california common law marriage

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. California does, however, recognize common law marriages that were created in states which do recognize them.

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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 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 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.

Palimony in California

Sometimes a couple who has been together for a long period have an agreement 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 or property rights if they are not married. There can, however, be rights created under an oral or written agreement between the parties.

When one person promises to provide support for the other party, 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 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.

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 are 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 a married couple. Each party should give thoughtful consideration to the following questions:

  1. How are joint bank accounts set up? Does the joint account give each party an equal right to the money in the account?
  2. Who is listed as a beneficiary or alternate payee on retirement, pension or 401(k) accounts?
  3. 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 interest should one of them pass away.
  4. 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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