Filed 9/24/13 Pickens v. Wilson CA4/1 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT 

DIVISION ONE 

STATE OF CALIFORNIA 

DESIREE PICKENS, 

 Appellant, 

 v. 

DARREN WILSON, 

 Respondent. 

 D062826 

 (Super. Ct. No. 37-2012-00150915- 

 PR-EB-CTL) 

 APPEAL from a judgment of the Superior Court of San Diego County, Julia Craig 

Kelety, Judge. Affirmed. 

 Fair Cadora and Lauren M. Fair for Appellant. 

 No appearance for Respondent. 

 Desiree Pickens appeals from a judgment denying her petition for a declaration of 

the invalidity of her marriage to Darren Wilson. She raises a variety of contentions to 

support her claim that her marriage should be deemed invalid. We agree with the trial 

court's ruling that the marriage was valid, and affirm. 
2 

FACTUAL AND PROCEDURAL BACKGROUND 

 Pickens and Wilson provided the following factual information to the trial court in 

support of Pickens's petition to declare the parties' marriage invalid.1 In August 1985 

Pickens and Wilson obtained a confidential marriage license from the Sacramento 

County Clerk. According to Pickens, they were not living together when they obtained 

the confidential license.2 Thereafter, a pastor performed their wedding ceremony at 

Pickens's church and endorsed the license. The pastor gave the endorsed license to 

Pickens and asked her to register it with the county. Pickens failed to do so. 

 In 1994, the parties separated. At the time of their separation, Pickens and Wilson 

were each told by separate legal counsel that they did not need to obtain a dissolution of 

the marriage because the marriage was never legally formed given that the paperwork 

was never filed with the county. Relying on this advice from counsel, neither party 

commenced a dissolution proceeding. 

 In 2009, Pickens married Frederick Pickens (Frederick). Thereafter, Pickens and 

Frederick were involved in a dissolution proceeding in Indiana. In 2012, during the 

pendency of that proceeding, Pickens filed the instant petition in San Diego superior 

court, requesting that the court declare her California marriage to Wilson invalid. Wilson 

 

1 Wilson did not object to Pickens's petition to declare their marriage invalid. 

Wilson is not participating in this appeal. 

2 To obtain a confidential (as opposed to a public) marriage license, the parties are 

required to be living together. 
3 

submitted a declaration stating he had no objection to an order finding they never had a 

legal marriage. 

 In support of her petition, Pickens argued a legal marriage was never formed 

because she failed to comply with the mandatory requirement that the marriage license be 

returned to the county for filing. Pickens acknowledged that there was a statute that 

preserved the validity of a marriage when a nonparty failed to comply with the statutory 

procedures. However, she contended her case was distinct because it also involved her 

own failure to comply with the statutory registration requirement. Alternatively, Pickens 

asserted the marriage was void from its inception because she and Wilson had not legally 

obtained the confidential license given that they had not been living together when they 

obtained the license. 

 Pickens also requested an order declaring the marriage invalid on equitable 

grounds, stating her current husband (Frederick) was "seeking to have her criminally 

prosecuted in Indiana for bigamy and deprive her of certain rights attaching to a 

marriage" in the Indiana dissolution proceedings. She cited the facts that she and Wilson 

had relied on the advice of counsel and believed in good faith the marriage was not valid, 

and Wilson did not object to an order finding the marriage invalid. She asserted she and 

Wilson would suffer no negative consequences if the marriage was declared invalid, and 
4 

equity supported an invalidation order "to avoid serious prejudice to [her] in Indiana."3 

 After a hearing on April 24, 2012, the trial court denied Pickens's petition. The 

court found the marriage was valid because a license was obtained; there was consent of 

the parties; a ceremony took place to solemnize the marriage; and the sole defect of 

failing to return the license for registration is specifically excused by statute. 

DISCUSSION 

 Pickens argues the trial court erred in denying her request for an order declaring 

her marriage to Wilson invalid because the relevant statute only excuses a nonparty's 

failure to comply with the statutory requirements, and in her case both a nonparty and a 

party failed to return the marriage license to the county for registration. She also raises 

several additional arguments which we shall delineate below. We first summarize the 

relevant law. 

Relevant Law 

 The Family Code specifies the procedures to be followed to create a legally valid 

 

3 Frederick (Pickens's Illinois husband) filed an objection to Pickens's petition to 

declare her California marriage invalid, and an attorney appeared at the hearing on 

Frederick's behalf. At the hearing, Frederick's attorney disputed Pickens's 

characterization of the Illinois proceedings, stating that Frederick was "not pursuing a 

prosecution in Indiana." The court questioned whether Frederick had standing to appear 

in the California proceedings, but concluded this issue did not need to be resolved for 

purposes of ruling on Pickens's petition to declare her California marriage invalid. 

Frederick has not attempted to participate in this appeal. 
5 

marriage in California.4 (See Estate of DePasse (2002) 97 Cal.App.4th 92, 99 

(DePasse), overruled on other grounds in Ceja v. Rudolph & Sletten, Inc. (2013) 56 

Cal.4th 1113, 1126.) We review the statutes de novo to determine whether Pickens's 

marriage to Wilson was legally valid. (DePasse, supra, at p. 99; Cantarella, supra, 191 

Cal.App.4th at p. 921.) 

 Section 300 provides that marriage requires (1) consent of the parties, (2) issuance 

of a license, and (3) solemnization. Section 300, subdivision (a) underscores that consent 

alone does not suffice; rather, consent "must be followed by the issuance of a license and 

solemnization . . . ."5

 

4 Unspecified statutory references are to the Family Code. 

 We note that when the parties were married in 1985, the family law provisions 

governing marriage were set forth in the Civil Code, not the Family Code. Effective 

January 1, 1994, the Family Code provisions were enacted to replace these Civil Code 

provisions. The portions of the Family Code relevant to this case are substantively 

essentially the same as the corresponding former Civil Code provisions, with some 

differences that do not affect resolution of the issues on appeal. (Cal. Law Revision 

Com. com., 29C West's Ann. Fam. Code (2004 ed.) foll. §§ 1, p. 2, 300, p. 169; see In re 

Marriage of Cantarella (2011) 191 Cal.App.4th 916, 919, fn. 1, 921-925 (Cantarella).) 

In the proceedings before the trial court and on appeal, Pickens references the current 

Family Code, not the former Civil Code. We do the same. 

5 Section 300 states: "(a) 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. Consent alone does not constitute marriage. Consent 

must be followed by the issuance of a license and solemnization as authorized by this 

division, except as provided by Section 425 and Part 4 (commencing with Section 500.) 

[¶] (b) For purposes of this part, the document issued by the county clerk is a marriage 

license until it is registered with the county recorder, at which time the license becomes a 

marriage certificate." 
6 

 The Family Code specifies the procedures to secure the license and accomplish the 

solemnization. Generally, the parties obtain the license from the county clerk; it may be 

either a public license (§ 350) or, if they have been living together as husband and wife, a 

confidential license (§§ 500, 501).6 The parties must present the marriage license to the 

person solemnizing the marriage. (§§ 359, subd. (c), 421, 506, subd. (a).) The code 

defines the persons who are authorized to solemnize a marriage (§§ 400-402), and states 

that solemnization occurs when the parties declare "in the physical presence of the person 

solemnizing the marriage and necessary witnesses, that they take each other as husband 

and wife" (§ 420, subd. (a)). 

 The Family Code also requires the person solemnizing the marriage (the officiate) 

to (1) authenticate the marriage license, and (2) return the authenticated license to the 

county so the marriage can be registered. The officiate is required to authenticate the 

license by ensuring that the required matters are inscribed on the license. (§§ 359, subd. 

(d), 422, 506, subd. (b); DePasse, supra, 97 Cal.App.4th at p. 101.) Thereafter, within a 

specified time period, the officiate must return the authenticated license either to the 

 

6 Unlike a public license, a confidential license, although filed with the county, is 

not available for public inspection. Without a court order, the county clerk may only 

confirm the existence of the marriage, but may not disclose the date of the marriage or 

any other information contained on the marriage certificate. (§ 511; Hogoboom & King, 

Cal. Practice Guide, Family Law (The Rutter Group 2013) § 19.13, p. 19-11.) 
7 

county recorder (for a public license), or to the county clerk (for a confidential license). 

(§§ 359, subd. (e), 423, 506, subd. (c); DePasse, supra, at p. 101.)7

 Section 306 summarizes these procedural steps (license, solemnization, 

authentication, and registration with the county), and provides that the failure by a 

nonparty to comply with the statutory requirements does not invalidate the marriage.8 

(DePasse, supra, 97 Cal.App.4th at p. 106.) Further, the code provides for a remedy in 

the event the license was not registered with the county after the solemnization ceremony, 

allowing the parties to purchase a "License and Certificate of Declaration of Marriage" 

from the county clerk and return it to the county recorder. (§ 425; see DePasse, supra, 97 

Cal.App.4th at p. 104.)9

 

7 Section 423 states: "The person solemnizing the marriage shall return the 

marriage license, endorsed as required in Section 422, to the county recorder of the 

county in which the license was issued within 10 days after the ceremony." 

 Section 506, subdivision (c) states: "The confidential marriage license shall be 

returned by the person solemnizing the marriage to the office of the county clerk in the 

county in which the license was issued within 10 days after the ceremony." 

8 Section 306 states: "Except as provided in Section 307, a marriage shall be 

licensed, solemnized, and authenticated, and the authenticated marriage license shall be 

returned to the county recorder of the county where the marriage license was issued, as 

provided in this part. Noncompliance with this part by a nonparty to the marriage does 

not invalidate the marriage." 

9 Section 425 states: "If no record of the solemnization of a California marriage 

previously contracted under this division for the marriage is known to exist, the parties 

may purchase a License and Certificate of Declaration of Marriage from the county clerk 

in the parties' county of residence one year or more from the date of the marriage. The 

license and certificate shall be returned to the county recorder of the county in which the 

license was issued." 
8 

 In Cantarella, supra, 191 Cal.App.4th 916, the court concluded a marriage was 

valid even though the marriage license was not registered with the county due to the 

parties' decision (possibly for tax reasons) not to resubmit the license for registration 

after it was returned to the parties for a technical error. (Id. at pp. 919-920, 924, fn. 8.)10 

The Cantarella court reasoned that the core element of a valid marriage is the parties' 

consent. (Id. at pp. 923-924.) The license and solemnization requirements were directed 

at ensuring that the parties had the capacity to consent and that they were actually 

consenting; for example, the license disclosed their ages, and at solemnization the parties 

declared that they accepted each other as spouses. (Ibid.; see DePasse, supra, 97 

Cal.App.4th at pp. 95, 102 [under California's statutory scheme, securement of license 

essential to valid marriage].) In contrast, the registration requirement, which was the 

duty of the officiate, not the parties, did little to ensure the parties had validly consented 

to the marriage, but rather served a recordkeeping function. (Cantarella, supra, at p. 

924.) 

 The Cantarella court concluded that although the statutory scheme explicitly 

excused only a nonparty's failure to comply with the statutory requirements, failure to 

comply with the registration requirement did not invalidate the marriage "regardless of 

who bore the responsibility for the nonregistration (whether a party or nonparty)." 

(Cantarella, supra, 191 Cal.App.4th at p. 925, italics added.) Cantarella reasoned: "In 

 

10 Cantarella evaluated the Civil Code statutes that were the predecessors to the 

current Family Code statutes. (See Cantarella, supra, 191 Cal.App.4th at pp. 919, fn. 1, 

921.) 
9 

the rare instance where a party failed to register public evidence of the marriage, such 

failure might be inadvertent or involuntary (as in the case of a rejected certificate) or 

might instead indicate a lack of consent at that time. We do not believe the Legislature 

intended a marriage to be thereby rendered invalid. True, the keeping of accurate and 

complete marriage records benefits the public. But this goal pales compared to the 

societal importance of recognizing the validity of marriages to which the parties have 

consented. To hold that a failure by a party to register a certificate voids a marriage 

would invalidate 'marriages already solemnized in this state and would, among other 

results, affect the marital status of the parties, their property rights and rights of 

inheritance.'. . . [I]t would 'negate the manifold fiduciary and legal obligations the parties 

understood they were incurring,' due to 'a technical misstep along the way.' " (Id. at pp. 

924-925, fns. and citation omitted.) 

Cantarella further stated that its conclusion was consistent with the statute that 

permitted a party to purchase substitute documents in the event there was no record of the 

solemnization of the marriage. Cantarella observed that, significantly, this curative 

statute did not provide that "in the interim period between the marriage ceremony and the 

filing of a . . . substitute certificate, the marriage was invalid." (Cantarella, supra, 191 

Cal.App.4th at p. 925.) 

Analysis 

 We agree with Cantarella's reasoning, and, assuming arguendo the nonregistration 

in this case can properly be attributed to Pickens as well as to her marriage officiate, we 

apply it here. It is clear from section 300 that although consent is the core element of a 
10 

marriage, a valid marriage also requires a license and solemnization. There is no dispute 

that all three of the elements set forth in section 300 occurred here: the parties intended 

to consent to the marriage, they obtained a license, and the marriage was properly 

solemnized by an officiate. 

 The Family Code also requires authentication of the marriage license by the 

officiate, and there is no contention this did not occur here. The only missing element 

was the return of the license to the county for registration, which was the duty of the 

officiate, not the parties. As recognized by Pickens, under the express terms of section 

306, an officiate's failure to perform his or her duties (including the return of the license 

to the county) does not invalidate the marriage. (DePasse, supra, 97 Cal.App.4th at p. 

106.) 

 Likewise, to the extent the failure to register the marriage can be attributed to 

Pickens's assumption of the officiate's duty, the nonregistration was a technical misstep 

that did not invalidate the licensed, solemnized, consensual marriage. As explained in 

Cantarella, the technical nature of the registration requirement is shown by the fact that 

nonregistration does not undermine the core element of consent at the time of the 

marriage. Further, the statutory provision of a remedy in the event of nonregistration 

(i.e., the option to purchase a "License and Certificate of Declaration of Marriage" from 

the county clerk under section 425) reflects that the Legislature perceived nonregistration 

as a technical error that may be corrected without affecting the validity of the marriage. 

 To support a contrary conclusion, Pickens cites a footnote in Cantarella where the 

court noted that the current Family Code (unlike the former Civil Code evaluated in 
11 

Cantarella, see fns. 3 & 9, ante) contains a provision stating the term "shall" is 

mandatory, not permissive, and the court posited that the current mandatory nature of the 

registration requirement "arguably suggests" that under the current code a party's failure 

to register the marriage license could invalidate the marriage. (Cantarella, supra, 191 

Cal.App.4th at p. 923 & fn. 7.)11 The marriage in this case occurred in 1985, which was 

before enactment of the current Family Code; thus Cantarella's statement concerning the 

current code is not applicable here. (See fn. 3, ante.) In any event, the statement was 

dicta, and we decline to follow its suggestion. The fact that the statute mandates that the 

authenticated license be returned to the county for registration does not mean 

noncompliance with this duty necessarily negates the legal validity of the underlying 

marriage. (See Bayside Auto & Truck Sales, Inc. v. Department of Transportation (1993) 

21 Cal.App.4th 561, 566 [not every provision which is mandatory in the sense of being 

obligatory (rather than permissive) has an invalidating effect in the event of 

noncompliance].) For the reasons we have explained, we conclude nonregistration of the 

license with the county does not alone invalidate the marriage, even if a party can be 

deemed responsible for the nonregistration. 

 Pickens also argues the marriage was void at its inception because the parties 

falsely claimed they were living together when they secured the confidential license. We 

are not persuaded. Although the untrue statement by the parties about their living 

 

11 Section 12 states: " 'Shall' is mandatory and 'may' is permissive. . . ." Sections 

306, 423, and 506 state the license "shall" be returned to the county, and section 306 

provides that noncompliance by a nonparty to the marriage does not invalidate the 

marriage. (See fns. 6 & 7, ante.) 
12 

arrangements affected the type of license they acquired, it did not alter the facts that they 

were entitled to a license and that they did in fact secure one; i.e., this is not a case where 

the complete absence of a license obviates the validity of the marriage. (Compare 

Argonaut Ins. Co. v. Industrial Acc. Com. (1962) 204 Cal.App.2d 805, 806-807, 809 

[parties' placement of assumed names, rather than real names, on marriage license did not 

invalidate marriage] with DePasse, supra, 97 Cal.App.4th at p. 103 [failure to obtain 

license invalidated marriage; legislative intent to eliminate common law marriage 

supports that license is essential to valid marriage].) Nor is this a case where the parties 

obtained a confidential license by misrepresenting their living arrangements under 

circumstances suggesting the marriage was a sham. (See, e.g., People v. Hassan (2008) 

168 Cal.App.4th 1306, 1308-1310 [defendant obtained confidential license by falsely 

claiming parties were living together for suspected immigration fraud purposes].) 

 Pickens further contends the county did not comply with its duty to notify her that 

the license must be returned to the county for registration, and her license has expired.12 

Her claim that the county did not notify her of the registration requirement has no bearing 

on the elements of consent, license, and solemnization, all of which exist here and 

establish the validity of her marriage. Her contention that her license had expired is 

 

12 Both public and confidential licenses expire 90 days after their issuance. (§§ 356, 

504.) The county clerk is required to transmit a list of the issued marriage licenses to the 

county recorder, and if a license has not been returned within 60 days after its issuance, 

the county recorder must notify the licenseholder that it has not been returned and that it 

will expire on the date shown on its face. (§ 357, subds. (a), (b).) Also, the county 

recorder must notify licenseholders that the officiate is obligated to return the license 

within 10 days after the ceremony. (§ 357, subd. (c).) 
13 

unavailing since her marriage was solemnized prior to the expiration date of the license. 

The statutory scheme does not support that the failure to register the license causes it to 

expire; to the contrary, for the reasons we have explained, a license is valid 

notwithstanding the failure to register it. 

 Pickens also reiterates her request for equitable relief, noting that Wilson has no 

objection to an order declaring the marriage invalid, and asserting she will be seriously 

prejudiced in the Illinois proceeding if the marriage is not deemed invalid. These factors 

do not undermine the core element of consent to the marriage at the time of its 

occurrence, and Pickens has not cited any authority to support invalidating a marriage 

based on these types of considerations.13

 Finally, Pickens challenges a ruling by the trial court that it had no authority to 

declare the marriage invalid under Health and Safety Code section 103450 (section 

103450). In her petition to the trial court, Pickens cited section 309 and section 103450 

 

13 The fact that the marriage was valid does not mean Pickens cannot seek to present 

her claim to the Illinois court that, based on counsel's advice, she had a good faith belief 

the marriage was invalid and for this reason did not obtain a dissolution before marrying 

her current husband. 
14 

as the statutory basis for her petition to declare the marriage invalid.14 The trial court 

stated it did not believe section 103450 authorized a court to declare a marriage invalid. 

The court's statement in this regard is of no practical import because after discussing this 

matter, the court stated that even assuming section 103450 was broad enough to permit 

the court's adjudication of the validity of the marriage, the court found the marriage to be 

valid. Because we agree with the trial court's conclusion on the validity of the marriage, 

we need not decide the scope of section 103450 in conjunction with section 309. 

 

14 Section 309 states: "If either party to a marriage denies the marriage, or refuses to 

join in a declaration of the marriage, the other party may proceed, by action pursuant to 

Section 103450 of the Health and Safety Code, to have the validity of the marriage 

determined and declared." 

 Section 103450, subdivision (a) states in relevant part: "A verified petition may 

be filed by any beneficially interested person with the clerk of the superior court in and 

for (1) the county in which the . . . marriage is alleged to have occurred, [or] (2) the 

county of residence of the person whose . . . marriage it is sought to establish . . . for an 

order to judicially establish the fact of, and the time and place of, a . . . marriage that is 

not registered or for which a certified copy is not obtainable." 
15 

DISPOSITION 

 The judgment is affirmed. 

HALLER, J. 

WE CONCUR: 

HUFFMAN, Acting P. J. 

O'ROURKE, J.