his or her marriage to 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. (Family Code Section 420.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: As stated by the Committee on Judiciary which heard this bill prior to its referral to this Committee:

California is now one of only a handful of states, including Texas and Colorado, that permit marriage by proxy [marriage where one or both parties is not physically present]. Montana allows a "double proxy marriage" in which neither party must be present in the state in order to legally marry, provided at least one party is either a resident of Montana or a member of the military.

The current problem, according to the sponsor, the California Association of Clerks and Elections Officials, is that a small number of county clerks and state officials have questioned whether some of the overseas military members seeking to marry by proxy are actually in war or conflict zones and have, as a result, rejected some requests to marry by proxy or later rejected marriage licenses. Given the international nature of today's evolving threat of terrorism, it may not be clear to a county clerk or an official with the State Registrar where conflict zones are. Thus, it appears best to accept a military member's signed declaration, which as stated on the required form must be done under penalty of perjury, that he or she is serving in war or conflict zone. This bill does just that by providing that proper completion of a power of attorney by a member of the armed forces, stationed overseas and serving in a conflict or a war and seeking to marry through an attorney-in-fact, is the sole determinant as to whether the county clerk's office and the State Registrar must accept the power of attorney and allow the military member to get married.

In most instances, California law and that of most states does not allow proxy marriage because the legal and other implications of marriage are so great that we want parties to a marriage to be physically present. We would rather the parties incur some inconvenience or delay rather than risk, even if the possibility is remote, that one party might be married without knowledge or consent.

According to the Committee on Judiciary, the very limited marriage by proxy exception in California which is at issue with this bill was presented by a couple, one of whom was deployed to Iraq in 2004 and, in the context of that conflict actually or quite likely to be in harm’s way. In such a circumstance, where a partner faces potential danger during deployment to a combat area, the concern is that there may imminently be incapacitation or loss of life which would prevent the parties from marrying later.

Though accidents and serious injury are always possible, the possibility of such an eventuality in a combat zone or conflict is real and not speculative. Many veterans benefits and other important rights, privileges and benefits may not arise or pass to the unmarried partner (or children of the unmarried partners) at home should the deployed partner be injured or killed. Therefore it has been the policy of this state to allow marriage by proxy in this limited situation, to prevent the potential loss to the non-deployed partner and children.

According to the author:

In 2004, the Legislature overwhelmingly passed SB 7, which allowed members of the Armed Forces to participate in a “marriage by proxy” so that if they were unable to attend their marriage ceremony, they would still be able to get married. Unfortunately, since then, numerous marriage certificates have been denied because the California Department of Public Health has deemed the person wasn’t stationed in an area of conflict or war. However, areas of war or conflict are difficult to determine because it is undefined and those areas are ever-changing. AB 2128 states that the completion of the power of attorney is the sole determinant as to whether the county clerk’s office and the State Registrar will accept the power of attorney. This will ensure that the marriage certificate is honored and that the county clerks and the State Registrar are not forced to determine whether or not the service member is stationed in an area of war or conflict.

The problem presented by the sponsor of the bill is really one of implementation, as pointed out by the author. The nature of modern war, conflict, and the diverse spectrum of modern military operations renders it unreasonable to place the burden of determining compliance with the statute on the county clerk insofar as it pertains to deployment in a war or conflict.

REGISTERED SUPPORT / OPPOSITION:

Support

AMVETS, Department of California

California Association of Clerks and Election Officials

California Association of County Veterans Service Officers

Military Officers Association of America, California Council of Chapters

Veterans of Foreign Wars, Department of California

Vietnam Veterans of America, California State Council

Opposition

None on File.

Analysis Prepared by: John Spangler / V.A. / (916) 319-3550

Date of Hearing:

ASSEMBLY COMMITTEE ON

, Chair

ABPCA Bill Id:

Author:() – As Ver:

PROPOSED CONSENT

SUBJECT: MARRIAGE SOLEMNIZATION: ARMED FORCES

KEY ISSUE: SHOULD MEMBERS OF THE ARMED FORCES WHO ARE STATIONED OVERSEAS AND SERVING IN CONFLICT OR WAR ZONES AND THEREFORE ELIGIBLE UNDER CURRENT LAW TO MARRY IN CALIFORNIA THROUGH THE USE OF AN ATTORNEY-IN-FACT, BE ALLOWED TO DO SO BY DECLARING UNDER PENALTY OF PERJURY THAT THEY MEET THE STATUTORY REQUIREMENTS?

SYNOPSIS

To prevent fraud, California has historically had a prohibition on marriages by proxy, that is, marriages where one of the parties is not present at the required solemnization and is instead represented by an attorney-in-fact. In 2004, when the wars in Afghanistan and Iraq were raging and reservists were being called up for extended service with little warning, the Legislature passed SB 7 (Brulte and Burton), Chap. 476, Stats. 2004, which established a process for marriage by proxy for members of the armed forces who are serving overseas in conflict or war zones.

The current problem, according to the sponsor, the California Association of Clerks and Elections Officials, is that a small number of county clerks and state officials have questioned whether some of the overseas military members seeking to marry by proxy are actually in war or conflict zones and have, as a result, rejected some requests to marry by proxy or later rejected marriage license applications. Given the international nature of today's evolving threat of terrorism, it may not be clear to a county clerk or an official with the State Registrar where conflict and war zones are located. Thus, it appears best to accept a military member's signed declaration, which as stated on the required form must be done under penalty of perjury, that he or she is serving in war or conflict zone. This bill seeks to do just that by providing that proper completion of a power of attorney by a member of the armed forces, stationed overseas and serving in a conflict or a war zone and seeking to marry through an attorney-in-fact, is the sole determinant as to whether the county clerk's office and the State Registrar must accept the power of attorney and allow the military member to get married. This bill is supported by veterans' organizations and has no known opposition.

SUMMARY: Limits the power of a county clerk or the State Register to reject a power of attorney from a member of the Armed Forces stationed overseas and seeking to marry "by proxy." Specifically, this bill provides that proper completion of a power of attorney by a member of the armed forces, stationed overseas, serving in a conflict or a war and seeking to marry through an attorney-in-fact, is the sole determinant as to whether the county clerk's office and the State Registrar must accept the power of attorney and allow the military member to get married.

EXISTING LAW allows a member of the United States armed forces who is stationed overseas and serving in a conflict or a war and is unable to appear for licensure and solemnization of his or her marriage to 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. (Family Code Section 420.)

FISCAL EFFECT: As currently in print this bill keyed non-fiscal.

COMMENTS: To prevent fraud, California has historically had a prohibition on "marriages by proxy," that is, marriages where one of the parties is not present at the required solemnization and is instead represented by an attorney-in-fact. In 2004, when the wars in Afghanistan and Iraq were raging, reservists were being called up for extended service with little warning. Based on the needs of the conflict, some ended up serving overseas for a year or longer, potentially wrecking havoc in the lives of their loved ones left behind.

It was against that backdrop, the Legislature passed SB 7 (Brulte and Burton), Chap. 476, Stats. 2004, which established a process for marriage by proxy for those members of the armed forces who are serving overseas in a conflict or war zone. When considering the bill, the Legislature heard from Theresa Arnold. Her fiancé Marine Corps Lieutenant Thomas Cogan IV was stationed in Iraq. Theresa and Thomas are expecting their first child the next month, but under then-existing law, they have no way to get married prior to the birth of their child. Allowing marriage by proxy for members of the armed forces serving in a conflict or war overseas has helped ensure that military members’ loved ones, including spouses and children, receive critical health and other benefits. In the case of Theresa Arnold and Thomas Cogan, their immediate marriage helped ensure that prenatal and birth costs were covered and that both Theresa and the baby received appropriate benefits should anything have happened to Lieutenant Cogan while in Iraq. Without that bill, they may not have been entitled to receive such benefits, whether in a timely manner or at all.

California is now one of only a handful of states, including Texas and Colorado, that permit marriage by proxy. Montana allows a "double proxy marriage" in which neither party must be present in the state in order to legally marry, provided at least one party is either a resident of Montana or a member of the military.

The current problem, according to the sponsor, the California Association of Clerks and Elections Officials, is that a small number of county clerks and state officials have questioned whether some of the overseas military members seeking to marry by proxy are actually in war or conflict zones and have, as a result, rejected some requests to marry by proxy or later rejected marriage licenses. Given the international nature of today's evolving threat of terrorism, it may not be clear to a county clerk or an official with the State Registrar where conflict zones are. Thus, it appears best to accept a military member's signed declaration, which as stated on the required form must be done under penalty of perjury, that he or she is serving in war or conflict zone. This bill does just that by providing that proper completion of a power of attorney by a member of the armed forces, stationed overseas and serving in a conflict or a war and seeking to marry through an attorney-in-fact, is the sole determinant as to whether the county clerk's office and the State Registrar must accept the power of attorney and allow the military member to get married.

In support of the bill, the author writes:

In 2004, the Legislature overwhelmingly passed SB 7, which allowed members of the Armed Forces to participate in a “marriage by proxy” so that if they were unable to attend their marriage ceremony, they would still be able to get married.  Unfortunately, since then, numerous marriage certificates have been denied because the California Department of Public Health has deemed the person wasn’t stationed in an area of conflict or war.  However, areas of war or conflict are difficult to determine because it is undefined and those areas are ever-changing.  AB 2128 states that the completion of the power of attorney is the sole determinant as to whether the county clerk’s office and the State Registrar will accept the power of attorney.  This will ensure that the marriage certificate is honored and that the county clerks and the State Registrar are not forced to determine whether or not the service member is stationed in an area of war or conflict.

REGISTERED SUPPORT / OPPOSITION:

Support

California Association of Clerks and Elections Officials (sponsor)

AMVETS-Department of California

California Association of County Veterans Service Officers

Military Officers Association of America, California Council of Chapters

VFW-Department of California

Vietnam Veterans of America-California State Council

Opposition

None on file

Analysis Prepared by: