Assembly Bill (AB) 2128 would amend existing law that allows a member of the Armed Force of the United States who is stationed overseas and serving in a conflict or a war and is unable to appear for the license and solemnization of the marriage to enter into that marriage by the appearance of an attorney in fact and provides that the completion of the power of attorney is the sole determinant as to whether the county clerk's office or State Registrar will accept the power of attorney.
Status: 04/19/2016 From ASSEMBLY Committee on JUDICIARY: Do pass to Committee on VETERANS AFFAIRS. (10-0)
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 attorneyin-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
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