Bigamous Marriage May be Valid in Another Country but still void in California

California allows parties in family law to argue –instead of doing through a divorce—that their marriage was never valid in the first place or is at least voidable by one who wishes the marriage not to be recognized.  Not only are there grounds for allowing a marriage to be voidable, but there are some structural problems that make the marriage downright void regardless of whether one so called “spouse” is willing to waive the defect.  One such structural problem is bigamy – getting married to spouse no. 2 while you’re still married to spouse no. 1.

This happened recently in aa 28-page decision, which was decided last week by the California Court of Appeal.  A panel of three justices concluded that two judges in the trial court were correct. In Marriage of Elali & Marchaud (2022) 79 Cal.App.5th 668, the first judge made a preliminary finding that the marriage to spouse no. 2 was a valid marriage, even though Elali was still married to spouse no. 1 at the time of matrimony.  This is because the spouse no. 2’s marriage took place in Lebanon, and under the laws of that country, a bigamous marriage was apparently not a problem.  Indeed, the law in California is that a marriage is valid if it is valid under the laws of the jurisdiction where the marriage took place.

After the first judge had to move on to a different assignment, the second judge said the valid marriage was also a void marriage and therefore none of the issues that often go along with a divorce – such as spousal support or property division—could be addressed.  In reaching this conclusion, the second judge relied on Family Code section 2201, subd. (a) to rule against the spouse no. 2.  In the words of the second judge, “[O]nce I decide it void, the law is if either party had a good faith belief in the validity of the marriage, then I could declare that person a putative spouse”.  Family Code section 2251 allows for this possibility.  But ultimately, the judge found that spouse no. 2 was not a putative spouse because she did not have a good faith believe that the marriage to Elali was valid under California law.

Spouse no. 2 was not too happy about this decision, and she claimed that the decision of the first judge prevented the second judge from ruling the marriage was void.  But the appeals court found the decisions not to be inconsistent or incompatible with each other.  Rather, the justices said that although the Lebanese marriage was valid under Lebanese law, there are some things—like bigamy—that just will not fly even here in California.  Bigamy, which is covered by the criminal law, is one of them.  On the other hand, the justices explained, a valid though bigamous marriage could be given in effect if the issue only involved the right to inherit property.

So, there you have it.  Two marriages, two judges, and three justices who said the two judges were both right.  The Elali case was ordered by the Court of Appeal to be published.  This means it can be cited as precedent by lawyers and judges in all the courts of California.  The unanimous decision was written by Justice Carol D. Codrington.