Common Law Marriage in California: What You Should Know

Is There Common Law Marriage in California?

While there are still a number of states throughout the country that recognize common law marriage, California is not one of them. Even when a couple has lived together for years—as in the case of common law marriage—there are certain legal implications even when a couple is living in cohabitation. The issues that typically arise deal with legal documentation to be filed regarding taxes, changes in residency, death benefits and inheritance matters.
Common law marriage traditionally means, in the most basic of terms, a relationship between two people who are not legally married but share a mutual intent to be considered husband and wife. In other words, it is about cohabitation, with both partners considered to be married, even in the absence of a formal legal ceremony or license . The relationship is normally evidenced by the use of the same last name as they go about their business acting as a traditional married couple would. However, when they decide to separate, the issues get a little more complicated.
Some people may believe that because they are living together and pooling their finances that they are protected if something were to happen to either one of them. Unfortunately, this is not accurate. Without statutory protections in place through cohabitation agreements and other legal documentation, many pitfalls could await those who are simply sharing space with someone else with all of the other costs that come with it.

History of Common Law Marriage

Origins of Common Law Marriage in the United States
Common law marriage has its origins in the early English and European settlements in America. Many of the earliest American colonies followed English common law, which held that people were married based on a mutual agreement to consider themselves married, regardless of whether there was actual formal registration with the government or ceremony performed by a religious official. By the 20th century, every state had adopted some form of statute or other rule regarding the regulation of marriage. Common law marriage came to be rejected by many states because of its lack of regulation and it was criticized as obsolete and unfair.
At the turn of the century, most of the common law states adopted laws setting the minimum age of marriage, except as to those who were in fact, "married by common law." The term "common law" refers to overlapping customs and practices of England and early American colonies, generally following prevalent practices in England rather than in origin and application. As statutory requirements for getting married were established, they replaced the common law requirements. In California, for example, one needed to have both intent and cohabitation to establish a common law marriage. Although California State law expressly abrogated the common law marriage concept by Civil Code section 4101 in 1895, the very next year, the California Supreme Court upheld claims of common law marriage (i.e. holding that common law marriage was valid) under statutes that did not yet exist.
Common law marriage gradually fell out of favor as social attitudes towards marriage evolved and changed. In 1949, Alaska became the last state to authorize common law marriage. In Alabama, between 2016-2018, the State legislature passed four proposed amendments to the law governing common law marriages. The proposed amendments were effectively repeals of the common law marriage concept and were each vetoed by Governor Kay Ivey. Finally, on August 29, 2019, Alabama’s Common Law Marriages Abolition Act went into effect.

Common Law Alternatives in California

Although California does not recognize common law marriage, there are legal alternatives for couples who want a legally recognized partnership but do not want or cannot have a traditional marriage. One such alternative is domestic partnership. California Assembly Bill 205, which was passed into law on January 1, 2017, allows opposite-sex couples to enter into domestic partnerships. Before AB 205 was passed, California only allowed same-sex couples to enter into domestic partnerships. As an alternative, unmarried couples may also enter into a cohabitation agreement, which is a legally binding contract that lays out how the couple will share expenses and how they will divide property and debts upon separation. Having a cohabitation agreement can save couples from being involved in a complicated litigation similar to divorce proceedings. Cohabitation agreements are also sometimes used to protect the assets of the wealthier partner from the less wealthy partner in the event of a break-up. Cohabitation agreements must be in writing and signed by both parties. Unlike premarital agreements, these must be witnessed if executed after marriage. Domestic partnerships in California are treated as identical to marriage for most purposes, so long as those purposes do not violate federal law. Unmarried couples who are not eligible to enter into a domestic partnership may also use a cohabitation agreement. Domestic partnerships are available to couples who are financially interdependent with each other, such as those who share an income or support each other. A California cohabitation agreement can be invalid in very limited circumstances. A cohabitation agreement that was prepared by one partner’s attorney without input from the other may be invalidated if it was found by the court to have been unconscionable. Permitting unmarried couples to establish domestic partnerships is an alternative to requiring that they marry to obtain the benefits of marriage while not extending the same privileges to all unmarried couples. A cohabitation agreement can be modified at any time the partners choose. In general, it is better to have cohabitation agreements prepared by attorneys who are familiar with the law. This can help people to avoid costly mistakes later on.

Rights and Duties of Unmarried Couples

In California, there is no legal concept of common law marriage, so unmarried couples do not have the same rights as married couples. However, it is essential for unmarried couples to establish legal agreements to outline their rights and responsibilities. Without such agreements, couples may have difficulty resolving disputes in areas such as property rights, child custody, and financial obligations.
Without a common-law marriage concept, unmarried couples have to rely on contracts and legal agreements to establish their rights and responsibilities. This can include prenuptial agreements, postnuptial agreements, cohabitation agreements, and other legal documents that outline each partner’s rights and responsibilities. In cases where there is no written agreement, courts can look at various factors, including the length of cohabitation, whether the couple commingled their assets, and whether they held themselves out to the community as a married couple to determine the outcome of disputes.
It is important for unmarried couples to understand that their legal rights and responsibilities may be different from those of married couples. For example , they may not have the right to make medical decisions for their partner without a healthcare directive, and they may not have inheritance rights unless they are specifically addressed in a will. To avoid misunderstandings and disputes, it is advisable for unmarried couples to work with an experienced family law attorney to establish the appropriate legal agreements to protect their interests.
Having these legal agreements in place can also protect the couple’s interests in the event of a breakup or death. Agreements can address issues like property division, support obligations, and even the procedures for resolving disputes. By being clear about their rights and responsibilities, unmarried couples can avoid the uncertainty and expense of courtroom litigation to resolve their legal matters.
In summary, although common law marriage is not recognized in California, unmarried couples can take steps to protect their rights and interests by establishing legal agreements. Consulting with an experienced California attorney can help couples understand their legal rights and the importance of these agreements.

How to Legally Protect You and Your Partner

While common law marriage is no longer a legal issue here, what if you have a valid common law marriage from a state that allows it? If there has been a split or you need to divide community property? The other person may be entitled to a share of your community property or may have some other rights. In California, you divorce a spouse but do not have to divide property with a person with whom you were just living together with no intent to marry. (Harsh, I know, but it is how the law in California is written.)
Here are some steps that couples can take to protect their rights, interests and property.
Cohabitation agreement:
A cohabitation agreement is a contract between two people who are not married but are living together. Cohabitation agreements are similar to pre-marital agreements, but they apply during the couple’s relationship. The purpose of the agreement is to define each partner’s rights and responsibilities as they relate to the property and finances of the couple.
The couple also can include in the cohabitation agreement their intentions regarding property division and alimony should they break up.
Common Topics Addressed in Cohabitation Agreements:
A cohabitation agreement can cover a wide variety of issues, such as:
Cohabitation agreements run the gamut from simple to complex. If the agreement is less complex, then the couple may be able to do it themselves. However, for complicated cohabitation agreements that cover multiple issues, you should hire a lawyer to draft it or at least review it.
Wills
If you do not have a will, then all of your property will pass according to the laws of intestate succession. That can mean that a biological family member could inherit your entire estate, despite having stood by while someone else (e.g., your life partner) acted as your caregiver for many years.
Living wills, powers of attorney, and other estate planning documents
You should have not only a will to cover What happens AFTER you die, but Health Care Powers of Attorney, Durable Powers of Attorney, and Powers of Attorney for Finances that go into effect DURING your lifetime. In addition, you may also want to entitle and agreements governing after your death such as who takes things in your post-death estate plan and who gets your body after your death.
Try to avoid the unintended consequences and the possibility of your wishes being carried out by naming anyone you don’t want to control your affairs. Strongly consider naming a trusted person or people to carry out your wishes in a will and powers of attorney, and make your wishes known in advance. Plan for the worst, and most importantly, consult an experienced estate planning attorney.

Conclusion: Co-habiting without Common Law Marriage

Conclusion: Living Together Without Common Law Marriage in California
While a single agreement or other document cannot carry the full force of a common law marriage in California, there are still a number of ways couples in non-marital relationships can protect their interests, property rights and families. Before entering the relationship, or very early on in the relationship, couples may want to consider a cohabitation agreement.
In California, agreements between unmarried couples may cover a wide range of options, such as:
It is important that a cohabitation agreement be drafted and reviewed by counsel to ensure the couple is protected and their rights upheld. Cohabitation agreements offer many options to couples who are considering a long-term commitment but are not ready to take the plunge to legally marry .
When couples are already in a non-marital relationship and discover their relationship may not provide for certain rights and property protections, such as property ownership, child support and spousal support, they may initiate other measures to provide such protection and secure their rights. Aside from entering into a cohabitation agreement, other ways partners may protect themselves under the law include:
While there is no common law marriage in California, unmarried couples have rights and responsibilities under California law that differ significantly from those of married couples. Those who have entered or are considering a non-marital relationship should consult with an experienced attorney about the available legal protections that may be afforded to people in their position.