Does Common Law Marriage Still Exist in California? Yes and No.

Common law marriage in California

Does common law marriage still exist in California? Did you know there are certain circumstances that common law marriages in California are recognized as valid? We wrote this article to give you the straight scoop.

Does common law marriage still exist in California? It’s a good question and one that is the subject of much misunderstanding. We have heard it all – “California never recognizes any common law marriage”, “men and women don’t have any support or property rights in California until they get married,” and it goes on. Is that true? Or are those who make such statements about common law marriage misinformed?

Keep reading.

Common law marriage in California and the Old versus New West

Marriage is a creature of statute in California. That means a valid marriage entered into the State of California requires that the husband and wife must go through the formal process of the marriage licensing and solemnization laws.

Why is that?

It’s the difference between the Old West and the New West. As California became a State in the Union and our society became more sophisticated and modern, laws were passed that regulated everyday life and traditions. As localities (towns and cities) lost power, the State gained it through those laws and regulations. One of those regulations was the end of common law marriage in California in the year 1895. But that end didn’t mean California will never recognize any common law marriage regardless of the circumstances.

California does recognize a common law marriage in limited situations

The knee jerk statement that others advocate, “California does not recognize common law marriages” is both wrong and lazy. It’s what lawyers state when they know the general rule but not the exceptions. Let’s be clear about what California law is on this subject.

A formal marriage cannot be created in the State of California by a man and a woman’s consent or cohabitation, alone. The key words regarding this law against common law marriage and its invalidity are “in the State of California”. Therefore, if a man and woman live in California and think they have created a common law marriage here by consent or cohabitation here, California courts will likely reject it.

But there is an important exception. California law also states that if a marriage is valid pursuant to the laws of the place, such as a State or foreign country, where the marriage occurred, then California will recognize the marriage absent certain limited circumstances.

So if, hypothetically, another State in the union or even Country recognizes a common law marriage between a man and a woman which was entered there, the man and woman have a proper marriage there through their “common law” status (whatever that may mean in that other jurisdiction) and that man and woman then move to California, guess what? California may recognize it too.

We wrote “may” because these issues are often disputed. For example, the common law wife may claim there is a valid common law marriage and the common law husband may not. The Court ultimately has to figure it out and decide if there was a common law marriage under the laws of the other jurisdiction.

Has a California common law marriage been recognized in a published CA appellate court decision?

It actually has. While it is uncommon (pun is partially intended), a common law marriage in Alabama was recognized in the State of California back in 1986. That is of course not the only instance it has happened but the case called “Marriage of Smyklo” was a published appellate court ruling and an important decision that verified the difference between an invalid, common law marriage in California and a valid common law marriage outside California that was recognized in this State.

But what happens if the man and woman act like a husband and wife in every way?

What about a situation where a man and woman hold themselves out as a husband and wife, have joint bank accounts, commingle their earnings, file joint tax returns, jointly pay debts and even hold property together but they never go as far as getting a proper marriage license or formally solemnize their marriage? Is that a proper common-law marriage in California?

Typically no. But have you asked yourself the following questions?

  1. Does the joint account give an equal right to the money within the account?
  2. Are either the man or woman listed as an alternate payee on a 401(k) or benefit holder to a pension?
  3. Does being on title to the real estate give an equal ownership interest in the house? Does the form of title, tenant in common or joint tenant, matter?
  4. Is there a Marvin claim, which are sometimes called “Palimony” cases?

These are just the starting questions for which you may need answers. Wills, trusts and estate planning concerns come up in such situations and, regardless of whether the man and woman are married, if they have children together, there will be child custody and child support rights pursuant to California’s paternity laws.

Got questions about whether your situation is a valid or invalid California common law marriage?

Nonmarital cohabitation does not mean the elimination of rights pursuant to California law regarding common law marriages. At the same time, a person facing such claims who has taken the position that there is no valid marriage and intends to advocate the Court cannot rule in favor of a common law marriage in the California case, must be vigilant in his or her defense of the issues. The experience of a family law attorney is important here, to assess your case’s specific facts before you plan out what position you can take in the case and your chances of success. At this time, our law firm is not taking on any cases that involve issues of common law marriage. When that changes, we will make an announcement about it.

We hope you enjoyed this article about our State’s common law marriage rules and regulations. Check back with us often for additional important and interesting articles. California divorce and family law cases is all we do.


  1. Gabriel says

    My Aunt was with my Uncle for over 30 years my Uncle who passed away about 5 years ago. I want to help my aunt who is having a hard time living with little income. My Aunt and Uncle were never married. But they have had 7 kids.
    my Cousins and myself have all been close since i was a lil boy my uncle was a good person and my aunt who treats me like im her son and Aunt who i respect more then anyone i would really like to get her Social Security from my unle can we do this ? Please let me know and this would help my Aunt.
    Thank you

      • sandy says

        I have been reading about this common law stuff and I have a question for you . I was with this man for 16 years we have two children together ..we did get married in a small church in Los Angeles California the pastor that married us never send in are papers to the hall of records my ex husband is saying we never married and because he has a new life in Las Vegas Nevada and from my understanding got married he feels he don’t own me a penny when it concerns me are children are a different story is there any thing I can do.. ..

        • says

          Sandy, please consult with an attorney about your situation. We don’t give legal advice in article comments. Just as it is written at the end of the article, we are currently not taking on any common law marriage cases.

  2. Regina says

    Insightful article about common law marriage in CA. I was just wondering if my daughter who has been living with a guy in CA for 5 years now, was legally married to him by common law. Apparently it takes MUCH MORE than that to be declared married in CA. THANXOMUCH!!

    • says

      I don’t understand your question. She is not married to him but they have lived together in CA for 5 years? That’s it? I would need more facts before I can comment. She would have to call us directly if she lives in Orange County or L.A. If not, please consult with an attorney who handles matters in her county.

  3. Elisa Capulong Tubig says

    my fiance and I were living together for 8 years and he passed away last year in Nov 2013. My question is, Am I entitle to collect his soc sec benefit since we lived together as husband and wife for the last eight years?

    • B. Robert Farzad says

      Such questions should be directed to an attorney experienced with social security benefits. We are family law lawyers. We don’t handle social security related matters.

  4. Sara says

    I’ve been living with the same man for 22 years. I was 16 & he was 20 when we met. Together we have 4 kids. We were never married. We are now seperating. The first 13 years I didn’t work I was a stay at home mother. I’ve now been working for the last 8 years. The house is under his name only & he has another property he acquired with his father while we were together. My name is not on a joint bank account because it’s a business acct so only his name is on it. I pay what I can such as health insurance for me & the kids, cell phones, car payment & garbage. He pays the remainder of things. Please tell me will I be entitled to anything if I fight?

    • B. Robert Farzad says

      Our firm can help with the child custody and child support issues only if your case is here in Orange County or Los Angeles, CA. Beyond that, you should consult with other attorneys for any other rights or issues. We cannot help with those because we don’t handle such matters nor can we comment about them.

  5. David says

    My partner and I are married traditionally through our family custom but are not legally married. She is trying to add me onto her work insurance but was told we had to go file a common law form and get it notarized which we did. Now the insurance is saying we have to legally get it approved through the state. Is that right. Please help

  6. Stacy says

    Hi. My friend just found out that man she is married to, living with, has children with, has another home with another woman. He and this other woman refer to each other as husband and wife. They did not have an actual wedding that she is aware of but they did write on paper some sort of declaration of marriage to each other. Is her husband committing bigamy?

    • B. Robert Farzad says

      We cannot give advice over a comment. If your friend is looking to hire an attorney for a family law related matter, and the matter would be in Orange County or Los Angeles, CA, have your friend call us please.

  7. Marilou says

    My ex-husband and I have been living together for the past 7 years. We live in California and we are back together as a husband and wife, however, we are legally divorced. He has me as his beneficiary on his will for the house where we live and other assets. Is that enough to have peace of mind and security or should I be aware of something else?

  8. Meg says

    I married my husband about 20 years ago in Iran. I received my Green card based upon the marriage to enter the US. Later on I received my American citizenship based on the continuation of the marriage. We have 2 kids, 17 and 10. We never registered our marriage in the US. We bought our house in both our names as a married couple. All the utilities of the house such as Electrical and so on are in his name. I lived in the same house with him for the last 14 years, since I came to the US in 2000.
    Now I want to separate from him and file for a divorce. Am I being recognized as his wife? Do I even file for a divorce to end the marriage? We live in Orange County and I really need your advice.

    • B. Robert Farzad says

      Meg, we cannot give advice on a comment to an article. Contact us please and we can schedule a consultation.

  9. marta garcia says

    I like to know more about the common law I at this present time and a relation that have been going on close to 20 years my concern is what to do and this case because there are some medical conditions.what to do?

  10. sumer says

    Me and my fiance planned to get married after being together for almost 10 years but tragically he was killed in a very bad car accident. Would it be possible for me to draw him social security because we were unable to make our marriage official?

    • B. Robert Farzad says

      I am so sorry to hear about your loss. Your question falls outside of our law practice. We handle divorce and paternity cases, not social security matters. Please consult with lawyers who are able to answer your question because we cannot.

  11. Erica says

    In 2004 I went to court with my ex for child support. We separated after living together 10 years he was trying to lower support and bad mouth me to the court when the judge asked him what I did the 10 years we where together he responded she stayed home and watched the kids. The judge order Alimony for 2 years. So I guess it’s up to the discretion of the judge.

  12. Vanessa says

    I was in a relationship for 10 years living together for 7 years we had a child. I wanted to know what are my rights for spousal support or insurance benefits that were covered by my ex fiancé. What are my rights?

  13. Annie says

    I got married 5 years ago and still currently living with him. Our marriage has been officiated and solemnized, the original marriage license was returned to the County Recorder’s office within 10 days by the Officiator of our marriage but was returned to us due to some technical mistake. The witness signed in the wrong box. However I didn’t return the original marriage license to the Country Record’s Office at all. I have the original marriage license. Is my marriage valid? Thanks.

    • B. Robert Farzad says

      Annie, we don’t give legal advice in a comment to an article. Please have a private consultation with an attorney to get answers to your questions.

  14. Betty says

    Hi my brother in law has been living with a woman for like 11 years they don’t have any bank accounts together or pay a mortgage together but they are having a baby now. I know that if anything she will get child support but if he has his own business and properties is she entitle to any of that?

    • B. Robert Farzad says

      Hi Betty, if your brother in law lives in California and his case would be in Orange County or L.A., have him call us please. We can’t give legal advice in a comment to an article. That would not be appropriate. I can discuss with him his options on these issues.

  15. bobbie says

    ive been with this man for 23 years but never married i was 20 years old and he was 53 years now he family put him in a rest home he is now 74 and im 44 years old and i what him home with me and he whats to be home to can i over step his sons and go get if

  16. Bitz says

    I lived with my finance for 5 years before we were married and we have been married for 6 years. TOTAL 11 years together. We are now divorcing. On Alimony – would I only get 3 years? Or would it be 5.5?

    Thank You!

    • B. Robert Farzad says

      Bitz, we don’t legal advice in a comment to an article. Please consult with an attorney for help. If your matter is in Orange County, you can contact us for an affordable initial strategy session to go over your questions.

  17. juanita says

    I have been with my partner for 17 years have ten kids with him we have bought everything together, we always agree that everything we buy was for our children’s as time has pass by he found someone else .we are not married but i really wanna know if we separated and leave one another and he takes everything that we bought together for our children’s can i do something about it .

    • B. Robert Farzad says

      Juanita, thank you for commenting. We don’t give legal advice in a comment to an article. As we wrote in the article, our firm is currently not taking on any common law marriage cases. Please consult with other attorneys. I wish you the best.

  18. Ericka says

    My husband and I have been together for 8 years living as husband and wife for 6 married for 2. We’ve filed taxes together and he has claimed my daughter for the 8 years. I’ve had major medical issues and he’s taken care of us for 6 years. We are getting a divorce I found out he has been cheating and in another relationship. He doesn’t want to pay me spousal support what can I do? Can you help me?

    • B. Robert Farzad says

      Erica, if your matter is in Orange County, you can contact us to set a time to talk. Outside of Orange County, please consult with an attorney who handles matters in the county in California you are in.

  19. Rebecca Z says

    My friend has been with a man for 20 years when she had a medical issue and could no longer work. He said since she no longer brings in an income she can leave. She had supported him and his son in the past and all of their property is jointly meshed together. She doesn’t know quite where to go for some assistance for rights or options.

  20. Kcoco says

    My mother was engaged to a gentlemen years ago. A house was bought in the OC where they both lived for no less than ten years together with the intent of marriage. The marriage never happened but the gentleman in question told my mother she would never have to worry about a home and that he would always take care of her. This was verbally stated. Eventually he moved out, leaving my mother to live there. She’s been in the house forty years. My mother has since found out that the house has been taken over by the gentleman’s sister and the sister is pushing my mom to leave. The gentleman has also refused to talk to my mom about it. My mom is not on the deed but has maintained the home and paid taxes on it up to a certain point until the gentleman started paying the taxes and insurance on his own. My mom is now retired and isn’t sure if she has rights to the home or any proceeds from it. Is there any kind of case there? Thank you.

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