What is common law marriage?
Common Law marriage is a legal doctrine originating in medieval England that recognized as legally valid a union between couples who were not legally married but had lived together long enough to be considered married. Under this doctrine, a common law marriage requires both the intent to be married (mutual agreement) and cohabitation (living together).
At the time it was established, the primary reason for recognizing common law marriage was that a couple’s marriage could be validly proven without the formalities required for ceremonial marriage.
In other words, if a couple loved one other and had the intent to be married, and if they simply lived together, their union would be recognized as a valid legal marriage, without regard to a lack of formalities. Such a doctrine is in clear conflict with the modern U.S. practice of requiring various formalities for a marriage to be valid, primarily involving a record of such marriage at a county recorder’s office. Accordingly, the modern rule is that there is no common law marriage in California .
While common law marriages are not recognized in California, most states do permit a common law marriage, though under differing conditions. In states that recognize the validity of a common law marriage, the specific requirements for the existence of such a marriage vary. Generally, such states resolution involve an analysis of the "intent" and the "cohabitation" of the parties. Some states have specific guidelines for determining whether such a common law marriage exists, while others do not.
In rare instances, California courts dealing with particular issues have apparently overlooked the prohibition on common law marriages and have conceptually applied the doctrine. However, these are not establishing legal authority.
In any event, California Supreme Court has expressly held that its "primary concern is the protection of innocent third parties and the state from the potential for fraud inherent in the recognition of common law marriages." We believe that a secondary concern involved protecting individuals from losing their status as married couples.
Common law marriage in California is a misunderstanding
In the 20 states that do recognize common law marriage, a common law spouse enjoys the same rights and responsibilities as a spouse legally married, provided the couple entered into an agreement to be married, both spouses intended to enter into an agreement to be married, they reside together and hold themselves out to the community as married, and they have a mutual obligation of support. California is not one of those states. If you and your partner have never formalized your relationship through a civil or religious ceremony, your union status will be considered unmarried for all legal purposes in the state. You cannot enter into a marriage with consent or agreement (implied or otherwise) without obtaining a marriage license first. Because of that very simple legal nuance, your relationship cannot be considered common law. Instead, you are simply cohabitating, or living together outside of the bounds of marriage. Cohabitation has no bearing on civil or family law issues in California. Even if you and your partner have been living together for years, have a child together, share finances, or have shared real estate, the court will have no power to distribute your property in the event of a breakup, nor will either of you be entitled to spousal support, health insurance coverage, or office visit rights in the event of incapacitation. Essentially, you will be treated as single individuals unless you take specific steps through the courts to outline collaboration.
Duration: How long does it take?
Many people are under the impression that in states where common law marriages are permitted, the parties must reside together for a specific period of time, usually around seven years, before becoming legally married. This is not true. Every state has its own unique laws on common law marriage. While some states do include a duration requirement of some kind, the Golden State is not one of those states. As a result, duration is not an issue if two persons wish to declare their intent to be married in the state of California. With this in mind, it is important to remember that the law in one state may not hold true in another. There are nine states, plus the District of Columbia, that still officially recognize common law marriage. These jurisdictions are Iowa, Kansas, Montana, New Hampshire, Ohio, Rhode Island, South Carolina, Texas, Utah, and Wisconsin. However, just because all of these states recognize the existence of common law marriage, or the continuation of it, does not mean that they are all exactly the same. Some may require a more specific duration of time up front or a shorter amount of time for the relationship in some circumstances. Others may require an express intent, such as that of an affidavit or other written declaration, for the relationship to be classified as a common law marriage. Again, due to California’s lack of laws on the matter, there are none of these issues to contend with in this state.
Legal alternatives in California
In California, alongside common law marriage, there are other legal alternatives for couples who choose to live together but do not desire to marry. Domestic partnerships are one such option. Originally designed primarily for same-sex couples, including registered domestic partners has now expanded to include opposite-sex couples as well. As of January 1, 2017, opposite-sex couples in California can enter into a domestic partnership if (i) at least one of the partners is over the age of 62, (ii) one partner is still married, and (iii) one of the marriage definitions of the Family Code were met.
When a domestic partnership is registered, it comes with certain rights and obligations similar to married couples. For instance, registered domestic partners are treated similarly to spouses in many legal ways, like property division, spousal support, and family leave. Critically, California law governing domestic partners includes dissolution and custody-related laws.
Cohabitation agreements are another alternative for unmarried couples to consider. These types of contracts are between two or more people who live together and wish to sort out property, financial, and personal responsibilities. Signing a cohabitation agreement creates a legal obligation between the parties to adhere to the terms of the contract. Cohabitation agreements allow couples to manage their rights housing, which is particularly helpful when living with other adults and children. Cohabitation agreements are beneficial in that they do not require the same complexity as divorce procedures do.
Property rights and financial implications
Property rights and financial duties in longer-term relationships are governed by California law, and recent case law emphasizes the nature of the parties’ relationship in terms of "marriage-like" qualities. A 2016 decision held that a couple who had known each other for more than 40 years, of which the parties had cohabitated as a married couple for over 11 years, was accordingly subject to the family code provisions(Family Code sections 850-854) for division of property owned by married couples regardless of whether a common law marriage was created. (The California Supreme Court granted review of the case, but subsequently dismissed the appeal.) The law on division of debts in long-term cohabitation is not clearly defined. In a case involving a couple who shared 40 years of cohabitation, in a variety of domestic and business settings, the court found authority for such a division under Family Code section 7650. Such a division is not guaranteed, however, and depends largely upon the circumstances of the parties and their relationship.
A person who mistakenly believes that their relationship pushes the common law marriage requirement will be treated as if they entered into a legal marriage , and thus entitled to community property rights upon dissolution. A person entering into a purported common law marriage will be subject to duties of marriage including those related to trusts and estates. While the parties may not have intended to create any legal rights or obligations, they may be stuck in the same manner as an equally unsuspecting married couple when the relationship sours. This can be particularly problematic where a person enters into a relationship with the intention of forming a common law marriage, with the understanding that they will acquire certain property rights in the event of a breakup. Some states do allow for a contract to divide property in the event of separation to avoid creating a common law marriage, but California courts have expressly refused to recognize such contracts. In a series of decisions, California courts have refused to enforce premarital agreements which did not comply with the same provisions as formal marital agreements. A certain level of informality is still acceptable, however, and the most recent case upheld a non-lawyer’s premise whereby the parties agreed that the first person to file for divorce would forfeit all of the assets – a simple, although not entirely effective, means of avoiding a legal marriage. What California courts will enforce going forward remains a question.
Out-of state common law marriages
Common Law marriages that are validly established in another state are recognized in California. At this time in California, there is no statutory provision that governs the recognition of common law marriages in a court proceeding.
If the following criteria are met, a common law marriage will be recognized as valid in California:
- The couple mutually intended to enter into a relationship whereby they would each be entitled to all of the rights and privileges of a spouse under California law;
- The parties lived together as spouses in California;
- The parties otherwise met the legal requirements for marriage in the state in which the common law marriage was entered into;
- The parties have not subsequently, by conduct or agreement, converted their legal status from that of "domestic partners" to one of spouse; and
- There have not been any proceedings between the parties relating to their status as a domestic partnership or a marriage.
To determine whether a "common law marriage" exists, the status of the parties must be established through competent evidence which establishes that the parties previously entered into a valid marriage under the laws of a jurisdiction which recognizes common law marriage. Competent evidence will include, but is not limited to, proof as to the nature of the parties’ cohabitation, the place and duration of the parties’ cohabitation, joint holding of title to property, use of an assumed surname, joint tax returns and other evidence tending to show the present or former marital status of the parties in the jurisdiction in which the purported common law marriage was claimed to exist.
Where one of the parties lives in California, and you decide not to get married in California, the "out of state common law marriage" usually becomes an issue in any lawsuit filed in California which involves questions of desiring to file as "married" or separation/divorce, on the grounds that there is a "putative marriage."
Expert legal advice and resources
For couples who have been together for an extended period of time, and want to determine the level of rights and obligations created through their relationship, it is vital to seek expert legal advice. Experienced legal counsel can provide guidance on the necessary qualifications to meet in order to be considered as being in a common law marriage; and to assess the strength of such a claim if there is no evidence of a true marital-like relationship. Also, legal counsel can assist individuals who are seeking to avoid some of the common hazards that can arise during the process of dissolution, including dividing relationship property, separating joint debts, continuing to hold mutual businesses , and designating ongoing support payments and visitation rights in the context of child-rearing.
Legal advice can help couples who are planning to enter into a long-term cohabiting relationship. For instance, a cohabiting couple may want to formulate a contract that creates rights and obligations that will be recognized by the court more similarly to those afforded to married couples. In addition, a properly drafted contract can provide an avenue of compensation, or right of litigation, to an aggrieved party, without the need to prove the existence of a formal marriage. On the other hand, each agreement can be tailored to a couple’s specific needs and circumstances.
