California Family Code § 308: Recognition of Out-of-State Marriages

Plain-Language Summary

California Family Code § 308 is a rule that tells us when California will recognize marriages that happen outside of California. In simple terms, if you get married in another state or another country, and that marriage is legal and valid in that place, then California will also consider you legally married. This applies to all kinds of valid marriages from elsewhere – whether it’s a traditional ceremony in another country or even a common-law marriage in a state that allows couples to be married without a ceremony. Essentially, California honors the marriage laws of the place where the wedding took place, so long as the marriage was valid under those laws.

There are some important caveats. California will not recognize an out-of-state marriage if it violates a strong public policy here. For example, a marriage involving bigamy (one person already has a spouse) or an incestuous marriage (close relatives) won’t be recognized in California, even if it was allowed somewhere else. But aside from such exceptions, the general rule is that a marriage valid where it was celebrated will be treated as a valid marriage in California. This principle ensures that couples don’t lose their marital status or rights just because they cross into California.

It’s also worth noting that California’s approach has evolved over time for certain types of marriages. For instance, at one point California law (former Family Code § 308.5) refused to recognize same-sex marriages from other jurisdictions, but that is no longer the case. Today, California fully recognizes same-sex marriages performed out-of-state just as it would any other marriage, thanks to changes in state law and court decisions. In summary, Family Code § 308 makes California a “marriage-friendly” state for lawful marriages established elsewhere, guaranteeing that those marriages carry the same legal weight as California marriages.

Real-World Examples

Destination Wedding: Jack and Jill live in California but decide to get married in Hawaii. Their Hawaiian marriage follows all the legal requirements in Hawaii, so it’s completely valid there. When they come back home to California, Family Code § 308 means their marriage is automatically recognized here as well. They don’t need to “re-marry” in California – California treats them as a legally married couple because their Hawaii wedding was valid under Hawaiian law.
Common-Law Marriage from Another State: Maria and Tom lived together in Texas for many years and presented themselves as spouses, which is enough to form a common-law marriage under Texas law. Even though California itself doesn’t allow common-law marriages to start here, California will acknowledge Maria and Tom as married because their informal marriage is considered valid in Texas. If they move to California, they have all the same rights and obligations as any married couple (and would need to go through a normal divorce in California if they split up) thanks to § 308.
Marriage with a Public Policy Violation: John is already married to Alice in California, but he goes to another country and goes through a marriage ceremony with another partner, Jane, where polygamy is legal. Even if John’s second marriage to Jane is considered valid in that other country, California will not recognize it. Because California law forbids having more than one spouse at a time (bigamy), the second marriage is void here. Family Code § 308 does **not** force California to recognize marriages that violate fundamental California laws, so Jane would not be considered John’s wife in California.

Published Case Law on § 308

Colbert v. Colbert (1946) 28 Cal.2d 276: In this California Supreme Court case, the court dealt with a couple who had entered into a common-law marriage in Texas (which at the time recognized common-law marriages). The wife, Mrs. Colbert, claimed she was married in Texas without a formal ceremony, and she sought a divorce and support in California. The husband argued they weren’t really married because California doesn’t allow common-law marriage. The Supreme Court sided with the wife, explaining that under the predecessor of § 308, a marriage valid in the state where it was formed (Texas) must be recognized as valid in California. In plain language, even though California wouldn’t itself create a marriage without a ceremony, it honored the Texas common-law marriage – meaning the Colberts were considered legally married in California and had to go through a formal divorce to end the relationship.
In re Marriage of Smyklo (1986) 180 Cal.App.3d 1095: This case from the California Court of Appeal also involved a common-law marriage, but the couple’s informal marriage was formed in Alabama. Alabama recognized their relationship as a valid marriage (even without a license or ceremony), so when the couple later found themselves in California’s courts (in a divorce proceeding), the question was whether California would treat them as married. The court applied Family Code § 308’s principle and concluded that yes, it would. The Smyklo decision confirmed that California must acknowledge a marriage that was legally established in another jurisdiction. In short, the couple’s Alabama common-law marriage was deemed valid in California, so they had to go through the California divorce process to legally end their marriage.
Rosales v. Battle (2003) 113 Cal.App.4th 1178: In this Court of Appeal case, the issue was whether a woman could sue for wrongful death as the “surviving spouse” of a man she lived with in Mexico. The couple had lived together and even had children, and a Mexican court had acknowledged her as the man’s “concubine” (a status somewhat similar to an unmarried partner). However, they never had a civil marriage ceremony, which is required to be legally married under Mexican law. The California court turned to Family Code § 308 and reasoned that it must look at Mexican law to see if the two were legally married in Mexico. Because they did not fulfill Mexico’s legal requirements for marriage, their union wasn’t a valid marriage in Mexico – it was just a non-marital cohabitation. Therefore, California did not recognize them as a married couple. The court concluded that Ms. Rosales was not a “surviving spouse” under California law, illustrating that § 308 will recognize foreign marriages only if the couple actually complied with the marriage laws of that foreign jurisdiction.

Full Text of California Family Code § 308

A marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in California.

*Nothing on this page should be considered legal advice. This is simply a summary of information found on the Internet. Use at your own risk. This information has not been evaluated by an attorney, and it may be incorrect or obsolete due to changes in the law.*