• common law marriage in california

Common Law Marriage in California

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. 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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By |2018-01-18T15:46:57+00:00April 17th, 2016|Civil litigation, Estate Planning, Family Law|14 Comments

About the Author:

Sandra M. McCarthy, founder of A People’s Choice Inc., has worked exclusively in the legal field since 1976. She served as the 2004-2005 President of CALDA (California Association of Legal Document Assistants). She obtained a Paralegal Certificate from the University of California, Santa Barbara. During her career in the legal field, she has worked as a freelance paralegal, law office manager and paralegal studies teacher, and has co-authored numerous legal publications and written hundreds of self-help legal articles. As a registered Legal Document Assistant, Sandy is dedicated to providing affordable, low-cost, self-help document preparation services for California consumers in all 58 counties.

14 Comments

  1. Mark February 4, 2018 at 1:51 am - Reply

    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.

    • Sandy McCarthy February 7, 2018 at 2:38 am - Reply

      You are asking for legal advice. I would suggest you speak to an attorney regarding this matter.

  2. Eve May 22, 2018 at 12:52 am - Reply

    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?

    • Sandy McCarthy May 22, 2018 at 7:27 pm - Reply

      You may want to speak with a lawyer.

  3. Sonia May 22, 2018 at 5:03 pm - Reply

    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?

    • Sandy McCarthy May 22, 2018 at 7:27 pm - Reply

      You are not clear with what you what to do. Do you want to split up?

  4. Susan Bowker May 29, 2018 at 10:19 am - Reply

    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?

    • Sandy McCarthy June 4, 2018 at 10:14 am - Reply

      I would speak to an attorney. It sounds like you need legal advice.

  5. Tara June 9, 2018 at 10:17 pm - Reply

    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?

    • Sandy McCarthy June 11, 2018 at 11:51 am - Reply

      I do not know of a way that would be possible. You may want to talk to an attorney.

  6. Christal July 28, 2018 at 5:46 pm - Reply

    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

    • Sandy McCarthy August 4, 2018 at 8:22 am - Reply

      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.

  7. Arlene July 31, 2018 at 11:45 am - Reply

    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

    • Sandy McCarthy August 2, 2018 at 9:32 pm - Reply

      You probably should seek legal advice from an attorney.

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