Common Law Marriage

When we think of marriage, we typically envision a white dress, beautiful flowers, a big ceremony and two people walking down the aisle and signing a marriage license after saying “I Do”. However, some states recognize a union between two people who simply intend to be married, hold themselves out as a married couple and cohabitate. No license or wedding is involved. This type of marriage is known as a common law marriage. In some states, but NOT in California, common law marriages are treated as legal marriages despite never obtaining a marriage license. Thus, when a common law marriage comes to an end, the couple must go through a formal divorce to end the relationship.

It is important to note that common law marriage exists in only a handful of states. California is not one of them. In fact, California abolished common law marriage in 1895. Rather, marriage in California is statutorily defined in Family Code Section 300 to be 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 both common law and statutory marriages both parties freely consent to the marriage, both parties are of legal age to contract a marriage or have parental consent to marry, and neither party is under a disability that prevents him/her from entering into a valid marriage. However a common law marriage differs from a statutory marriage in that there is no marriage license or certificate filed, there is no formal ceremony, the parties must hold themselves out to the world as husband and wife, and in most common law jurisdictions the parties have to be cohabitating at the time that the common law marriage is formed.

Couples who are in a “common law relationship” in California often assume that they will automatically be able to make a claim to their partner’s assets when he/she passes away or that they will be able to make important financial or medical decisions for the partner. However, this is not the case since California does not recognize common law marriages. Therefore, it is important to consider having a will and having power of attorney forms filled out.

Understanding all aspects of family law in California can prove to be quite complicated. Our experienced divorce attorneys are here to assist you. If you have any questions regarding the divorce process in San Diego please contact Andrew J. Botros, APC at (858) 422-1377 to schedule a consultation.