A Closer Look at Common Law Marriage
Common law marriage is a state law concept. The short answer to this question for California is no. Does that mean that a couple cannot hold themselves out as married under some circumstances? No.
For example, if one spouse marries another in Nevada and then the family moves to California, California may not recognize the marriage as valid. Unlike many other states, California does not recognize common law marriage. A common law marriage generally means that nothing more is required than two people intend to be married and hold themselves out to the public as such. Historically, most common law marriages occurred in the 1800s when common law marriage was recognized in most states. Common law marriages are primarily discussed by probate attorneys, divorce attorneys, and inheritance attorneys.
Technically speaking, there is no common law marriage in California. Section 308.5 of the Family Code states that California does not recognize a common law marriage. The state of California has repeatedly decided that a common law marriage does not exist here. Assuming two people reside in California, and neither person traveled to Nevada to marry there, the common law marriage will not be recognized in California.
There are some limited exceptions to Section 308.5. For example , if two people entered into a common law marriage, and then the marriage was valid under another state’s law, the marriage is valid in California. A common law marriage entered into during the 1800s would be valid in California literally, if the couple entered into the marriage during the 1800s and California still had common law marriages. Lastly, Section 121 of the Probate Code mentions common law marriages, and states that legal marriages may be formed in other states if they comply with the law of the state where the parties entered into a marriage. The language of Section 121 appears quite broad, but in other areas it has been limited to "hereinafter" or challenges to a will.
In California, couples have options other than marriage. Couples may enter into a Registered Domestic Partnership, which has limited application and is not available to opposite-sex couples, or a Confidential Marriage License, which is available to all couples. The option for people interested in a common law marriage is a "cohabitation agreement." A good attorney can help people craft common law marriage-type agreements that address many of the same concerns a couple is trying to address through a common law marriage.
California’s Position on Common Law Marriage
California is among the majority of states that do not recognize common law marriage, meaning that no matter how long two people live together as a married couple, they are not legally considered married unless they have gone through a state-sanctioned marriage ceremony and obtained a marriage license from the county in which they have filed for or intend to file for a marriage license. An exception exists for a very small number of individuals who were legally married under the common law provisions before 1896, when California enacted laws abolishing common law marriage.
California Family Code sections 300-317 contain the major provisions regulating marriage, including in section 300: "Marriage is a personal relation arising out of a civil contract, to which the consent of the parties capable of making that contract is necessary." Pursuant to section 310, "Marriage is instituted by the mere consent of the parties competent to contract, and is completed by issuance of a license and its issuance and solemnization." Since 1896, the only way to enter into a valid marriage is through the issuance of a marriage license and a wedding ceremony. This does not subvert the principle that marriage is a personal and mutually consented to relationship; rather, the state has determined that it will only recognize relationships that have met the requirements of sections 310 and 311, and not prior relationships.
In re Marriage of McColgan, 267 Cal. App. 2d 336, 72 Cal. Rptr. 491 (Cal. Ct. App. 1968), illustrates the need for strict adherence to the procedural requirements of the California Family Code. In McColgan, the husband claimed to have married the wife and have acquired community property prior to the one day delay until the public marriage license was issued and the religious ceremony was performed. The husband attempted to take half of the formerly assessed divorce and community property as his share. Even though the court acknowledged that there were a number of facts that would allow the inference that husband intended to marry wife, including psychological counseling, use of the wife’s married name, spouse and husband insurance, but concluded: "It is not enough to establish clear and convincing proof of an agreement to marry subsequent to a marriage void because it did not comply with the provisions of the Statute of Frauds." (Citations omitted).
Bennett v. Bennett, 41 Cal. 2d 819, 264 P.2d 317 (Cal. 1953), was the first case that addressed the issue of whether common law marriage could be recognized in California. At the time of the decision, common law marriage was recognized in 40 states, but not California.
The parties in Bennett entered into a common law marriage in 1945 and were in Arizona. At the time of the common law marriage, the parties had two children together. In 1947, the family moved from Arizona and spent time in Florida, New Jersey, and then Washington in 1951. The wife filed for divorce in Washington in 1951, and the divorce decree was entered in 1952. The decree incorporated the terms of the couple’s property settlement agreement, which provided for the division of their property and the custody of the parties’ two children. Thereafter, in 1948, the wife had married another man in Nevada; however, both parties operated under the assumption that the first marriage was still in effect. The second husband died in 1952, and then the wife moved with the children and parents to California. The husband then filed a suit in California seeking to have the California courts recognize that a valid common law marriage existed between the parties and that he was entitled to a half share of the couple’s community property.
The California Supreme Court stated that although a common law marriage may be considered valid if entered into in another state, California will not by comity enforce such a common law marriage. The husband in the case argued: "if after his divorce and the death of his second wife he truly believed that he was married to his first wife at the time he obtained a ruling that there was a marriage, California should enforce that ruling and also the divorce settlement agreement." However, the court concluded that this would be contrary to the policy of California law. The court noted that the lower court had overlooked the rule that the declaration of a marriage when there is no valid marriage is a nullity, and therefore, the settlement agreement was a nullity as well. The court concluded: "We must, therefore, reject the suggestion that since the parties entered into the separation agreement upon the faith of such an agreement and must now be rigidly bound by it without consideration of its legal validity, the agreement should be enforced. To give effect to the illegal agreement would be to set an example for the future that no rule of law is unequivocal or inflexible, that the courts enforce all contracts valid in some amounts in whatever may be the consequences of the enforcement of the invalid portions of the agreement. To so hold would be to set aside ‘the necessary security to life, limb, health and comfort of society,’ and to make ‘the whole morality of the law … a matter of accident and conjecture.’"
Recognized Exceptions in Other States
It is important to note that California is not completely rigid with respect to the notion of common law marriage. There are some exceptions when a marriage has been established in another state or at least recognized in another state. These situations involve either:
(a) parties who entered into a legal marriage in a jurisdiction that allowed for common law marriage, or
(b) parties who would have been able to enter into a legal marriage in a jurisdiction that allowed for common law marriage but did not do so.
Therefore, in limited situations, California recognizes common law marriages that were either established or would have been allowed in other states which grant marriage rights to couples living together and holding themselves out as a married couple. Obviously, this rule provides a major exception; however, it is not as expansive as one might think.
Alternative Processes Involved in Common Law Marriage in California
The absence of common law marriage and its disqualification, however, does not mean that couples who live together in California have no legal rights as married couples. For example, domestic partnerships, cohabitation agreements, and cohabitation without a cohabitation agreement all affect legal rights of couples and may entitle them to property rights should they separate.
Domestic Partnership
The Domestic Partner Rights and Responsibilities Act was signed into law on 1 January 2005, creating domestic partnership in California. The law gave same-sex couples the same rights under California law as married couples, except that federal law still forbids same-sex couples from filing joint taxes. Under this law, domestic partners are responsible for supporting one another financially, and upon termination of the partnership, they divide property in the same way that divorcing spouses divide marital property. Couples can enter into a domestic partnership by filing a declaration of domestic partnership with the Secretary of State. If a couple files the declaration of domestic partnership and their domestic partnership is legally recognized, they can expect to receive spousal support similar to divorce.
Cohabitation Agreement
Couples who are not legally married may enter into a cohabitation agreement to determine what will happen to their property should they break up or separate. It may state how assets and debts are to be divided and how couples will support one another during the relationship. In addition, a cohabitation agreement provides for how children born to the couple will be supported financially and how custody will be handled. Couples can also agree to dissolve the cohabitation in a specific way should one of them choose to leave the relationship.
Cohabitation without Cohabitation Agreement
If a couple chooses to cohabitate without a cohabitation agreement, California law will classify their property as separate. If no children are involved in the breakup, the couple will each take their own property and debts at the end of the relationship. If a child of the couple is involved, the courts may, in some cases, award spousal support if the non-biological parent can prove that he or she contributed substantially to the raising of the child.
Legal Considerations for Couples Living in California
Couples who mistakenly think that they have formed a common law marriage prior to getting married in the state of California may have difficulty when attempting to divide property acquired during their cohabitation with the same expectations they would have had if they had been validly married. In addition , a court may not award support based on the fact that the parties had cohabited as a married couple when neither held a good faith belief that the relationship was in fact validly contracted in the state of California.
Courts only recognize a division of property if the parties were actually married under the law. This means that they cannot simply divide property based on what they think is fair. With regard to support the same is true. A court will not grant support based on what it believes is fair or the type of spousal support that would be granted based on the length of marriage if the parties never gained a valid marriage.
Couples need to know the law when it comes to cohabitation.
Protecting the Rights of Unmarried Couples
When getting married is not an option for you and your partner, it is time to consider what actions you could take to protect the best interests of both of you. Unmarried couples do not have the same legal rights as married couples, so they need to be proactive and take steps in order to protect themselves if they were to separate or if one of them were to die. In general, it is much more difficult for unmarried couples to prove financial co-dependency than it is for married couples. However, there are a few general guidelines that many courts will follow:
- If someone in the couple (A) dies, then property that A acquired before B died belongs to A (besides property that A acquired with B, which is community property). Basically the estate of A will be liable for the debts of A. Property acquired after A and B began living together may be considered community property. If A and B cannot prove that any property that was purchased after they began living together should be split, then any property purchased after that time (and before they separate) is considered community property and is evenly split. Property purchased during the relationship is generally considered to be jointly owned even if it is only in either A’s or B’s name. So, when buying property, each person should either co-sign on any purchases or clearly label them as belonging to either A or B. The clearer you are about whose property is whose, the easier it is on the court.
- Someone (A) has a child but is unmarried. The other parent (B) is not entitled to any inheritance from A if A dies. A can name whomever he/she wants in a will. Additionally, B will not receive anything from A if A dies. Therefore, if A has designated a person to receive an inheritance and later wants to change that, A needs to clearly revoke his/her decision and grant the change period by hand delivery or certified mail. B cannot claim A’s estate or compete for the inheritance by making a claim. Note that if A and B have a child together, B does have an obligation to provide support for the child but B cannot make claims on A’s estate.
- If A and B have children together while unmarried, then property acquired during the relationship and before the child is 18 years of age is community property. Therefore, most property acquired is community property before the child is 18. Property after the 18th birthday is separate unless a court has granted that property as community property in an order.
- A and B need to have written agreements stating that they are not spouses and do not intend to be spouses. This may seem obvious, but it is very important. These contracts give third parties (such as heirs, creditors, etc.) evidence that A and B are not a married couple. Also, these two agreements should be revocable.
The above guidelines can be very useful for unmarried couples to follow- but to be certain that their best interests are protected, it is always a good idea to consult an attorney.
Consulting an Attorney
Couples living together in California often wonder whether they can enjoy the same legal rights as those who have been legally married. If you are one of the many who prefer common law marriage for its perceived advantages, you may find that the lack of legal protection can put your financial security at risk, especially if your significant other has been hiding assets or racking up debt behind your back.
You may not have a legal claim to your partner’s income and assets. If the relationship ends, you probably cannot even claim spousal support. Moreover, if your partner files for bankruptcy, your individual assets are at risk, even if those assets were used only for the benefit of the relationship.
Employing a family law attorney is vital if you and your partner are considering your options or if you think he or she may try to leave you holding the bag. You have worked hard for your money, and the risks of simply going along with an arrangement without legal advice are far too high .
If you and your partner are experiencing problems, a family law attorney can provide objective guidance. Without an attorney, the stress that comes with any divorce process may lead you to make decisions that are seriously contrary to your best interests. Besides guiding you through the issue of equitable distribution, your lawyer can also help you with issues such as child support and custody, spousal support, and even prenuptial agreements, which are becoming more and more common.
Because California courts have continually supported signed premarital agreements, drafting such contracts early on is also smart. An attorney can explain the different forms of prenups and what types of arrangements might be amenable to you and your partner. Your lawyer can explain the laws in your area and help you decide if living apart and having separate bank accounts may be the best strategy for your peace of mind.