California Common Law Marriage – A Misconception


As a family law attorney, I find that many people are misinformed about California family law. Perhaps one of the most common misconceptions I come across is regarding “common law marriage.” I have heard people say that they are married by “common law” because they have been living together for a certain number of years. I would like to clear up this misconception once and for all and state that in California, there is no “common law marriage.”


The California Family Code defines marriage as “a personal relation arising out of a civil contract between a man and a woman, 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 …” Therefore, no marriage can be created merely by the parties giving consent or by the parties cohabiting for a certain number of years. In order for a marriage to be valid the parties must have a valid marriage license.


This means that cohabiting persons do not share the same rights married persons do with respect to property and spousal support. Cohabiting parties may have a claim to support as a civil action, but there is no remedy in family law. Additionally, property acquired during the marriage by married persons will generally be community property, but that is not necessarily the case for cohabiting persons. If you have lived with your partner for twenty years and your partner acquired cars, a home, a pension, retirement plans, etc. during your relationship, if you are not married, you may not have a right to any of those assets.


Another misconception I have heard is that there is a “common law divorce.” It does not matter how long a husband and wife have been separated or how many years they have lived apart, they are not divorced until their marital status has been terminated by the court.


However, a lawful common law marriage from a jurisdiction that does recognize common law marriages is recognized in California. The court determines the validity of the marriage by looking at the laws of the jurisdiction where the marriage takes place.


Property rights and support obligations for non-married persons are complicated topics which should be discussed with a family law attorney.

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