A NEW USE FOR CONFIDENTIAL MARRIAGE: ELDER ABUSE

By Ellen McKissock, Esq.^*

When the California State Legislature chose not to recognize common law marriages over a century ago, it made sense to allow a couple living together to legalize their relationship through the "confidential marriage." Today, however, the confidential marriage process allowed by Family Code section 500 seems more a fertile field for elder abuse or evading the law than a mechanism to shield families from the humiliation of a public marriage after years of cohabitation.

I. WHAT IS A CONFIDENTIAL MARRIAGE?

In 1850, the California Legislature enacted the first Act Regulating Marriages. By 1862, amendments to that statute required marrying couples to obtain a marriage license. The Legislature added statutes the following year allowing persons who had been living together as husband and wife to marry without a license. In 1872, California statutes were organized into four codes of general laws, among them the Civil Code, which contained section 55, the precursor to current Family Code section 300 that governs the typical public marriage.¹ Six years later, the Legislature added Civil Code section 79, which continued the statutes involving confidential marriage, and is the precursor to Family Code section 500 governing today’s confidential marriages. Civil Code section 79 provided: