How well do you know your spouse or significant other?  Have they been married before?  Are they still married and you don’t even know it?  Does the State of California allow this type of deception?

No, this isn’t the beginning of a treatment for a screenplay I am selling around town.  This is real and when I tell this story to friends and family, they simply don’t believe me when I tell them the truth:  your wife could be married to someone else and not only might you never know, even if you wanted to find out, you likely wouldn’t be able to.

It’s called a “confidential marriage” and is exactly what it sounds like.  It is a marriage that the state will keep confidential, so that a search of public records would not result in its discovery.  What possible good can come of this, you might ask?

Well, it appears that the idea of a confidential marriage came from a good place of protection; to protect children born from long-term, though unmarried, couples from the stigma of being “out-of-wedlock” children.  It also was designed to address the issue of common law marriage, which is non-existent in California.  According to the California Family Code, when an unmarried woman and man, not minors, have been living together as husband and wife, they can have their marriage solemnized and a marriage performed, with the marriage license recorded though kept confidential by the county recorder.  Thus, if the world at large already believes that you are married, you can have the service performed and no one needs to know when the marriage actually took place… because the marriage license is only obtainable by either of the parties to the marriage or pursuant to a court order.

What could possibly go wrong?

Well, for one thing, if you wanted to do some background on your soon-to-be husband, you would never know if he was already married.  And we all know that bigamy is against the law.  So if your husband was already married, guess what?  Your marriage is against the law!

It sounds like it would never happen right?  Couldn’t be possible… and you would, unfortunately be wrong.

Consider these facts:

A man marries a woman by a confidential marriage, then a mere two months later, marries another woman in a public marriage, what we would think of as more traditional.  Even though husband lives with wife number two, his marriage to wife number one is never dissolved, nullified, or legally terminated and so, when husband dies, both women lay claim to his assets.  And who wins?

Interestingly enough, the answer is, in most circumstances, both of them.  You see, wife number two cannot prove that the confidential marriage was dissolved or annulled or legally terminated in any way, so her marriage is determined to be a bigamous marriage and thus illegal and invalid. 

However, don’t feel too bad for wife number two—the law does provide for her to be deemed a “putative spouse” meaning that if she can show that she had a good faith belief in the validity of her marriage, she won’t go away empty handed.

Look, it’s one thing for spouses to have affairs and engage in other extra-curricular activities while married; but what if those were not with a girlfriend or boyfriend, but another husband or wife?  You would never know about it and, more astonishingly, you would never be able to find out about it for yourself because the vast majority of case law on the subject addresses situations in which the discovery of the second marriage occurs after the death of the bigamous spouse.  Yep, when the spouse dies, that’s when the “other” spouse comes of the woodwork and lays claim to assets.

And the state of California allows this to happen.  The confidential marriage is just as legal and valid and provides the same rights to the spouses as a fully public marriage. 

Would you believe I have two cases going on right now involving confidential marriages??  Crap, maybe it is more popular than I thought.  Perhaps I need to depose my wife…

In the practice of law, you find all kinds of weird laws—I call them “hiccups” as in when the law was being written someone hiccupped and forgot what they really intended…

It certainly is amazing, don’t you think?