What is Common Law Marriage?
The origins of the common law marriage doctrine can be traced back to the roots of American law in the 17th century. During this time, English common law held that "marriage," as defined in English law, was a creature of statute. If the marriage was valid under statute, it was recognized by all jurisdictions in England. However, for those couples who had no choice but to continue cohabiting due to the remoteness of official judicial officials, English law also provided the option of "marriage by reputation" – a doctrine granting husband and wife status based on reputation, acknowledgment, and acquiescence of the parties, the absence of fraud, and a reasonable degree of formality in the arrangement. Many American jurisdictions followed the common law tradition, and strictly required that couples marry under the laws of the state in which they resided. Over time, however, this doctrine changed drastically. Matrimonial law evolved to consider the customs, traditions, and histories of the colonies. One major change to the common law marriage doctrine occurred during Colonial times. Concerned for the welfare of abandoned women and children born out of wedlock, the Continental Congress resolved in 1789 to permit "marriages by reputation" as valid in the United States . By the mid-1800s, twenty-seven states and territories recognized the validity of common-law marriages. Countries such as Canada, the Netherlands, Ireland, Belgium, France, Portugal, and Venezuela also recognized common law marriages as a valid alternative to formal, written marriages. Throughout most of the 20th Century, common law marriage was a universally-accepted method of obtaining marriage. Many courts viewed instances of cohabiting couples who presented themselves as married as a valid marriage, even without the benefit of a license or ceremonial marriage. Currently, only five states, four territories, and the District of Columbia continue to recognize common law marriages attained through cohabitation and reputation. All have considerably restricted this form of marriage to certain situations: The concept of common-law marriage has been eliminated in most states throughout the United States. However, California has never recognized common-law marriage. It is equally important to note that California also does not recognize marriages that were contracted as common-law marriages in other jurisdictions that do recognize them.
California’s Recognition of Common Law Marriage
California is unique in the sense that it recognizes domestic partnerships but does not allow for common law marriage. In fact, the state’s Family Code and Welfare and Institutions Code explicitly prohibit common law marriage (under California Family Code Sections 308.5 and 350).
Interestingly, in 1895, the California Supreme Court ruled that places like Utah, where common law marriages were valid, were considered "foreign" because they were territories of the United States that had not yet attained full statehood. Therefore, couples living in other states that allowed for common law marriage would be considered married in California.
As noted, California prefers the domestic partnership route since it allows gay and lesbian couples the same rights as heterosexual couples who obtain a marriage license and have a formal wedding ceremony.
In California, if portions of a couple’s period of cohabitation meets the duration requirements of either California or the partners’ home state, if they are not domiciled in California, the cohabitation can result in a "common law domestic partnership." While that type of domestic partnership is not valid in most U.S. states, California still recognizes them.
Despite this, the California State Legislature treats common law domestic partnerships as valid and consistent with California law.
Common Law Marriage as an Alternative in California
There are several alternatives available to couples who are cohabiting in California who seek legal protection for their relationship. While there is no common law marriage in California, the following legal alternatives offer some measure of rights, benefits and protections for cohabiting couples.
Domestic Partners
California has granted domestic partners a number of legal rights and benefits. Those particularly relevant to cohabitating couples include: A domestic partnership is a registered relationship between two persons of the same sex or opposite sexes whereby the parties are not married to anyone else and are not closer than second cousins to each other. California law prohibits from being registered as domestic partners persons who are already married under California law; who are not at least eighteen years of age at the time of registration of domestic partnership; or are not member or have been invalidated. The domestic partnership statutes require that the domestic partners share a common residence and have voluntarily agreed to support one another. The domestic partnership statutes also require that the domestic partners may not be related to each other by blood to the extent that, if they were of the opposite sex, they would not be allowed to marry.
Cohabitation Agreement
In the absence of marriage or legislation for cohabiting couples, a written agreement between intimate friends or other romantic partners can be a valuable way to define the rights of each person to property or support. While not as lasting as traditional marriage, a cohabitation agreement provides security and certainty to both parties. Cohabitation agreements should contain the following basic elements to provide needed certainty. 1.Unmarried cohabitation ("living together") is a matter of contract, requiring agreement of the parties. 2.A cohabitation agreement is necessary as a substitute for the traditional marriage contract. 3.A cohabitation agreement should be in writing. In fact, some courts only recognize a cohabitation agreement as valid if it is in writing.
Out-of-State Common Law Marriages
When a marriage is validly entered into in another state, it is generally recognized as valid in California. However, for common law marriages that were entered into in other states, the determination of whether they are valid in California can be more complicated.
The Uniform Marriage and Divorce Act addresses this issue, and its impact can be quite critical in some cases. As one California Court put it in In re Marriage of Monasky (1994) 25 Cal.App.4th 162:
"[I]t is clear that section 282.1 of the MDA implements the Uniform Marriage and Divorce Act (UMDA), which was designed to ‘eliminate the need for jurisdictional competition among the states over the marriage and divorce relationship’ and ‘replace the intervening, complex, cumbersome, and confusing ouster action in one state by a suit to register a divorce judgment from another state.’ (Uniform Marriage & Divorce Act (1970) prefatory note, 9B U.L.A. 62 (1987).)"
More specifically, Section 282.1(a) states that: "[a} marriage, valid under the laws of the jurisdiction in which the marriage was solemnized, including a marriage that may not be recognized as a marriage in this state, is valid in this state, except that the children of each party to such a marriage who are born or conceived before the marriage was solemnized shall be treated as illegitimate children for the purpose of determining the support and custody rights of the parties." (Emphasis added.)
Section 282.1 goes on to state that "[a]ll proceedings involving support or custody under the [Uniform Act] shall be conducted in the same manner as is customary in this state." Thus, when Section 282.1 is applied, the entire range of California law regarding custody and support issues is implicated. The California courts have therefore applied California divorce provisions to determine issues that arise out of common law marriages. (See Marriage of Monasky, at 162-163.)
Another California case relates (by analogy) to the Uniform Marriage and Divorce Act as it applies to child support issues. In Marriage of Dye (1994) 22 Cal.App.4th 31, the Court of Appeal held that:
"Although common law marriages had been abolished in California since 1895 (Fam. Code, §§ 420-421), section 4102 provides: ‘If the relationship of husband and wife is established in another jurisdiction in accordance with the law of that jurisdiction [it] . . . exists in this state.’ Thus, significant portions of the Uniform Marriage and Divorce Act of 1970 can be applied in California to issues relating to support of any children born to the parties prior to the time their informal marriage was recognized in this state. Grove v. Grove (1977) 80 Cal.App.3d 269, 293.’ Marriage of Monasky, supra, 25 Cal.App.4th at 168." (Emphasis added.)
This means that there can be circumstances in which the laws of another state will apply to child support issues – as with spousal support issues – in cases of common law marriages. And the decisions that were made in those other states might well be quite different than the outcome in California.
Rights and Responsibilities in the Absence of Marriage
California law provides some legal rights and responsibilities to couples that are not married. These rights and responsibilities arise from the couple’s actions rather than a legal contract entered into by the parties prior to marriage.
Property Rights
In California, a couple that is living together but not married may own property together. In order to obtain a deed on a piece of real property showing both names on the deed, however, you must be married. If you are married, when you acquire property together as husband and wife it is presumed to belong to both of you. The title on the deed usually states CP for community property, which means that both husband and wife have equal ownership of the property. Any other deed showing a single owner would be presumed to be that owner’s separate property.
In contrast, unmarried couples who buy or improve property together do not get the presumption that the property is jointly owned. In fact they likely own the property as tenants in common and each owns a 50% interest in the property. You cannot sell or encumber community property without both owners signing off on the sale or encumbrance. With tenants in common, either owner can sign a deed to sell or encumber the property.
Parental Responsibilities
Unmarried parents in California are presumed to have equal rights and responsibilities towards their children. Like a divorced parent, an unmarried parent has the right to make educational and health care decisions for their children. They also have the right to seek child support , custody and visitation orders from the family court in the same manner and subject to the same standards as married parents, regardless of the parents’ marital status. Of course, many unmarried parents do not agree on these matters and must enlist the court’s help to establish appropriate orders.
Financial Obligations
California law recognizes that a person may have an obligation to financially provide for another person without being married to that person. The leading statement of the law is found in the case of Marvin v. Marvin, 18 Cal.3d 660 (1976). In that case, the California Supreme Court recognized that same sex and different sex partners have the similar ability to marry as of 2014. Thus, it will not be necessary to prove common law marriage exists. However, there may still be a nonmarital relationship and the law that governs property division between those parties has been extended to nonmarried couples. The rule is very simple: when unmarried partners make an agreement to share property and the property is clearly intended to be held in common, the property should be divided as agreed. California has provided a list of 17 factors to consider in determining whether such an agreement exists. The most important factor is money or property must have been transferred between the parties. When the parties have not entered into the agreement, the court has additional factors to consider in establishing the "equitable" result.
How to Acquire a Legal Marriage in California
Before a couple can legally present themselves as married in California, they need to go through the appropriate steps to marry. While this process is straightforward for most couples, it can sometimes trip up people who are not aware of what it entails, such as those the law does look unfavorably on.
The first step toward legal marriage is obtaining a marriage license. California Health and Safety Code section 10600 specifies that individuals intending to marry must have both a marriage license and a certificate of marriage. Most local authorities charge $50 to $105 to obtain a marriage license. These licenses expire within 90 days, and are no good if the couple has already obtained one before. Any license that has been already signed by a pair of witnesses, however, is valid until formally rejected by an authorized party.
California law mandates that people who seek to marry do so in person at the office of a local municipality such as a county clerk. Either party may fill out the marriage license form, and it does not need to be notarized. A marriage license application is usually valid for 90 days from the date of completion after both parties have signed the form. After the 90-day period, the couple must reapply for a marriage license.
A marriage license may not be used in any other state. In California, however, cities like San Francisco actually recognize marriages that are conducted on the basis of a guidebook or brochure regarding civil marriage law. Out-of-state licenses issued by municipalities with the power to grant such marriage licenses are also accepted by California. Examples include the District of Columbia, where common law marriage is recognized.
While almost anyone who walks up to the counter of a local municipality clerk’s office is able to obtain a marriage license, California Health and Safety Code section 360 requires that every marriage be licensed by an official person who has the authorization to do so. This makes it clear that couples cannot simply ask their family and friends to conduct ceremonies, however organized they are. The person tasked with conducting a marriage in California to make it legal includes:
This person must also be 18 years old or older. The only other option is to be an officiant in a religious organization, and this requirement is lifted if the ceremony is performed at the request of the group or is between a member and the officiant, observes California Health and Safety Code section 400.
A couple struggles to have their legal marriage recognized in California when a law enforcement official, service member or government employee is present at the ceremony. The mere presence of one of these employees is enough to invalidate a marriage in the eyes of the California Family Code. California Family Code section 420 prohibits all officers and government employees from solemnizing a marriage in which they play an official capacity, from a police officer to a judge, if that officer or employee is the parent, grandparent, cousin or child. This prohibition is also enforced in cases of cohabitation or dating relationships.
Even if a couple runs afoul of the restrictions above, the question of whether a common law marriage exists in California is primarily determined by residency statutes that apply in other states. These statutes establish that if a couple entered into a common law marriage in a state where it was legal, and then moved to California, the marriage would continue to exist even in the absence of official documentation. Common law marriages cannot be created or recognized in California.
Common Questions about California’s Laws on Marriage
Does California recognize a common law marriage?
No. There is complete weight of authority establishing that there is no common law marriage in California. Furthermore, any claim of common law marriage in California would not be recognized as valid regardless of the time spent in a non-marital relationship. If you attempted to enter into a marriage, regardless of compliance with your state’s marriage requirements it would be void unless a judgment of annulment were obtained. California is one of the states that abolished the common law marriage and failed to provide a "grandfathering" provision. This means that even the parties who may have tried to contract a valid marriage prior to 1896 are not considered validly married unless a customary marriage was entered into.
If I am common law married in Texas and move to California, do I need to get a divorce before marrying another person in California?
No. As stated above, a valid marriage in Texas may not be voided in California unless you obtain an annulment. Therefore , you would be free to start a new marriage relationship in this state. It would be in your best interests to seek a qualified professional to assist you in preparing a petition to annul your non-marital relationship if the facts are appropriate.
If I am recognized as common law married in Nevada or Utah, is my marriage valid in California?
Yes. As stated above, a valid common law marriage ceremony contracted in a state that recognizes common law marriage, and properly registered in those states will be deemed valid here in California.
Does California Courts recognize common law marriage for purposes of dividing property upon the death of one of the parties?
If a Pierre married a Helen in their home state of Texas where common law marriage is recognized, and the two moved to California; and Pierre died without leaving a Will, then that union would still be considered valid and in force. Helen would inherit the entire 100% of his estate. A finding of a common law marriage in Texas is a determination of the existence of the marriage. The marriage in Texas was valid and the personal jurisdiction of that state provided the California courts with the authority to recognize the marriage.