Common Law Marriage In California? Here are the Facts (and Myths)

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:

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’ interests 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!