What Is the Common Marriage Law in California?
By Beverly Bird
Updated September 27, 2018
Common law marriage is a quaint, outdated concept that a handful of states have been slow to part ways with. Nine states and the District of Columbia still recognize these marriages, but California isn’t one of them. You must take out a license and “solemnize” your vows if you want to marry there. But there are a few wrinkles in California’s laws that at least accommodate the idea that not every couple wants to proceed to wedded bliss in the conventional way.
How Do You Prove Common Law Marriage?
Among the states that do recognize this type of union, the rules are sketchy and can vary from one jurisdiction to another. One thing is pretty universal, however. You can’t prove a common law marriage by simply announcing to the world, “OK, we’re married now,” nor can you do so by just cohabiting for a prescribed number of years. Living together is a rule, but other factors come into play as well.
So, exactly how many years do you have to live together for common law marriage? It depends, but it is typically multiple years, not just one or two. Seven is the number that comes up frequently, but it can vary from state to state. You must additionally “hold yourself out” to the public as a married couple and your union must be such that you do, indeed, consider yourself to be married.
Yes, this is vague, and it can make it a bit difficult to determine who is common law married and who is not. But in most states, these rules mean that you share the same last name, file joint tax returns and maybe own a home together.
Contrast this to California’s definition of marriage. The state’s Family Code Section 300 (a) reads: “Marriage is a personal relation arising out of a civil contract between two persons, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization…”
In other words, you have to wrap things up with a marriage license and some sort of ceremony or you’re not married there.
Read More: What Is Common Law Marriage?
When Was Common Law Marriage Abolished in California?
It wasn’t always this way in California. The state had no problem with common law marriages in the 1800s. It was perfectly acceptable in the old Old West, but then California became a state in 1850 and that changed things. State laws were passed to govern citizens, and one thing led to another. The state ultimately pulled the plug on common law marriages in 1895.
But it didn’t do so entirely. Fast forward to 1986.
A couple who began their common law marriage in Alabama – one of the states that recognizes these marriages – relocated to California only to find that they were not considered married under California law. The case of “Marriage of Smyklo” went all the way to the California appellate court where it was ultimately determined that the state would recognize the marriage, as well as all other common law marriages that originated in a jurisdiction where they were valid.
Common Law Marriages in Other States
The bottom line is that you although you can't become common law married if you’re a California resident, the legislative code gives you a nod of consent – sort of – as long as common law marriage was recognized in your previous state or territory and that's where your union began.
The issue is usually addressed on a case-by-case basis. If you want to bring any sort of legal action, such as a divorce, based on the premise that you began your common law marriage elsewhere, a California court will review the laws of that jurisdiction to determine if you meet those laws. If the court decides that you do, you’re common law married. Otherwise, the state won’t consider you any more married than a native California couple who’s been living together.
California Family Code Section 308 says: “A marriage contracted outside this state that would be valid by laws of the jurisdiction in which the marriage was contracted is valid in this state.” A California court must establish that the marriage is valid according to the other state’s laws.
So, if you started out in any of these other states, you might be able to make a case that you’re married. They’re Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah and Washington D.C.
Five additional states recognize older common law marriages, but you can’t become common law married in any of them today. Pennsylvania recognizes these marriages if they were entered into before 2005. It’s 1997 in Georgia, 1996 in Idaho, and it’s October 10, 1991 in Ohio. Oklahoma recognizes common law marriages entered into before November 1, 1998.
New Hampshire recognizes common law marriages only for purposes of inheritance.
Property Issues and “Putative Spouses”
So, if you’re not considered married under California law, what does that mean for issues like property and alimony if you split up? This is another one of those “it depends” issues.
Did you think you were legally married under California law only to find out that you actually weren’t? No, this doesn’t mean you believed common law marriage was legal here. It means that you took out a marriage license, tracked down a justice of the peace and tied the knot…only to later discover that your marriage was never valid. This might be the case if your spouse never actually got around to divorcing his first spouse, or maybe he thought she was deceased when, in fact, she’s still alive and well.
Assuming that you actually did the deed, i.e., took out the license and said “I do,” California Family Code Section 2251 says that you’re a “putative spouse,” and as such, you have certain rights. You’re entitled to your share of marital property, just as any other divorcing spouse in the state would be. Under California’s community property law, this typically means half.
Otherwise, who gets what is most likely going to come down to the way any property you own is titled. If everything you purchased or acquired together while you were "married" is titled in your spouse's name, you probably have no legal right to any of it under California law.
Common Law Marriage in California and Palimony
The putative spouse rule also applies to alimony or spousal support, but California has an additional rule for this issue if you’re not considered legally married in the state. This rule opens a legal door for couples who never took out a marriage license but nonetheless lived together for a period of time.
You might be entitled to “palimony” if you and your ex had an agreement in place that he would continue to support you after a breakup. This is also known as a Marvin Claim in California after the notorious 1979 Triola vs. Marvin case. Actress Michelle Triola sued actor Lee Marvin for support and half his earnings during the period of time they lived together, even though they had never technically married.
You would not file your case in family court if you decide to pursue a palimony claim, but rather in civil court. You don’t have a “family” case under California law if you never took the required formal steps to marry, unless you were common law married elsewhere. You might have a contract issue, however, whether it was verbal or written.
If the agreement was verbal, be prepared to trot out witnesses who heard your ex speak such promises. These cases have a pretty significant burden of proof. In fact, Michelle Triola lost her case because she couldn’t provide adequate proof of the couple’s “contract.”
Issues of Custody, Visitation and Child Support
Like all states, California takes issues of custody, visitation and child support very seriously regardless of whether parents are considered married. Children have a right to be financially supported by both parents. Barring extreme issues of abuse or incarceration, they’re entitled to a relationship with each parent. This is the case regardless of whether the state recognizes your common law marriage…but with one catch.
If the state doesn’t recognize your marriage, you must prove paternity to legally establish parental rights. This is the case even if you haven’t broken up and you’re still living together. It doesn’t matter that your name is on your kids’ birth certificates. You nonetheless need a court order stating that you’re the children’s father. Noncustodial parents have no rights to visitation or parenting time without one, and custodial parents can’t collect child support without such an order, either.
So What Happens at Tax Time?
When it comes to taxes, the IRS takes a position similar to that of California. If you began your common law marriage in one of the states that recognizes these unions, and if your marriage is considered valid there even if you’ve moved elsewhere, you can file a federal joint married tax return.
That’s the easy part. What about California state income taxes? The California Franchise Tax Board says you should use the same filing status for your California return as you do for your federal return.
Basically, it comes down to the same old rule. You can’t file a federal joint married tax return if you began your common law marriage in California because the state doesn’t recognize your marriage. But you can do so if you began your marriage in Colorado, then you moved to California. And if you do, you should file a joint married tax return in California as well…but you might want to check with a tax professional just to be absolutely sure.
A Common Sense Approach
You and your significant other have been living together forever, and you feel like you’re married. Maybe you even bought your home together and you have children together. You share a checking account and credit cards, and you’re committed ‘til death do you part. But you never bothered to take out that marriage license and you never solemnized your relationship.
If you live in California and you didn’t move there from a state where your “marriage” is recognized, you have very little in the way of rights unless you personally create them. But you can personally create them by taking a few minor steps.
Sign and file a voluntary Declaration of Paternity with the California Department of Child Support Services Paternity Opportunity Program. Both parents must sign. You’re now legally your child’s father regardless of marital status.
Consider writing up a cohabitation agreement to cover what will happen to your property should you ever part ways. As for palimony issues, you can create an agreement providing for terms for this as well. If you get all this in writing, it doesn’t matter what the state of California thinks of your union. You’re contractually bound.
California hasn’t recognized common law marriage since 1895, but that simply means that you can’t become common law married there.
- A People’s Choice: Common Law Marriage in California
- Farzad Family Law: Does Common Law Marriage Still Exist in California? Yes and No
- Orange County Family Law Solutions: Common Law Marriage Myths
- Unmarried Equality: Common Law Marriage Fact Sheet
- California Courts: Parentage/Paternity
- Washington Blade: Oops! Are You Accidentally Married?
- California Legislative Information: Family Code
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.