Does California Recognize Common Law Marriage?
Common law marriage is a legal concept that allows couples to become married without obtaining a marriage license or having an official ceremony. Many people wonder whether this option exists in California, particularly those who have been in long-term relationships without formal marriage proceedings. The answer is straightforward: California does not recognize common law marriage for couples who establish their relationship within the state’s borders.
However, the situation becomes more nuanced when examining how California handles common law marriages established in other states or jurisdictions. Understanding these distinctions is crucial for couples living in California, those planning to move to the state, or individuals whose relationship status may be questioned during property disputes, inheritance matters, or family law proceedings. This comprehensive guide explores California’s stance on common law marriage and what it means for your legal rights and obligations.
What Is Common Law Marriage?
Common law marriage is a form of marriage recognized in certain states and countries where couples can become legally married without obtaining a marriage license, undergoing a ceremonial exchange of vows, or having their union solemnized by a government official or religious authority. Instead, the marriage is established through the couple’s conduct, cohabitation, and mutual agreement to be married.
The specific requirements for establishing a common law marriage vary by jurisdiction, but generally include: the couple must be of legal age to marry, must cohabitate for a specified period (often several years), must present themselves publicly as married, must intend to be married, and must have the legal capacity to marry (not already married to someone else). Some jurisdictions require additional elements, such as the couple exchanging vows or agreeing to marry, while others have eliminated common law marriage entirely in recent decades.
Common law marriage developed historically in England and was carried forward into American jurisprudence. It served a practical purpose in frontier communities where formal marriage ceremonies were not always accessible. Today, fewer than half of U.S. states recognize common law marriage, and several states that once recognized it have abolished the practice for new unions while grandfathering in marriages established before a certain date.
California’s Official Position on Common Law Marriage
California abolished common law marriage in 1895 and has maintained this position consistently for over a century. California Family Code Section 300 specifies the only valid forms of marriage in the state, and common law marriage is not among them. This means that couples who live together in California, regardless of how long they cohabitate or how they present themselves publicly, cannot establish a valid marriage through common law principles.
This position has been reaffirmed numerous times by California courts. The state’s legislature has had multiple opportunities to reinstate common law marriage and has chosen not to do so, indicating a deliberate policy decision. California courts have consistently held that the state’s interest in maintaining clear, documented marriage records and preventing fraudulent marriage claims outweighs any benefit that common law marriage recognition might provide.
For California residents, this means that the only way to legally marry is through the traditional process: obtaining a marriage license from the county clerk’s office and having the marriage solemnized by an authorized person such as a judge, justice of the peace, or religious official. Without these formal steps, no legal marriage exists, regardless of the couple’s intentions or the length of their relationship.
The implications of this policy extend beyond romantic relationships. Courts have applied this principle consistently in cases involving property disputes, inheritance claims, spousal benefits, and family law matters. A couple cannot claim spousal status, community property rights, or survivor benefits based on common law marriage principles if the marriage was established in California.
Out-of-State Common Law Marriages and California Recognition
While California does not recognize common law marriages established within its borders, the state does recognize common law marriages that were validly established in other states or jurisdictions. This represents an important exception to California’s general rule and reflects principles of comity and conflict of laws.
California Family Code Section 308 addresses marriages entered into outside of California. If a couple established a common law marriage in a state that recognizes such marriages—such as Texas, Colorado, Kansas, or Iowa—and then moved to California, their marriage would be recognized as valid in California. This is true even though the same couple could not have established that marriage had they remained in California.
For out-of-state common law marriages to be recognized in California, they must have been valid at the time and place of establishment according to the laws of that jurisdiction. Additionally, the couple must meet certain requirements: both parties must have been of legal age, neither party could have been married to someone else at the time, and the marriage must have been established before either party moved to California (or at least with sufficient connection to the original jurisdiction).
This recognition creates a unique situation where California acknowledges marriages it would never create itself. Courts have upheld this principle because recognizing validly established out-of-state marriages promotes stability and respects the laws of other jurisdictions. However, the burden of proving that a valid common law marriage was established in another state falls on the party claiming the marriage status.
To establish an out-of-state common law marriage, you would typically need to provide evidence such as: testimony from witnesses who knew the couple, documents showing the couple presented themselves as married (such as tax returns, insurance policies, or joint property deeds), testimony regarding the couple’s intent to be married, evidence of cohabitation, and evidence that the jurisdiction where the marriage was claimed to exist recognized common law marriage and that the couple met that jurisdiction’s requirements.
Requirements for Legal Marriage in California
Since common law marriage is not an option in California, couples who wish to marry must follow the state’s formal procedures. Understanding these requirements is essential for anyone seeking legal marriage status in California.
Marriage License Requirements: California requires couples to obtain a marriage license from the county clerk’s office. Both parties must be present at the time of application (with limited exceptions), and they must provide valid identification, proof of age, and proof of any prior divorce decrees or death certificates from previous spouses. California has no waiting period between obtaining the license and having the marriage solemnized, though the license is valid for 90 days from the date of issuance.
Solemnization: After obtaining the marriage license, the marriage must be solemnized—that is, officially performed—by an authorized person. In California, authorized persons include judges, justices of the peace, county clerks, religious officials (priests, ministers, rabbis, imams, and other clergy), and certain notary publics who have completed additional training. The person solemnizing the marriage must be present with both parties and must perform the ceremony in a manner consistent with California law.
Witnesses: California law does not require witnesses to a marriage ceremony, though some religious traditions and personal preferences may dictate otherwise. The absence of witnesses does not invalidate a marriage in California.
Ceremony Content: California law does not prescribe specific words or a specific format for the marriage ceremony. The ceremony simply must demonstrate the parties’ intent to be married. This flexibility allows couples to personalize their ceremonies while meeting legal requirements.
Age and Capacity: Both parties must be at least 18 years old. Minors may marry with parental consent and court approval, but this is rare. Additionally, both parties must have the legal capacity to marry—they cannot be married to someone else, cannot be related by blood within prohibited degrees, and must be mentally capable of understanding the nature and consequences of marriage.
Consulting with a family law attorney near you for a free consultation can help clarify any questions about California’s marriage requirements and ensure your ceremony complies with state law.
Domestic Partnerships and Alternative Legal Arrangements
Although California does not recognize common law marriage, the state has created alternative legal arrangements that provide some of the benefits and protections of marriage to unmarried couples. The most significant of these is the domestic partnership.
California Domestic Partnerships: California established domestic partnerships through legislation that has evolved significantly over time. Originally created in 1999 as a limited arrangement for same-sex couples, domestic partnership laws have expanded substantially. Currently, California allows both same-sex and opposite-sex couples to register as domestic partners, provided they meet certain requirements: both must be at least 18 years old, neither can be married to someone else, and they must not be related by blood within prohibited degrees.
Registered domestic partners in California receive many of the same legal rights and responsibilities as married couples, including property rights, inheritance rights, healthcare decision-making authority, and the ability to adopt children. However, domestic partnership is not identical to marriage, and the distinction can matter in some legal contexts, particularly regarding federal benefits and recognition in other states.
Cohabitation Agreements: Unmarried couples, whether in domestic partnerships or not, can enter into cohabitation agreements (sometimes called living together agreements) that specify how they will handle property, finances, and other matters during their relationship and in the event of separation. While such agreements cannot create marital status, they can provide clarity and protection for both parties and can help prevent disputes if the relationship ends.
Other Protective Measures: Unmarried couples can also use other legal tools to protect their interests, such as wills, trusts, powers of attorney, and healthcare directives. These documents allow couples to specify their wishes regarding property distribution, healthcare decision-making, and financial management, even without marriage or domestic partnership status.
Implications for Property Rights and Inheritance
The absence of common law marriage recognition in California has significant implications for property rights and inheritance. Couples who cohabitate without formal marriage or domestic partnership do not automatically acquire the legal rights that married couples enjoy.
Community Property Rights: In California, married couples and registered domestic partners benefit from community property laws, which generally provide that property acquired during the marriage (with some exceptions) is owned equally by both spouses. This presumption of equal ownership can be crucial in property disputes and divorce proceedings. Unmarried couples, however, do not benefit from this presumption. Property acquired by one partner is presumed to belong solely to that partner, even if both contributed to its acquisition.
Inheritance Without a Will: When a married person dies without a will, California law provides that a surviving spouse inherits a portion of the estate based on the number of surviving children. The surviving spouse may inherit the entire community property estate and a portion of the separate property. Unmarried partners, however, have no automatic inheritance rights. Without a will, an unmarried partner receives nothing from the deceased partner’s estate, regardless of the length or nature of their relationship. The estate passes to the deceased’s relatives according to California’s intestacy laws.
Surviving Partner Benefits: Married couples may be entitled to various survivor benefits, including Social Security survivor benefits, pension survivor benefits, and life insurance benefits where the spouse is named as beneficiary. Unmarried partners do not have automatic rights to these benefits and must be specifically named as beneficiaries in the relevant documents.
Homestead Rights: California provides homestead protections to married couples and certain other protected persons, but unmarried partners do not qualify for these protections without specific legal documentation.
These differences underscore the importance of formal legal status for couples who wish to ensure their wishes are honored and their partner is protected. An understanding of mediation versus arbitration and other dispute resolution options can also help couples establish agreements about property and other matters.
How to Protect Your Rights Without Common Law Marriage
For couples in California who are not formally married or registered as domestic partners, several steps can help protect their legal rights and ensure their wishes are honored.
Obtain a Marriage License and Have a Ceremony: The most straightforward approach is to marry formally. This provides automatic legal protections and is relatively simple and affordable. County clerk’s offices can provide information about obtaining a marriage license and finding an authorized person to solemnize the marriage.
Register as Domestic Partners: If marriage is not desired, couples can register as domestic partners with the California Secretary of State. This registration provides many of the same legal protections as marriage while maintaining the domestic partnership status if that is the couple’s preference.
Execute a Cohabitation Agreement: Couples can draft a detailed cohabitation agreement specifying how property will be divided if the relationship ends, how finances will be managed, and other important matters. These agreements should be drafted carefully to be enforceable and should ideally be reviewed by a family law attorney.
Create a Will or Trust: Both partners should execute wills or trusts specifying how their property should be distributed upon death. Without such documents, an unmarried partner will receive nothing from the deceased partner’s estate. A trust can also provide additional benefits, such as avoiding probate and maintaining privacy.
Execute Powers of Attorney: Each partner should execute a durable power of attorney designating the other as attorney-in-fact for financial matters. This allows one partner to manage the other’s finances if the other becomes incapacitated.
Execute Healthcare Directives: Partners should execute healthcare directives (also called advance healthcare directives or living wills) designating each other as healthcare proxies and specifying their wishes regarding end-of-life care. Without such documentation, healthcare providers may not recognize an unmarried partner’s authority to make medical decisions.
Name Beneficiaries: Ensure that all accounts, insurance policies, retirement accounts, and other assets that allow for beneficiary designation specifically name your partner. These designations override wills and are crucial for ensuring property passes as intended.
Consider Property Ownership Structure: Consult with an attorney about the best way to hold property. Joint tenancy, tenancy in common, and sole ownership have different legal consequences, particularly regarding what happens to the property if one owner dies.
Understanding the civil law system versus common law can provide helpful context for understanding how different legal systems approach marriage and property, though California law specifically governs matters within the state.
FAQ
Can I establish a common law marriage in California if I live together for a certain number of years?
No. California does not recognize common law marriage regardless of how long you cohabitate. There is no number of years of living together that will create a valid marriage in California without formal solemnization and a marriage license.
If I had a common law marriage in another state and moved to California, will it still be valid?
Yes, provided the marriage was validly established according to the laws of the state where it was created. California recognizes out-of-state common law marriages that meet the requirements of the jurisdiction where they were established. You may want to register the marriage in California for clarity, though this is not legally required.
What is the difference between a common law marriage and a domestic partnership in California?
A common law marriage does not exist in California. A domestic partnership is a legal status created by California law that provides many of the same rights as marriage but requires formal registration with the Secretary of State. Domestic partnerships are available to both same-sex and opposite-sex couples.
If my partner and I are not married or registered as domestic partners, do I have any inheritance rights if my partner dies?
No, unless your partner specified otherwise in a will or trust. Unmarried partners have no automatic inheritance rights. Your partner’s estate will pass to relatives according to California intestacy law unless there is a will or trust directing otherwise.
Can a cohabitation agreement replace marriage or domestic partnership?
A cohabitation agreement can specify how property and finances will be handled, but it cannot provide all the legal protections of marriage or domestic partnership. It can help prevent disputes but cannot create spousal status or automatic inheritance rights. Both formal marriage and a comprehensive estate plan are advisable.
How do I know if my out-of-state common law marriage will be recognized in California?
You should consult with a family law attorney who can examine the specific requirements of the state where your marriage was established and determine whether you met those requirements. The burden of proving an out-of-state common law marriage falls on the person claiming the marriage status.
What should I do if I want legal marriage status in California?
Obtain a marriage license from your county clerk’s office and have the marriage solemnized by an authorized person such as a judge, justice of the peace, or religious official. A family law attorney near you can provide guidance through the process if needed.
Can I claim spousal benefits from my partner’s Social Security if we are not married?
No, unless you are married or in a registered domestic partnership (for some federal benefits). Social Security recognizes marriage and, in some cases, domestic partnership for spousal benefits. Cohabitation alone does not create eligibility for these benefits.
If I want to protect my unmarried partner, what is the most important document to create?
A will or trust is crucial because it ensures your partner inherits your property as you wish. Additionally, a healthcare directive is important to ensure your partner can make medical decisions if you become incapacitated. A power of attorney for finances is also advisable. Ideally, you should have all three.
Are there any recent changes to California law regarding common law marriage?
California has not changed its position on common law marriage. The state continues to not recognize common law marriages established within California. However, laws regarding domestic partnerships and other family law matters continue to evolve, so it is advisable to consult with an attorney about current law.
What happens if I cannot afford to marry formally or register as a domestic partner?
Marriage licenses in California are relatively inexpensive (typically under $100), and many county clerks offer fee waivers for those who cannot afford the license. Additionally, many religious and community organizations will perform ceremonies at low or no cost. If cost is a barrier, contact your county clerk’s office to inquire about options. At minimum, you should execute a will and healthcare directive, which can often be created inexpensively using online legal services or legal aid organizations.
