Common Law Marriage Explained
Common law marriage are those recognized by certain jurisdictions when a couple has not received a formal marriage license but live together and behave as if they were married. While the criteria for recognizing common law marriage differs among jurisdictions, a common law marriage must almost always satisfy the following three conditions:
- Consent that the couple consider themselves married
- Cohabitation for a set period of time
- Holding out to others that the couple is married
The origins of common law marriage can be traced back to England in the 13th century. At that time, the church sought to protect the solemnization of marriage and its associated legal consequences. As explained by LoveToKnow: In those days, most marriages were solemnized in church ceremonies, after which the parties involved were fully recognized under law as having exchanged vows . However, in some situations, such as when a priest was not available, it was possible for a couple to be considered lawfully married even though no formal ceremony took place between them.
Various states in America continued this tradition, allowing couples to marry by mutual consent after living together for a certain period of time. Some of these states, including Texas, Oklahoma, and Kansas, still recognize common law marriages as valid.
Unlike California, many states that do recognize common law marriages have strict standards concerning proof of marriage. For example, the Texas Supreme Court has consistently ruled that Texas recognizes common-law marriage only if three elements are met:
- (1) There exist an agreement between the parties to be married;
- (2) The parties afterwards live together in this state as husband and wife; and
- (3) They hold themselves out to others as married.
California and Common Law Marriage
California does not recognize common law marriages. Because of this, if a couple in California gets married in another state that recognizes common law marriages, and then returns to California, the State will not recognize their marriage as valid.
To contrast the California position on common law marriages, Alaska, Kansas, South Carolina and Vermont all recognize common law marriages, but only those that were created prior to 1980. This means that a couple in one of those states whose relationship started and continued throughout 1979, can have their common law marriage valid in California.
As previously mentioned, there is no common law marriage in California. Thus, if a couple that has been living together come to California, the legal position is that of a cohabiting couple and they do not have the full rights that is afforded to couples that are legally married.
Ways to Avoid Common Law Marriage in California
California, unlike some other states within the United States which do recognize common law marriage, acknowledges couples in domestic partnership. This is obtainable through the domestic partnership process laid out in Family Code Section 297. The statutory requirements for a statutory domestic partnership in California are that both parties must be 18 years of age or older, not related to each other as defined in Family Code Section 297 – a short and narrow definition of appropriate "relatedness" in this context, capable of consenting and domiciled in California, making an informed consent, and signing a declaration of domestic partnership and sending this over to the Secretary of State.
If registered under the California domestic partnership law, legally married spouses receive most (but not all) legal benefits of spouses legally married under California law. This includes 50/50 division of property, spousal support, health care benefits, health care decision-making, shared filing of taxes as a married couple, etc. Keep in mind that living together as an unmarried couple, and even having children together, does not entitle the couple as a whole to the benefits of a domestic partnership.
Another legal mechanism is to have a cohabitation agreement prepared by a qualified attorney and signed by both parties. This is essentially a legal contract between the parties outlining the obligations of each party during the duration of the contract and if the relationship dissolves or if either party dies. Most cohabitation agreements include how property will be divided, how support will be paid, sharing of living expenses, handling of debts, etc. This allows the couple to have input on these matters instead of relying exclusively on the law.
Moving to California Triggers Common Law Marriage
A couple who enter into a common law marriage in a state that recognizes it, and then moves to California may find their marriage status up in the air if they attempt to dissolve the relationship. In order for the court to obtain jurisdiction to dissolve the marriage, you must be able to establish "domicile" within California. Domicile basically means physical presence within the state, with an intent to remain in the state. (See e.g. Family Code ยง 2320.) However, the fact that a couple entered into a valid common law marriage in a state that recognizes it does not mean that they can establish domicile for jurisdictional purposes. In other words, the couple may be legally married in another state for all purposes, yet they may not be able to establish unfettered access to the courts in order to dissolve the marriage in California. In such a case, the family law court would have to determine whether it would "recognize" the marriage based on other factors. This is where the concept of comity comes into play. Comity is a term that defines "courtesy and favor shown by one state or nation to another." Common law background is always taken into consideration in any legal situation. Thus, California courts have hinted that they would consider whether to "extend comity" to recognize the valid common law marriage from the other state. Would recognition offend a fundamental policy in this state?" (See In re Marriage of Kilbourne (1989) 207 Cal . App.3d 1254). The Kilbourne court ultimately determined that the common law union did not offend any fundamental policy in California and so California extended comity. The court focused on the fact that the couple had moved to California together, determining that they intended to make California their permanent home together, and had a child together in California. Thus, their common law marriage from Kansas was recognized in California. However, the winds may also be changing in California. Some legal scholars have argued that the concept of comity may need to give way to the public policy of the state of California being expressed in the California Family Code. That the "fundamental policy" of this state is that all valid marriages are recognized and that limiting recognition to only those marriages that are "similar to California’s own established marriage law" may no longer be applicable. (See Tulley v. California (2003) 109 Cal.App.4th 431.) Further, it has been stated that allowing a differing policy on marital relationship to displace the unified concept of family law in California "makes no more sense than permitting the enactment of at-odds laws in the same lawsuit governing other areas of the law." (Id.) Until it is conclusively established in the courts, California will determine whether they want to extend comity on a case by case basis based on the relevant circumstances in each case.
Legal Guidance, Tips for Couples
Seeking legal guidance can be an essential step for couples in understanding and navigating the legal aspects of non-traditional marriages or cohabitation in California. This section will provide couples with information on the process of obtaining legal advice, as well as resources to assist them in this endeavor. In a state where common law marriage is not recognized, and with the rise of domestic partnerships, it is crucial for couples to seek legal counsel to understand their rights and responsibilities. A family law attorney who specializes in domestic partnerships, premarital agreements, and property division can provide valuable insight and guidance through the complex legal landscape. To find a suitable attorney, couples can consider the following: Couples can also reach out to legal aid organizations or non-profit groups that specialize in family law, as these resources may be able to offer guidance or direct individuals to an attorney familiar with their specific needs. Once an attorney is selected, the couple will need to provide detailed information about their relationship, financial circumstances , and any other relevant details pertaining to their unique situation. A knowledgeable attorney will be able to help the couple navigate the complexities of their relationship and determine the best legal options available to them. There are additional resources available to couples in California who may need further assistance or guidance apart from hiring a private attorney. The California Judicial Branch provides a list of free or low-cost legal aid organizations on their website. These organizations may specialize in specific areas of family law, including services for LGBTQ couples and domestic partnerships. On top of directing couples to legal institutions, these organizations can also provide general information and resources for navigating relationship issues or seeking services in their area. While California does not recognize common law marriage, couples in a non-traditional relationship, including domestic partnerships, may find their relationship fraught with uncertainty and tension. For this reason, finding quality legal advice is an essential step for those in non-traditional relationships who wish to transition to a traditional marriage, or for those who want to protect themselves and their rights moving forward.