Interesting Preliminary Provisions of the Family Code

California’s over 155,000 statutes are contained in 29 separate Codes. The ninth alphabetically is the Family Code. All 29 Codes have general or preliminary provisions applicable to reading and interpreting that Code’s sections.

In reviewing those introductory provisions contained in the Family Code, a few of them caught my attention, including the following, and I have added some commentary:

Section 3 – A provision of this Code, if it is the same in substance as a provision of a uniform act, it is to be construed to effectuate the general purpose to make uniform the law in those states which enact that provision. Comment: Uniform acts are an important tool in drafting statutes both nationally and internationally. The idea behind a uniform act is that all legislative bodies that adopt them use the same language so that the provisions apply “uniformly” across multiple jurisdictions. As a result, those interpreting the provisions of a uniform act should to so in a manner that ensure uniformity across all jurisdictions that have adopted the uniform act.

Section 4 – (a) As used in this section:

(1) “New law” means either of the following, as the case may be:

(A) The act that enacted this code.

(B) The act that makes a change in this code, whether effectuated by amendment, addition, or repeal of a provision of this code.

(2) “Old law” means the applicable law in effect before the operative date of the new law.

(3) “Operative date” means the operative date of the new law.

(b) This section governs the application of the new law except to the extent otherwise expressly provided in the new law.

Comment: This is interesting because it is one of the few instances where the terms “old” and “new” laws are used in California law. In addition to the Family Code, they can be found in the Probate Code, Code of Civil Procedure, and Financial Code in limited instances. There are other ways to say the same thing, but these Codes have used the approach of distinguishing between prior statutory provisions and newer ones. Also, the definition of operative date is not particularly helpful as it refers to itself in the language. An effective date is generally defined as when a law is one the books (i.e., usually January 1) and the operative date is when the law applies (which is usually January 1, but can be delayed to a specified start date).

Section 5 – Division, part, chapter, article, and section headings do not in any manner affect the scope, meaning, or intent of this Code. Comment: Although this statement is contained in a number of California Codes, the courts of this state have sometimes ignored it and actually have used these headings in interpreting ambiguous statutes, despite the contrary stated purpose by the Legislature. As a result, legislators do need to pay close attention anytime they are creating these types of headings because, in fact, they may be used to “affect the scope, meaning, or intent of the Code.”

Section 6 – Unless the provision or context otherwise requires, the general provisions and rules of construction in this part govern the construction of this Code. Comment: As previously mentioned, all 29 Codes have similar general provisions and some limited rules of construction. However, despite the intent and desire of the legislative branch in enacting these types of statutes, the judicial branch is charged with interpreting the laws of this state. As a result, the judiciary may follow these types of statutory provisions, or they may ignore, depending on how the judiciary decides it will interpret a state law.

Section 8 – Unless otherwise expressly stated:

(a) “Division” means a division of this code.

(b) “Part” means a part of the division in which that term occurs.

(d) “Article” means an article of the chapter in which that term occurs.

(e) “Section” means a section of this code.

(f) “Subdivision” means a subdivision of the section in which that term occurs.

(g) “Paragraph” means a paragraph of the subdivision in which that term occurs.

(h) “Subparagraph” means a subparagraph of the paragraph in which that term occurs.

Comment: I like this particular section of the Family Code because it is one of the few instances where the different levels of hierarchy of California Codes are defined. The Code, again, is where a body of statutes of related topics is found (e.g., Health & Safety Code, Penal Code, etc.). Under the Code, will come these other parts, all the way down to the individual statutes (called a “section”) and then within the code section itself. The definitions contained in subdivisions (a) thru (d) are the hierarchy of a Code. The definitions contains in subdivisions (e) thru (h) are the hierarchy of a code section or a statute.

Section 12 – The term “shall” is mandatory and “may” is permissive. The terms “shall not” and “may not” are prohibitory. Comment: This is a standard provision in our Codes and the way in which our state’s statutes have long been drafted. California law uses the term “shall” as opposed to “must,” as well as “may,” rather than “can.” Attorneys in the Office of Legislative Counsel attempt to draft using action words in the affirmative voice. And, they do so in a consistent manner and our state laws follow these rules set forth in all of the state’s 29 Codes.

Section 13 – If a provision or clause of this Code or its application to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of this Code which can be given effect without the invalid provision or application, and to this end the provisions of this code are severable. Comment: This is a standard severability clause. A number of Codes and even individual statutes contain these clauses. There is a split in views among bill drafters. Some believe they are important to have to ensure the judicial branch will keep intact any provisions that are not invalid while striking down unlawful provisions of law. Others understand that the judiciary generally automatically takes that approach even without a severability clause in the law.