Much to the surprise of many couples, there is no such thing as common law marriage in California. It has been believed that if a couple lives together for many years and represents themselves to be a married couple, that state law considers themselves legally married. Although common law marriages are recognized in a few states, a common law marriage in California can never be created under normal legal status. California does, however, recognize common law marriages that were created in states which do recognize them.
Read on to learn about the history of common law marriage in California, what a putative spouse is and how unmarried couples can protect themselves.
Common Law Marriage in California and California’s Putative Spouse Law
Common law marriage in California ended in 1895. Even though California did away with common law marriage, couples who continuously live together may still have certain rights to property division and financial support as if they had been legally married. These rights are only recognized under very rigid circumstances. California Family Code Section 2251 provides, in part:
If a determination is made that a marriage is void or voidable and the court finds that either party or both parties believed in good faith that the marriage was valid, the court shall declare the party or parties, who believed in good faith that the marriage was valid, to have the status of a putative spouse.
Under this law, there must be an assumption by one of the parties (known as a “putative spouse”) that they had entered into a valid marriage. This means the couple went through the motions to get married, yet something unsuspected made the marriage license invalid or void. These same principles can be applied to couples who are in an unregistered domestic partnership. A person deemed to be a putative spouse will be entitled to spousal benefits and a share in property acquired during the invalid marriage or domestic partnership under California’s community property laws. They may also be entitled to spousal support once the relationship is terminated.
Does California Recognize Common Law Marriage?
No, common law marriage is no longer possible in California. The laws regarding legal marriage in California outline that a couple can’t declare their marriage legal through cohabitation or verbal consent. When a man and woman live together in California for a given period of time and believe that they’ve created common law marriage, the family law courts in California cannot take this as evidence of marriage.
However, there exists a major exception. The laws in California outline that if a marriage was validated based on the laws of a different state or foreign country (where the alleged common-law marriage took place), the state of California will recognize the marital status of the couple.
For instance, let’s take this situation: a couple lived in a state or foreign country where common law marriage was legal, and they got married officially. When the couple moves to California, the laws will consider the alleged marriage legal. Therefore, their marriage will still be considered official in California based on the legal requirements from the other state or country. This is the only instance where common laws marriage can stand in California.
Common Law Marriages from the Other States
As we’ve said, there are some states that allow common law marriage. For a couple to be recognized through common law marriage in California, they must have satisfied the other state’s requirements for common law marriage. You should also remember that the laws regarding common law marriage vary from one state to the other. To clarify on such issues, you need to link up with an attorney who will help in determining whether the laws from the state you came from (that allows common law marriage) can be accepted in California. Generally, most of the states that allow common law marriage require that you file joint tax returns, share the same last name, or have joint credit cards.
Some of the common law marriage states include:
- Colorado
- Kansas
- Alabama
- South Carolina
- Utah
- Texas
- Iowa
- Rhode Island, and
- Montana
What Rights Do Unmarried Couples in California Have?
If your marriage agreement wasn’t legally approved in California or accepted by another state’s criteria for common law marriage, you may still have some rights that apply to divorced couples. If in your own perspective have convincing evidence that your marriage was valid, you can have the right to division of assets and financial support. You can have access to these limited rights related to financial accounts if your marriage remained unproved or had some technical anomalies during the actual marriage ceremony.
The two rights only apply when you had a verbal or written agreement for financial support and asset distribution during your period of cohabitation. Such a situation is called “palimony” and applies to couples that have lived together for a long period.
Palimony in California
Sometimes a couple who has been together for a long time period has prenuptial agreements between themselves to treat assets like community property. In other situations, one of the parties may have promised lifetime support to the other party, even though both parties knew they were not married. Under California law, no one is legally entitled to support, property rights, or marriage-like rights if they never underwent a formal marriage. There can, however, be rights created under an oral or written agreement between the parties that lead to a statutory marriage without adhering to any formal process.
When one person promises to provide support for the other party (without following any marriage laws) for an extended period, this has been known as “palimony.” Under certain situations, unmarried partners may have the right to bring a claim for “palimony,” or what is known as a Lee Marvin Claim, to court, but that is something completely different than a common law marriage. Disputes over these verbal contracts are filed in Civil Court and not in Family Court since it pertains to a breach of contract. These actions are very difficult to prove as the agreement is often verbal, making it next to impossible to enforce such a personal relationship.
What Happens When an Unmarried Couple Own Assets Together in California?
Very often unmarried couples in California have a joint bank account, pay debts together, commingle their earnings, and even hold title to real or personal property together. The way title to assets is held may muddy the waters considerably should the couple later separate. The form of title could also have an unintended consequence should one of the parties unexpectedly pass away. Unmarried couples do not have the same legal rights as married couples. Each party should give thoughtful consideration to the following questions:
- How are joint bank accounts set up? Does the joint account give each party an equal right to the money in the account?
- Who is listed as a beneficiary or alternate payee on retirement, pension, or 401(k) accounts?
- In situations where the parties co-own real property, does the manner of real estate title provide the other co-owner full beneficiary rights in case of death? Alternatively, does each party hold a separate interest? The manner of title will have a profound impact on what happens to the other parties’ interests should one of them pass away.
- Have the parties set up an estate plan that will protect the rights of their unmarried partner? Remember, unmarried parties do not have the same rights as a married couple. Both parties should consider establishing a will or living trust to make sure their partner is listed as a beneficiary to their estate. Wills, trusts, and estate planning concerns are important issues regardless of whether the man and woman are married.
Since common law marriage in California does not exist, couples who live together over a long period without getting married should consider a non-marital or cohabitation agreement. While we cannot give you legal advice, we can help you prepare an effective and comprehensive cohabitation agreement to hopefully prevent problems in the event you break up. We can also prepare your estate planning documents to make sure your partner is protected in case of death. Contact us at 800-747-2780 today!
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My partner divorced his wife 5 years. She was in commo law relationship with her new partner, moved to Kentucky and then returned to California. If she leaves her common law partner, can the ex wife go back to the courts and seek alimony from her ex husband, which is now my partner? She has means of income as she refused to work all her life.
We are not attorneys and cannot give legal advice.
My father passed away, Can his girlfriend sue me for palimony?
I would talk to an attorney regarding this matter. We cannot give legal advice.
Marie met Mike 15 years ago lived with him he died two months ago trying to figure out how to help her he was a marine is there any assistance for her he was a veteran.
Talk to an attorney. It sounds like you need legal advice.
He was living with a guy named Mike he was a marine and he died three months ago they said that at the reading of the evil which she did not go to it stated that she can stay in the house until she died but when daughter comes over it charges her $500 a month staying at the house I’m pretty certain she’s going to put her out and bring the school’s over they’ve already broken the front steps what can we do to help her
Get a copy of the will and talk to a lawyer for legal advice.
I have been with my partner almost 22 yrs. We have a 17yo son together and for the past few years haven’t been getting along so he decided we should slit up when our son turns 18. He has always been the sole provider and he recently had my car repos and said that the next man should worry about my needs. I make a living with my car and now I’m in a tail spin. He controls everything in our household. He’s going to put me out on the streets with nothing and no where to go come our sons 18 birthday. Ive always been a house wife, he made sure of that so he could always have control. I just wanted my car so I could keep working and live in it while I figured things out but he’s making sure that he leaves me destitute with nothing… I just want my car so I can keep working. I drive for a living so my car is essential to my life so I can take care of myself. I have no education background I was nothing but a house wife and now i have nothing
You probably should seek legal advice from an attorney.
I’ve been living with my boyfriend for almost 10 years, we have 3 kids together. I’ve owned the house where we live prior to him moving in. Does he have rightst o my property? We live in CA
Christal – as a legal document preparation service, we are not allowed to to offer legal advice. If you need questions answered regarding your rights and remedies, you may try avvo.com or contact a lawyer.
Hello. We are an unmarried couple who have been living together for many years and would like to be legally recognized as a married couple for the time we’ve spent together. Do you know of a way we could legally date the certificate from years before?
I do not know of a way that would be possible. You may want to talk to an attorney.
I had a job a car a apartment and furniture when I entered into my relationship with my boyfriend
He would let not let me work
I had to give anyway all my furniture and my dads guitars
He used my car till it wore out
And has been work every sat for 11 years at his houses and apartments and prop
Doing physical labor
He kicks me out
Verbally abuses me
He was drunk for 10 years
He has lots of money and property
He says he will never marry me
Or put me in the will
I physically worked on all his projects without getting paid
Do I have any chance of receiving any compensation?
I would speak to an attorney. It sounds like you need legal advice.
I live with my boyfriend 15 years and we have 3 kids together. This house that we live in is paid, was a fix so upper. We both put time into it to remodel the house but the house is on his name only. What happens when we separate? We have a joint checking account. His owns his own business but both operate the business. He does the field work and I do the administration side and sometimes I do the field work. I also, take care of the kids, house duty. He only spent about 1-2 during the week with the kids. The weekends Saturday a little more time, Sunday I say about 5-7 hours spent with them. What sure I do?
You are not clear with what you what to do. Do you want to split up?
Mike and I have lived together as married couple but without the certificate since 1979. Together we adopted 5 children now all adults. All living rentals throughout has both of our names practically everything has both of our names. Ate we considered commonplace?
You may want to speak with a lawyer.
Lived with a woman 18 years apts.She was married to someone else and so was I. She has full-time job no property, I have full-time job with property. IF WE BREAK UP IS SHE ENTITLED TO MY PENISONS OR PROPERTY? Her husband just pasted ,my wife still alive were all in are mid sixties.
You are asking for legal advice. I would suggest you speak to an attorney regarding this matter.