What is Common Law Marriage?
For a union to be considered a legal marriage in the U.S., a ceremony must take place with both partners having the intent to be married. However, in the 12 states that do recognize common law marriages, the law defines a legal marriage as the informal mutual agreement between two people to live as husband and wife and the holding out of their relationship to the public as a marriage.
In these jurisdictions, a couple must fulfill specific requirements to successfully establish a common law marriage . Although the requirements may vary between jurisdictions, all require that the couple: Once a common law marriage is validly established under state law, the parties generally have the same rights and obligations as a statutorily married couple, and thus, may address issues such as spousal support, property division, guardianship and adoption. However, no common law marriage may be established if one of the parties was previously married and has not yet had that prior marriage legally terminated.
Does California Recognize Common Law Marriage?
Considered a vestige of times past, common law marriage has not existed in California since 1896. Simply stated, it was the previous legal approval process in California. Through this process, parties could marry simply by entering into a contract of marriage and living together as husband and wife. According to the courts, "a common law marriage requires a mutual agreement, followed by acts of consummation, and any obstacles to the marriage must be removed." Woodall v. Woodall, 71 Cal. App. 20, 213 (1925).
California ended its approval of common law marriage in 1905 when the state severed its ties with the Church and made divorces and marriages issues only available through state authorization. Up to that point, county officials would approve marriages and divorces.
Common law marriage was first recognized in the United States in the 12th century. The early process began with the rite of jus matrimonii, which was performed by the clergy. This was then followed by the act of cohabitation. This process set the standard for cohabitating couples who wanted to wed.
Some Still Believe in Common Law Marriage
The concept of common law marriage diminished from the 12th century into the 20th century because of the intervention of governmental regulation. Unfortunately, many people still believe that the marriage still exists.
While Woodall v. Woodall provided the definition of a common law marriage, it continued to allow for its use. However, other courts followed suit. In 1896, the California Supreme Court decided in Alviso v. Pacific Rolling Mill that a common law marriage in California was valid only if all five of these criteria were fulfilled:
• Capacity to marry
• Consent
• Cohabitation
• Holding out to be married
• Conduct to carry out the agreement
The Previous Approval Process
Through the previous process, there was a separation between marriage and marriage licenses with just a certificate of marriage used in place of marriage licenses. By the 1800s, marriage license contracts were standardized.
Anthropologists state that the institution of common law marriage was adopted in the British Isles around 850 B.C. Then, in the 13th century, Pope Innocent III recognized marriage as a sacrament.
The establishment of marriage certificates in 1637 was the beginning of the gradual break between marriage and the Church in the Western world. At the time, marriage was a religious sacrament. At the turn of the 20th century, it was viewed as a civil contract.
In California, the previous approval process required marriages to have a ministerial officiant. Without this officiant, marriage was not valid. There are two important exceptions to the officiant requirement: royalty and Quaker couples. Both groups obtained exemptions from government regulations.
The Future of Common Law Marriage in California
A California common law marriage is not a legally recognized option for couples who want to be together in the eyes of the law. However, you can enter into a domestic partnership, which grants you the same rights as couples who marry.
Recognizing Common Law Marriages from Other States
Even though California does not recognize common law marriages that were initiated in the state, there are circumstances in which California courts will recognize an out-of-state common law marriage. Those factors include:
EXISTENCE OF COMMON LAW MARRIAGE IN OTHER STATE. The first condition that must be met is that in order for California to recognize a common law marriage that was entered into in another state, such a marriage must have been valid at the time of establishment under the laws of the state in which it was entered into. This means that the common law marriage must have been legally recognized under the laws of the other state in order to be recognized in California.
REQUISITE COMMITMENT. The second condition that must be met is that there must have been an express or implied mutual consent to enter into the marriage contractual relationship. The Courts will consider all facts and circumstances under which the parties lived in order to determine whether a marriage was actually contracted.
COMMON RESIDENCE. The third condition that must be met is that both parties must have continuously cohabitated up to the time that the common law marriage was contested, and the couple must have been living together in the same village, town or city for the purpose of creating the marriage relationship which was intended.
As long as the three conditions set forth above are met, any common law marriage contracted in another state will be recognized by California.
The Effect on Couples in California
California does not recognize common law marriage. California Family Code Section 308.5 states, "No common law marriage contracted outside of California is valid in California." This law applies to registered domestic partnerships as well.
However, there are still important legal implications for cohabitating couples in California. Even if cohabitating couples do not have the same rights and responsibilities as married couples, they do have certain rights and responsibilities because they live together. For example, if the cohabitating couple decides to purchase a home together while living together, they will own the property as "tenants in common" or "joint tenants" depending on how it is deeded. While cohabitating couples can agree to otherwise, a tenant in common has a right to the entire property, no matter what percentage of ownership that person owns, subject to the payment of property taxes. Accordingly, a tenant in common cannot be forced out of the property by another tenant . The joint tenants status is slightly different; however, the basic rule is that a joint tenant cannot be forced out by the other joint tenant and is entitled to his/her share of the property upon dissolution.
This example typifies an important distinction between married couples and those who simply live together: married couples are subject to California’s community property laws, whereby property acquired during the marriage is deemed to belong to both parties 50/50, while unmarried cohabitating couples can specifically agree among themselves regarding ownership of property without being subject to community property laws.
Similarly, if the cohabitating couple has children, those children will have the same rights as children born to married parents. If the couple has no children, however, and terminates their living arrangement, the time period that they lived together will have no bearing on the division of the property.
Common Law Marriage Alternatives in California
Although common law marriage is not a legal option in California, there are alternative legal structures available to unwed couples seeking legal recognition of their relationships. One of the primary alternatives to common law marriage is the domestic partnership. Under the Domestic Partner Rights and Responsibilities Act (DNPA), same-sex and heterosexual couples may register their relationship with the California Secretary of State. Registered domestic partners generally have the same state law rights and obligations as legally married couples.
Since 2005, domestic partners have had all of the same substantive rights and responsibilities as spouses under California law, with the exception of adoption. In order to adopt a child as a couple, registered domestic consider obtaining a court-ordered step-parent adoption. In order for a step-parent adoption to occur, there must be a legal parent-child relationship between the parent and the child. After the adoption has been finalized, the step-parent is treated as a registered domestic partner.
In addition to domestic partnership , cohabitation agreements provide legal rights to unmarried couples. Cohabitation agreements are contracts made by unwed couples that outline rights and responsibilities regarding assets, debts and income. Cohabitation agreements may be governed by certain state laws such as the California Family Code or the Uniform Premarital Agreement Act.
Cohabitation agreements can help sort out issues that would otherwise be settled in divorce court. Cohabitation agreements may include agreement concerning:
While a cohabitation agreement does not confer legal recognition to the relationship, it does hold each partner accountable if a dispute arises. Cohabitation agreements can be beneficial so long as both partners have the opportunity to consult with independent counsel before establishing the agreement.
In addition to domestic partnerships and cohabitation agreements, unmarried couples should also consider estate planning documents such as a will, trust and power of attorney. Failure to do so can result in unintentionally estranging a partner from estate assets.