For the reasons stated in part III of the majority opinion, I concur in the decision to restrict the definition of a “close relationship” under Dillon v. Legg (1968) 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.2d 1316] to a marital relationship meeting the legal requirements imposed by our Legislature, as well as to the parent-child and other close relationships identified in the lead opinion. I write separately to emphasize that it is the obligation of the Legislature to examine the question whether people in committed relationships, both heterosexual and homosexual, other than those meeting the legal requirements for marriage, should be accorded recognition giving rise to all, or selected, legal rights traditionally reserved to married persons.
Historically, the Legislature has had the full authority to prescribe rules governing the marital relationship, including its creation and the rights and obligations incident to it. (McClure v. Donovan (1949) 33 Cal.2d 717, 728 [205 P.2d 17].) For this reason our statutes control the validity of marriages without regard to the common law. (Norman v. Thomson (1898) 121 Cal. 620, 621 [54 P. 143].) Legislative regulation of marital status is warranted because the creation and enforcement of rights incident to it involve complex questions of public policy.1 (Kelsey v. Miller (1928) 203 Cal. 61, 91 [263 P. 200]; Estate of Gregorson (1911) 160 Cal.21, 24 [116 P. 60]; see Crouch v. Crouch (1946) 28 Cal.2d 243, 251 [169 P.2d 897].)
The Legislature has determined that only a man and a woman can enter into a valid marriage (Civ. Code, § 4100 [the constitutionality of which is not challenged in this appeal]), and that a common law marriage, that is, a mutual assumption of marital rights, duties and obligations without compliance with licensing and solemnization requirements, cannot be contracted *1279in California. (Ibid.; see former Civ. Code, § 55, as amended in 1895.)2Our Supreme Court has held that certain rights and obligations between cohabitants may be judicially regulated based on principles of contract and equity (Marvin v. Marvin (1976) 18 Cal.3d 660 [134 Cal.Rptr. 815, 557 P.2d 106]), but as in the case of any other unmarried persons such principles do not apply to third persons who are not parties to the nonmarital relationship, such as the defendants here.
I believe that the question of extension of marital rights and benefits beyond the legally recognized marital relationship against third parties and governmental entities is a matter of public policy demanding the attention of the Legislature. These rights and benefits include recognizing the right to bring tort actions for wrongful death and for negligent infliction of emotional distress as well as the right to employee benefits such as family health care, group insurance and unemployment benefits. (See Rivera, Our Straight-Laced Judges: The Legal Position Of Homosexual Persons In The United States (1979) 30 Hastings L.J. 799, 874.) Because it is my view that the decision to extend these and other rights to committed nonmarital relationships is a matter for the Legislature,3 it is my opinion that a judicial extension of such rights would undermine the legislative function and would postpone, if not excuse, legislative responsibility.
Clark, The Law of Domestic Relations in the United States (1968) points out that the assertion by various state legislatures of a broad, plenary power over the marital status is clearly constitutional: “It falls directly within the police power of the various constitutions, since regulation of marriage is essential for the public welfare. For this reason many cases have upheld the legislature’s power as against constitutional attack.” (Id., at § 2.2, p. 35.)
However, the Legislature moderated its ban on common-law marriage by recognizing certain marital rights of parties to a putative marriage, defined in Estate of Foy (1952) 109 Cal.App.2d 329, 331 [240 P.2d 685], as “a matrimonial union which has been solemnized in due form and good faith on the part of one or of both of the parties but which by reason of some legal infirmity is either void or voidable.” (See The Family Law Act, Civ. Code § 4000 et seq., eff. Jan. 1, 1970, and specifically §§ 4452, 4455.)
In addition to the issue raised by the instant case, the Legislature also ultimately must legislate on other complex and sensitive questions raised by medical and scientific developments affecting familial relationships, including in vitro fertilization, surrogate pregnancies, and the storage and use of human embryos. (See generally, 25 J. Fam. L. (1986) Annual Survey of Family Law, and, e.g., p. 223.)