Common Law Marriage Laws

A “Common Law marriage” is a type of legal marriage that may established in several states, not including California.

The term “Common Law,” in the term “Common Law marriage,” means that the marriage is derived from judicial precedent and custom, as opposed to being derived from statutory or religious law.

Common Law Marriage v. Statutory Marriage: A Common Law marriage is different than a non-Common Law marriage (statutory marriage) in that a Common Law marriage, if recognized, does not ordinarily require the spouses to have either a marriage ceremony, and/or obtain a marriage certificate.

Note: In order to legally marry another person in California, certain legal requirements must be met (i.e. ceremony, marriage license, marriage vows, etc.) [California Family Law Code Section 300 et seq.].

Important: A Common Law marriage cannot be obtained in California; however, this does not mean that a Common Law marriage is not recognized in California. On the contrary, a legal marriage, which is valid in the jurisdiction from where the spouses originate, including a Common Law marriage, may be recognized in California, so long as the marriage does not otherwise violate California law (i.e. incestuous marriage, bigamous marriage, underage marriage, marriage without consent, etc.).

The requirements needed to form a Common Law marriage vary from state to state; however, in general, the main requirements needed to form a Common Law marriage in many states include the following:

  1. The “spouses” must hold themselves out to the public as being married (i.e. informing third persons and/or agencies of a Common Law marriage, obtaining mortgages or credits cards as “married” person, keep joint bank account, comingle assets and monies, file joint tax returns, etc.);

  2. The “spouses” must agree to enter into a Common Law marriage (Not: A written agreement is not necessarily required in many states);

  3. Neither “spouse” may be married to a person outside the Common Law union at the time he or she agrees to enter into a Common Law marriage;

  4. The “spouses” must have cohabitated for at least two years (three to seven years for many states);

  5. The “spouses” must be at least eighteen (18) years old and not related by blood as prohibited by the state’s incest statutes (Note: Some states allow a Common Law marriage for a person under the age of eighteen (18) either with, or without parental consent and/or the minor’s emancipation).

Note: Notice how in the general Common Law marriage formation requirements listed above do not require either ceremony, or a marriage license before a two persons may legally form a Common Law marriage. However, keep in mind that Common Law marriage states have different requirements, and restrictions, that might apply to the legal formation of a Common Law marriage.

For example, some Common Law marriage states may view the filing of joint tax returns, or keeping the same last name as good evidence of “holding oneself out as being married,” while other states that recognize Common Law marriage may find that this evidence is not relevant to the issue of whether or not a person has held himself or herself out to be married.

Common Law Marriage as an Alternate Form of Marriage. States that recognize and allow Common Law marriages to form outside of statutory marriages will also have statutory marriage laws as well. In other words, states that allow Common Law marriages have two different means by which a couple may be legally married (Common Law marriage or Statutory Marriage).

List of Common Law Marriage States: States that recognize Common Law marriage include: Texas, Colorado, Iowa, Alabama, Kansas, Montana, District of Columbia, South Carolina, Utah, and Rhode Island. Also, some states have Common Law marriage statutes that only apply to persons who were married at Common Law on or before a certain date (i.e. Georgia [1997]; Idaho [1996]; Ohio [1991]; Pennsylvania [2005]; etc.). Finally, at least one state, Oklahoma, is still in flux as to whether or not a Common Law marriage is recognized after a certain date.

California & Common Law Marriage

As stated, California does not have a Common Law marriage statute. In other words, a Common Law marriage cannot be formed in California. This is true regardless of either the length of a romantic relationship between two persons, or the way in which those two persons hold themselves out to the public (i.e. as a married couple, taking mortgage or credit as “married” persons, etc.).

On the other hand, if a Common Law marriage was legally formed in another state that recognizes Common Law marriages, and those persons, who were legally married at Common Law, subsequently seek a California Divorce, then California law will treat those married persons as having been married under California law (with some limitations) [California Family Law Code Section 308 (Abbrev. & Summarized)].

For example, if husband and wife were married at Common Law in Texas (a state that recognizes Common Law marriage), and husband and wife move to California after forming their Common Law marriage, then the California family law courts will recognize husband and wife’s marriage as though they were statutorily married (with some limitations).

California Common Law Myth: At one time, California allowed a couple to form a Common Law marriage in California. However, the last Common Law marriage formed in California was over a hundred years ago (1895). Nevertheless, there is a common myth that remains that Common Law marriages may be formed in California.

For example, if Dan (boyfriend) and Lisa (girlfriend) hold themselves out as being married to one another for twenty-years their relationship will not somehow turn into a legal marriage…at least not in California. This is true even if Dan and Lisa share joint bank accounts, acquire joint debt, buy joint property, have biological children together, tell family, friends, and/or government agencies that they are married, live together for many years, and/or actually believe that they are married to each other.  

Common Law Marriages & California Divorce

If a marriage was legally formed at Common Law, and the parties to that Common Law marriage subsequently seek a California divorce or legal separation, then the parties must prove to the family law court that they entered into a legal Common Law marriage before the California judge will discuss divorce issues.

However, once the issue of a legal Common Law marriage is resolved by the family law court, then the family law court may discuss all other divorce and legal separation related issues with the parties, including, but not limited to: division of community property and/or community debt, spousal support (alimony), prenuptial and post-nuptial agreements, if any, etc.

Common Law Marriage and Child Custody

Child custody issues are not related to Common Law marriage issues; therefore, a person may seek child custody, child visitation (parenting time), and child support regardless of whether or not the child’s legal parents were married, never married, or divorced.

For example, if husband and wife were legally married at Common Law in Texas, and the married couple had a child born during the Common Law marriage, then the California family law courts will presume that the child born during the Common Law marriage is the biological child of the husband (similar to a statutory marriage established in California). On the other hand, if the married couples’ Common Law marriage is found to be invalid for some reason, then the child’s father may seek paternity through a parentage action in California (Paternity Suit). A successful paternity petition by father will allow the child’s father to pursue rights to his child (i.e. child support, child custody, child visitation, etc.). This is true even if the child’s parents’ were never married, or married at Common Law but that Common Law marriage is not recognized in California for some reason.

Invalid Common Law Marriage Issues: If a California family law court finds that the parties’ “marriage” was not legally formed at Common Law (in a state outside of California), then the parties may still have some legal remedies available if they believed their Common Law marriage was valid. These legal remedies might be similar to the remedies available to legally married spouses (i.e. rights to division of community property, spousal support, etc.).

Note: A person who reasonably believes that he or she is actually married, when in fact he or she is not legally married, may be entitled to “putative” spouse rights. In order to have putative spouse rights, the person who believed that he or she was married must hold that belief both subjectively (actually believed), and objectively (reasonably person would have believed). Putative spouse equitable relief is intended to stop an injustice that would otherwise result if the party was not granted putative spouse status (loss of rights established by legal marriage).

Essentially, a litigant to a California divorce or legal separation case, who reasonably believed that he or she was legally married by Common Law from another jurisdiction, might be entitled to “putative spouse” status. As stated, a “putative spouse” is a person who reasonably believed that he or she was legally married, and because of that reasonably belief, he or she has suffered legal detriment. Putative spouses might be entitled to an equitable division of property and/or debt that was acquired during the reasonably presumed-to-be-valid marriage. Also, a putative spouse might be entitled to spousal support equivalent awards.

For example, if husband and wife genuinely and reasonably believed that they were married at Common Law from the state of Texas, but the California divorce court subsequently declares that their Common Law marriage from Texas was not legally formed, then husband and wife may nevertheless be entitled to a division of property and debts acquired during the presumed marriage so that equity may further the interest of justice.

Note: In the above example, both the husband and wife would be putative spouses. However, if one spouse knew, or reasonably should have known that his or her “marriage” was not legal under Common Law, then that spouse is not a putative spouse and he or she should not be entitled to an equitable division of property and/or debts acquired during the presumed-to-be-valid Common Law marriage. Putative spouse status is commonly associated with either Common Law marriages that are not recognized in California for some technical reason(s), or after a spouse files for annulment based on a void or voidable marriage (bigamous marriage, incestuous marriage, etc.).

Property Rights of Unmarried Couples

As stated, a Common Law marriage cannot be formed in California. However, this fact does not mean that a legally unmarried couple who hold themselves out as being legally married have no property rights. It simply means that their respective property rights and obligation, if any, are not established under California family law statutes; rather, an unmarried couples’ property rights, if any, are established in civil court using civil law to resolve the couples’ respective property rights. (Note: There are limited exception(s) for person who are granted “putative spouse” status. See above).

For example, an unmarried couple, regardless of their respective belief(s) to the contrary, have equal rights and responsibilities to his or her legal child (i.e. right to establish paternity, right to raise and rear child, right to object to a child name change, etc.). Also, an unmarried couple may take out mortgages together, buy property together, assume debt together, and more.

Dispute as to Common Law Marriage

It is not uncommon for one party to a divorce or legal separation to deny Common Law marriage status, while the other party to the same divorce or legal separation seeks to affirm their Common Law marriage status.

Example: During a California divorce, if husband seeks spousal support from his wife, who he married at Common Law from another state, then wife might want to assert that their Common Law marriage from that other is invalid for some reasons (i.e. legal and/or technical issues). If wife is successful, then husband will not be entitled to spousal support because spousal support is only appropriate in cases where the parties were legally married.

Note: Using the example above, if a California family law judge finds that husband has “putative” spouse status (good faith belief that he was married at Common Law), then the California judge may grant an award to husband, which is equal to what husband’s rights would have been had he been legally married.  

Collateral Issues: Whether or not a Common Law marriage is legally recognized in California could have a major impact on issues collateral to divorce or legal separation, including, but not limited to, the following: civil lawsuits and agency liability (tortious conduct committed by one spouse during marriage which carries liability for both spouse), presumption of fatherhood, estate planning and inheritance rights, end of life decisions, privilege (marital and spousal privilege against compelled testimony against a spouse), right to adopt a stepchild by a legal stepparent, and more.

For more information on Common Law marriages as they relate to California divorce and family law issues, including the rights and responsibilities of persons married at Common Law, contact our divorce and family law attorneys today for a free consultation.

Our family law lawyers have successfully handled hundreds of family law issues and cases in the Inland Empire, including Domestic Violence Restraining Orders (DVRO), juvenile dependency hearings, child custody, fathers’ rights, grandparents’ rights, paternity suits (parentage actions), child protective service (CPS) defense, prenuptial agreements, and more. Our offices are conveniently located in the heart of San Bernardino County, near Redlands, Fontana, Yucaipa, Rialto, Colton, Ontario, Rancho Cucamonga, Upland, Victorville, Riverside, and more. Call today!

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