What is a Common Law Marriage?
Common Law Marriage is a judge made doctrine. It is based upon an intention, by both parties, to be husband and wife and an agreement to that effect. Cohabitation without such an intention and an agreement to that effect will not be sufficient to create a common law marriage.
It is interesting to note that common law marriage is so seldom recognized that the rules are said to be unsettled on when it is created and proved. In many cases a party seeking to establish marriage by common law must stand by the now absolutely dominant rule that there is no common law marriage in the state of California.
In general, it may be said that a common law marriage is a relationship resulting from an informal contract that two parties (1) intend to enter into and have entered into; (2) in which they hold themselves out to the world as husband and wife and (4) to which others may properly relate for all purposes of law .
In California, the Marriage Law does not provide for common law marriages, and those entering into such a marriage cannot do so in California. The status of a common law marriage in California is that of single person. If such a marriage is entered into in California, it is without any effect. This being the case, the Courts have held that such a marriage can exist outside of California, and when such marriage is valid in another state, it will be honored and recognized in California.
The requirement to establishing that there is, at least, a rebuttable presumption that the parties at this time are a husband and wife, is that they have entered into a marriage in another state that allows a common law marriage.
Does California Have Common Law Marriage?
California does not recognize common law marriage. There are some historical cases from more than 100 years ago where courts appear to have granted property rights to "common law" spouses, but no living California court has ever expressly granted property rights based on such a relationship.
Common law marriage in California is so rare that it has become an urban legend. In the few places where common law marriage actually exists (such as Texas and New Hampshire), the requirements are that you must have lived together for several years, have held yourselves out as husband and wife, and you must want to be married.
That last requirement is important. If you did not want to marry and you were just living together during a "trial period," you were not married and do not have the rights of a married couple. You were "cohabiting," which means you lived together and had sexual relations, but you were not married.
In 2014, the California Court of Appeal was asked to determine whether a trial court erred in denying a partner’s request for a divorce. The couple was together for many years and had a child together, but neither party wanted to be married. They argued whether cohabiting together could be a marriage in California. The court denied the motion for dissolution and found no marriage had occurred between the two parties. The Appellate Court upheld the lower court’s ruling.
Despite popular belief that domestic partnerships grant similar property rights to married couples, California does not legally recognize domestic partnerships the way it recognizes marriages. You and your partner may have taken steps to act like a married couple, but if you never wanted to enter into a legal marriage, you probably were not married, common law or otherwise.
A cohabiting couple may still create some rights for themselves if they act with the intent to be married in another state and satisfy that state’s laws. As long as the intent to create a marriage exists, a couple may be considered "married" in a different state. California courts generally recognize the laws of other states, so if you qualify as married in Texas or another state that does recognize common law marriage, you might qualify as married in California, too.
There are some exceptions where a court will consider that a common law marriage has occurred. For instance, if a boyfriend and a girlfriend live together and participate in a ceremonial marriage in a state that does not recognize marriage, they will be seen as married in California, as long as their intent to be married is present.
However, if California courts recognize common law marriages under certain circumstances, why do domestic partnerships not get similar treatment?
In California, there is a concept commonly known as a "spousal rape exception." If a woman were to claim her husband raped her but she already had a legal separation from him, he would have the right to continue to live in the house because of that legal separation. The spousal rape exception recognizes that marriage does not end because the parties separate. This exception extends to domestic partners and same-sex marriages because the same rights and obligations exist for domestic partners as they do for married couples.
Implications for Couples Who Live in California
Even though California does not recognize common law marriage, living as unmarried domestic partners in California still carries many legal implications with it. A couple who has lived together for a period of time may assume that they are considered legally married under common law, when in fact they aren’t – at least not in California. Even so, there are certain laws that apply to unmarried couples, particularly those that they should be aware of if they own property together or have children.
Separate Property
In California a property, including earned and acquired property, that was purchased by one partner individually before the couple started living together is called "separate property." On the other hand, anything that earned during the couple’s time together is considered "community property." Many assumptions can be made about who owns what if the couple should ever decide to divorce.
For property purchased during the time that a couple is together, the law will presume it is community property belonging equally to both partners rather than separate property belonging to only one. In California, the only way to break this presumption is if one partner can produce a significantly large enough amount of evidence contrary to this assumption.
However, a couple can work together to create an agreement that either distinguishes who owns what, or reminds them that everything is equally owned and shared. Both common law and legally married couples can benefit from this type of written agreement.
Children
In a common law marriage, if a couple has children together, the mother’s husband is understood to be the legal father of the child. In California, however, the mother’s husband is not automatically assumed to be the legal father of the child. Instead, the married names of the parents are shown on the birth certificate, and in the case of common law marriage or partnership, additional steps are required to establish paternity.
Alternatives to Common Law Marriage in California
While there is no common law marriage in California, there are some legal alternatives that may be entered into by couples who are committed to one another. For registered domestic partnerships, the rights and responsibilities of a domestic partner are virtually the same as those of a married spouse. This means that property acquired during the partnership and income earned during the partnership will very likely be considered community property under California family law, which allows the courts to divide community property equally in the event of a divorce or separation.
Cohabitation agreements may also help couples to define their rights and responsibilities if the state will not recognize them as a married couple . Cohabitation agreements can be used to establish joint ownership of property, details regarding financial obligations, rights to live in a residence, parental rights under a surrogate system, child custody and visitation and the incentive to marry.
In the event that a couple does not wish to marry but has been living together for an extended period of time, the couple does have the option to establish co-ownership over their property through a joint tenancy agreement. If, however, they do not have a joint tenancy agreement, then California’s laws regarding intestate succession will determine how the jointly owned property will be distributed in the event of the death of one of the parties. These laws state that property will automatically be passed on to the spouse.
Inter State Concerns: Moving to California When You Are Already In A Common Law Marriage
In the event that people with common law marriages recognized in other states move to California, this again is one of those spots where it is important to have a lawyer. Even if the common law marriage is currently valid in the prior state, it may not be valid when the parties come to California. California law has reverted back to the position it occupied before the change in the Family Code, which validated common law marriages contracted in 1969 or later. In 1995, the California Supreme Court ruled that the primary purpose of California’s ban against common law marriages was to protect the safety and stability of the family unit. Therefore, allowing common law marriages in California would not serve the purpose of protecting individuals in existing marriages.
Nonetheless, if the marriage occurred prior to 1969, the couple may have a strong argument that California should now recognize the marriage notwithstanding the change in Family Code. Generally, if a marriage is valid in the state in which it occurred and the parties move to a state that does not recognize common law marriage, the marriage will still be recognized by the new state. However, if the new state expressly prohibits recognition of common law marriages, California is one of the few states that has such a law.
So, for example, if the couple in question moved to California this year, they would find that their marriage was invalid in California.
Legal Guidance for Unmarried Couples Who Live in California
A legal professional experienced in family law can be key to protecting your rights as an unmarried couple. While California does not recognize common law marriage, as noted above, the Family Code does enforce marital and spousal legal obligations in the event that an unmarried couple does receive marriage, registered domestic partnership, or similar status in another state or jurisdiction. The property division process that takes place in the event an unmarried couple enters into a registered partnership, such as the domestic partnership created by California, and later dissolves is similar to that of a traditional divorce . Shared properties purchased during the course of a relationship must be divided based on what is determined to be community property, and separate properties must be awarded based on what the courts deem to be separate assets.
Because the is no universal definition of what constitutes a marriage-like relationship under the law, unmarried couples must rely on the courts to determine property and obligation distribution in the event of a dissolution. If your relationship has recently ended, or you are seeking legal advice about your rights in the event a disagreement arises with your partner, a family attorney is an indispensable resource.
