The Confidential Marriage

          The elderly
and sick people who live alone and are isolated are unfortunate targets for
predators who befriend them, become caregivers, and insinuate themselves into
the elderly person’s estate.  Accordingly,
California law presumes that certain gifts by elderly persons — 65 and over —
to their unrelated caregivers, are the result of fraud, undue influence, menace
and/or coercion, and thus void.  There
are important exceptions.  One exception
is for spouses.  Let us examine how confidential
marriages – which do not require any witnesses and do not become part of the public
record – can be abused by predators.

          To
begin with, why are Confidential Marriages even allowed in California? 

          California’s
Confidential Marriage law originates in 1878 when the state allowed clergymen
to marry couples who had been living together outside of marriage.  In 1972, California State expanded the types
of persons who could marry such couples.
Even a California Notary Public, with special authorization, can issue a
confidential license agreement, perform the wedding ceremony, and file the
signed license with the county clerk. 

          Unlike
a regular marriage certificate, a confidential marriage certificate is not a
public record for anyone to see.  The
confidential marriage license is only filed with the county where the license is
issued and a certificate of marriage can only be obtained by either spouse.  A court order is required for anyone else to
obtain a copy of the confidential marriage certificate. 

          Thus,
no one other than the couple involved and the person who performed the marriage
need ever know that the marriage even occurred, when it occurred, and where it
occurred.

          Why is
that important?  That is important
because if family of the elder abuse victim know while the victim is alive that
a marriage has taken place then they can go to court to contest the marriage
while the victim can still be questioned.
The longer the confidential marriage continues in secret the more of the
victim’s assets can be retitled away from the elder.

          Not
surprisingly the confidential marriage license is used by predators who do not
want anyone to know what they are up to.

          For
example, one unscrupulous estate planning attorney used the confidential
marriage license to marry his elderly client.
After her client/husband died, the attorney claimed that she was
entitled to a share of her late husband’s estate as an omitted spouse.  Fortunately, the deceased husband’s nieces flew
over from Norway and prevailed in court.

          Given
the confidential marriage’s susceptibility to abuse, is there any valid reason
for keeping it?

          Various
arguments can be made that confidential marriages are still relevant
today.  First, they help protect you
against modern day identity theft.  The
items of information that are obtainable from the public marriage certificates
are very useful to other types of predators who commit credit card fraud.  Second, some same sex couples wish to marry
but to keep their marriage confidential.
Third, similarly well-known celebrities may wish to marry in privacy,
which protects both spouses. 

          Given the harm that can be done by abusing
the confidential marriage it is apparent that safeguards need to be added to the use of confidential marriage.