Common Law Marriage
What is Common Law Marriage?
In the modern era and through the lens of California law, you may wonder what it actually means to be considered married when you have never participated in an official marriage ceremony. Using the phrase "common law" in any context can be confusing, but California does have some fascinating and historical rules about marriage that you should know about.
Common-law marriage is defined as a marriage that is made based on the joint agreement, mutual consent, and public representation or cohabitation of the husband and wife. Since it is a traditional term that has been used for many years, you will likely overhear it used quite frequently when talking about people who live and act like they are married, but have never had a ceremony or legal declaration of marital status .
However, it is important to note that not all states in America allow for common law marriages. Although it is a common term, specific legal principles and requirements vary from place to place. Commonly accepted legal principles surrounding common law marriage in the U.S. usually include:
Because California does not recognize common law marriages like some other states do, if a partner in a California couple who meets the above criteria from some other state were to come to California, that person would most likely still be considered single. To learn more about the requirements for a domestic partnership or regular marriage in California, to learn whether you qualify for alimony payments, or to determine how many years you will need to be married to get a divorce, you may want to speak with a qualified family lawyer.
California’s Interpretation of Common Law Marriage
California explicitly prohibited any common law marriage with passage the Family Code § 421. California law holds that only relationships entered into before January 1, 1895 are recognized as marriage by cohabitation without formalities.
California law does not recognize common law marriages. In short, California law holds that there is not a valid marriage unless a couple has a license and ceremony performed. See Family Code § 300. California law recognizes common law marriages only if the common law marriage was valid where formed. A common law marriage entered into in Nevada is not valid in Utah where all of the requirements for a common law marriage were satisfied. Family Code § 350.
There is a limited exception to the no common law marriage rule. In order for a common law marriage to be valid in California and a marital relationship to exist, the relationship must have been entered into before January 1, 1895, when the California statutes regarding common law marriage were amended to eliminate common law marriage.
California law provides that a party may recover for the property obtained in a putative marriage. A putative marriage is a relationship that is entered into under the belief that the parties are legally married but for some reason, the relationship is not legally recognized. Family Code §§ 2251, 2252. While not a common law marriage, a putative marriage operates similarly in that the parties treated themselves as married. There must be the same elements of a valid marriage, such as capacity, consent, and the intention to marry, required for a currently valid marriage. Family Code § 2201. Talking to a lawyer who is familiar with the nuances of divorce in California is the best way to ascertain whether your relationship is or was a putative marriage.
In general, a putative marriage does not require the couple to have been together for a specified number of years. However, length of the relationship is an important factual inquiry in the courts. Different courts have different conclusions about if a date of separation can be determined or an actual or an implied termination of the common law relationship if the parties live apart, stop holding themselves out as married, and reflect a desire to stay unmarried.
The “7 Year Rule” is a Myth
One common area of confusion for non-lawyers is the so-called "7-Year Rule" regarding common law marriages in California. You can probably already guess that the "7-Year Rule" is a myth. California is more concerned about the formalities of marriage than the length of a cohabiting relationship, regardless of whether the parties are buying a house together or sharing joint credit cards and bank accounts.
Although common law marriages are recognized in some states, they are not recognized in California. If a couple lives together for seven years, they do not automatically acquire a common law marriage because California law does not recognize them. The only way that the couple would be considered married under California law is if they obtained a marriage license and had a marriage ceremony. So long as the couple continues to have a cohabitation relationship without first getting married, they are not legally married in California.
The only caveat to this rule is in the case of an out-of-state couple who entered into a common law marriage in a state where such marriages are valid. A couple who meets the requirements for common law marriage in the state in which the couple entered into the marriage is then considered to be a married couple in California, despite not having obtained a marriage license or had a formal marriage ceremony.
If the cohabiting couple decides to separate, they would not need to follow the more complex procedures required to divorce a formally married couple in California. However, access to property and other rights in the event of a separation would be determined by family law consequences….
Rights of Cohabiting Spouses for a Long Time
California legal rights for couples who live together as if they are married: Although California does not recognize common law marriage, domestic partners are legally recognized. A domestic partnership gives couples rights like marriage but not the other rights acquired through marriage. Domestic partners in California are entitled to make medical decisions for each other in the event one is incapacitated. They are also entitled to workers compensation benefits, if one suffers work-related injuries. Domestic partners can also acquire family healthcare plan coverage in the event of assocation with an employer . Other rights granted to domestic partnerships in California include tax benefits, living in resident facilities and adoption rights. Cohabitation agreements are designed to address issues like property rights, taxation, insurance, and inheritance. The agreement can also stipulate support obligations of the parties. In the event a couple has children, the agreement may address the legal custody of those children and since California law requires written premarital agreements to be notarized and filed with the County Recorder where either party resides, the same may be required for cohabitation agreements. After the contract is in writing, the parties must actually sign the agreement to demonstrate an intention to abide by its terms.
Other States that Recognize Common Law Marriages
Recognizing Out-of-State Common Law Marriages in California
When a couple who has been living under common law marriage moves to California or has had a child in California, there are additional issues to consider. In this situation, California probably won’t consider the couple married. In that example, even if someone had been a judge in Texas, his ruling has no effect in California. Thus, while it might have been "Law of the Land" in Texas where the common law marriage was formed, it’s not necessarily going to be the same in California. Unlike some other states, California doesn’t have reciprocity with respect to foreign marriages. Therefore, California won’t necessarily recognize a common law marriage that may have been entered into in another state. This is true whether the marriage was entered into before or after the parties came to California.
It’s important to note that California won’t give much weight to a judgment from another state. Essentially, if you believe that you have a common law marriage and that you can benefit from certain things like pension plans, Social Security, disability payments and the like, you may want to consider filing a Uniform Reciprocal Enforcement of Support Act suit in another state to secure those rights rather than trying to do so in California. If you’re not clear about your marital status, you should get a "no contest" divorce in California. That way, you are essentially divorcing something that is not a marriage to gain benefits and protections that a marriage would grant.
Consult an Attorney
Couples who are concerned about protecting their rights as married couples in the event of a California divorce should consider scheduling an appointment with a trusted attorney. A legal professional can examine existing evidence, offer advice on what may or may not be needed to prove the existence of a common law marriage and guide clients through the process of documenting their relationship in a way that abides by the law.
Potentially relevant documents take many forms and may include the following: Basic documentation that proves the two parties have been living together is valuable for helping to support a common law marriage defense. It should not , however, be confused with the additional documentation that is necessary to establish the existence of the marriage or to prove the dissolution of the marriage in the event of a divorce. Those who do not have the necessary evidence to either prove or disprove the existence of a common law marriage may then face a costly court battle over whether or not the marriage is valid.
