What is Putative Marriage? / by Cassandra Hearn

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When a marriage ends, classification of assets and debts becomes a central issue. In some rare circumstances, classification of the marriage may also become crucial. While most marriages are valid and legal, there are some situations wherein the marriage is void or voidable. These marriages are those that may include problems of bigamy, incapacity, or fraud. When a marriage is declared void, it legally becomes as though the marriage never existed. The potential ramifications can be enormous, especially when the parties have accrued substantial assets. In a divorce, marital property is equally divided. However, if the marriage never legally existed, there is no marital property, and therefore no property division can take place. An important exception exists in the idea of putative marriage.

Putative marriage may be determined to exist by a court when a marriage has been invalidated, but one party had a good faith belief that the marriage was valid. If the court determines that one spouse had a good faith belief that the marriage was, in fact, valid, then that spouse will be declared a putative spouse. California Family Code 2551  also states that in the event this occurs, the court will declare any property acquired by the parties during the union to be “quasi-community property,” and will divide this property as if the parties had been married. This also has other implications. For example, a person applying for death benefits in a workers’ compensation suit could use the putative spouse theory to demonstrate that he or she is eligible for death benefits even though the marriage between the putative spouse and the decedent may not have been valid.

In determining whether the person claiming to be a putative spouse had a good faith belief that the parties’ marriage was valid, the court will apply a subjective person standard. The California Supreme Court discussed this subjective person test in a case styled Ceja v. Rudolph & Slettin, Inc. The Supreme Court stated that the California code contemplates this subjective standard that focuses on the state of mind of the person claiming putative spouse status, as opposed to the “reasonable person” standard.

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