Everything You Need to Know About Common Law Marriage in California

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When most people picture a marriage, they picture a wedding ceremony with rings and vows. Less common, perhaps, is a courthouse wedding or elopement. However, most people assume getting married involves a marriage license and an officiant, and usually, and in most places, it does. However, there is a phenomenon called common law marriage, where, in a few jurisdictions, a couple can become married effect without ever signing a marriage license, exchanging vows, or having any form of a ceremony. 

What is Common Law Marriage?

Common law marriage occurs, in essence, when two consenting adults who are capable of being married (1) intend to be married and (2) hold themselves out as being married to the community. Some jurisdictions also require cohabitation.

In order to have the capacity or capability of being married, each party must be over the age of 18, must be of sound mind, and must not be married to anyone else. In California, the concept of sound mind with regards to capacity to marry is evaluated as it is when entering into any valid contract. Intent to be married is harder to measure, but it is usually established by weighing certain factors and considering what married people tend to do. This can include living together, sharing a last name, sharing children in common, filing taxes jointly, having joint bank accounts, entering into contracts together, owning property together, sharing household duties and expenses, and referring to each other as spouses. Lastly, the couple must hold themselves out as being married to family, friends, and the greater community. They must present themselves as a married couple publicly.

This means that in some cases, two people can become married in effect without a license, ceremony, officiant, record, or sanctioning of the marriage by a state government. Like a traditional marriage, common law marriages can only end in divorce or the death of one or both spouses. Once a common law marriage is established, common law married couples must go through the same divorce process as traditionally married couples. Common law marriage is on the decline, however. It is recognized in many states, but can only be contracted in Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, Texas, The District of Columbia, and under military law. Similarly, New Hampshire only allows a common law marriage to be established for probate purposes, and Utah requires that the common law marriage be validated in a judicial proceeding.

Does California Recognize Common Law Marriage?

California does not allow for common law marriages to be contracted within its borders, but Section 308 of California Family Code recognizes any marriage validly contracted in another jurisdiction. This means that even though you can’t become common law married in California, if you have a valid common law marriage from another jurisdiction, it will be honored in California.

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Roberts & Zatlin Family Law Firm offers comprehensive family law services, including divorce, child custody, paternity, spousal support, child support, move away, and domestic violence. With over 35 combined years of experience, we are well-prepared to deliver compassionate, responsive, and zealous advocacy in any and all of your California family law needs. Contact us today or call us at (951)-337-4674 for a free and confidential 30 minute consultation!

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