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?
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?
- Does the joint account give an equal right to the money within the account?
- Are either the man or woman listed as an alternate payee on a 401(k) or benefit holder to a pension?
- 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?
- 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.