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The Truth about Common Law Marriage in California

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Contrary to what a lot of people believe, California abolished common law marriage in 1895. This means that California couples will never be married, no matter how long they live together.

For example, Tom and Sue have always lived in California. They never formally married, but everyone thinks of them as a married couple. They started living together in 1986. Sue has always been a stay-at-home Mom to their four kids. They own a house together and have a joint checking account. However, if Tom and Sue break up, they cannot file for divorce. Sue can sue for child support, but she is not entitled to spousal support (alimony) and there will be no community property to divide.

Without a valid marriage, California's community property system does not apply to Tom and Sue. Only married couples create community property. (Generally, community property is everything acquired during marriage, except items received as a gift or an inheritance.) Here are some common examples of community property: assets, debts, real property, vehicles, employment benefits and pension benefits. When married couples divorce, the community property is usually divided equally.

To be married under California law, you must obtain a marriage license, go through a ceremony conducted by a person authorized under California Family Code Section 400. Some authorized persons include: judges, ministers, county clerks and priests. There must be at least one witness at the ceremony. The person who solemnized the marriage will return the original marriage license to the County Clerk or the County Recorder within ten days of the ceremony. Here is a link for more information: http://www.cdph.ca.gov/certlic/birthdeathmar/Pages/MarriageLicenseceremonygeneralinfo.aspx

For couples who live in states that provide for common law marriage, California will recognize that marriage if you move to California. This means that if you lived in Colorado and created a valid common law marriage, California will consider you married. In general, common law marriages are created when there is an agreement of two persons (who are qualified to marry) who live together permanently and hold themselves out as a married couple.

For example, Bill and Jenny grew up in Colorado. They formed a Colorado common law marriage in 1992. In 2005, they move to California. If they break up, they can file for a California divorce because California (and all the other states) will recognize their Colorado common law marriage.

For California residents who want the rights and responsibilities of marriage, the only thing to do is get officially married. Living together does not equal marriage in California and the law is unlikely to change in the future.