Same Sex Couples: Marriage, Families, and Children

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Same Sex Couples: Marriage, Families, and Children

In deciding who should be entitled to marry or have their marriages recognized, it is useful to consider current law regulating who may marry. Under California law:

Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary....16

No particular form for the ceremony of marriage is required ... but the parties shall declare, in the presence of the person solemnizing the marriage and necessary witnesses, that they take each other as husband or wife.17

Thus, a man and a woman can legally marry if they receive a marriage license and go through a ceremony, presided over by a duly authorized official, at which each of them says that they take the other person to be their spouse. Nothing more is needed. The couple need not live together, sleep together, have children, or do anything jointly. Unless one of them takes an action to dissolve the marriage, or dies, they will remain husband and wife.

California law views marriage as a personal choice, belonging to the couple. The opportunity to marry is available to all people whom the state does not consider clearly unable to perform the functions that it is hoped that marriage will entail, even though it is recognized that many couples will not adequately perform these functions.

Thus, the only legal requirements for receiving a marriage license are that the applicants be a man and a woman, generally they must be over 18 years of age, they may not be closely related by blood, and they must not be already married.18 The age restrictions are designed to limit marriage to persons capable of understanding the obligations that are incurred by marrying. Rules barring marriage between closely related individuals reflect a desire to prevent abuses of power within family relationships; there is also a concern, perhaps not valid, that such unions...
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