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

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

Common law marriage in California
Does common law marriage still exist in California? Or is it invalid in every situation? We hope you enjoy this article that provides some helpful, general information on this topic.

Does common law marriage still exist in California? It’s a good question and one that is the subject of misunderstanding. We have heard or read others say that California never recognizes any type of common law marriage in any situation or other statements similar to that. But is that really true?

Keep reading. Obviously, this article is not legal advice. It only provides general information. If you need legal advice about your situation, please have a private consultation with an attorney. Also, this article only addresses general information about California law and not any other State or jurisdiction.

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 did that end mean California will never recognize any common law marriage regardless of the circumstances?

California may recognize a common law marriage in limited situations

The knee jerk statement that others advocate, “California does not recognize common law marriages under any circumstance” may not be entirely correct.

A formal marriage generally 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 may reject it.

But there may be 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 may recognize the marriage absent certain limited circumstances. Those limited circumstances are beyond the scope of this article.

So if, hypothetically, if another State in the union or even Country recognizes a common law marriage between a man and a woman which was entered there, and that hypothetical 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 may be disputed. For example, the woman may claim there is a valid common law marriage and the man may claim there is not a valid common law marriage. This is just one example. There may be disputes over a foreign country’s laws and whether or not California should recognize them on this issue. The Court ultimately has to figure it out and decide if there was a common law marriage under the laws of the other jurisdiction that California will recognize. No article can answer that question. That is why hiring a lawyer is so important.

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.

What may happen if there is no valid common law marriage but the man and woman still own assets together in California?

Let’s assume in a hypothetical situation there was never any common law marriage but the man and woman in California have joint bank accounts here, commingle their earnings, jointly pay debts or even hold property together in California. As a starting point, consider asking 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 or some other 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? Any discussion of Marvin or Palimony cases is beyond the scope of this article.
  5. Are there other claims?

These are just the starting questions for which you may need answers when you have a private consultation with an attorney. 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 issues pursuant to California’s paternity laws.

There may be domestic partnership laws in play and that is also beyond the scope of this article.

Legal advice from an attorney you hire is important on California common law marriage issues

Whether or not there is a proper common law marriage that should be recognized in California in your particular case is something you should talk to an attorney about in a private consultation and hire to get legal advice. You should also ask the attorney you hire what other rights you may have outside of the common law marriage issue.

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 also be vigilant in his or her defense of the issues. Once again, the experience of an attorney you hire who handles such matters and who can assess your case’s specific facts before you plan out what position you can take in the case and your chances of success is important.

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 in this article. Also, obviously, please do not leave requests for legal advice or questions in the comment section. Legal advice and answers to questions should come from a private consultation with an attorney.

We hope you enjoyed this article and the general information provided about California common law marriage issues. Check back with us often for additional interesting articles.

About the Author

B. Robert Farzad

B. Robert Farzad is the president of Farzad Family Law, APC. Mr. Farzad is actively involved in the firm's divorce and parentage ca...
Read More

Signup & related publications

Stay Up To Date

Contact Us

Contact Our

Experienced Family Law Attorneys

Contact Us

We do not handle family law matters outside of the seven Southern California counties. Please do not complete this form if your matter is not in or will not be in Southern California. By clicking submit, you authorize us to communicate with you by email. Completing this form does not create any attorney-client relationship.