Learning About Common Law Marriage
A common law marriage in the United States is not identical to a ceremonial marriage in that it lacks any sort of official documentation. However, the two types of unions usually share the features of a legal and a physical relationship or partnership between two individuals, along with an intention to marry at some point in time. A couple may enter into a common-law marriage when they live together but do not undergo the legal formalities that mark a ceremonial marriage.
Some of the characteristics of a common law marriage include the following:
- A common law marriage may be formed without any witnesses.
- There may be no legal filings for a common law marriage.
- A common law marriage typically does not have any official certificate.
- There may also not be any marital property.
A couple entering into a common law marriage must generally have the intent to actually marry. Additionally , they must cohabit in a way that resembles a traditional marriage, such as by having both parties reside with one another and sharing their lives as if they were a married couple. In many instances, a couple may not have a desire to marry or may be unable to do so initially, such as if they are from different religious or ethnic backgrounds or are currently married.
How California Treats Common Law Marriage
California does not recognize common law marriage. While California did formerly allow common law marriages, that was as far back as the 1800s. In modern times, California is quite clear in its rejection of "common law" unions. It has been made clear by the legislature that, as far as California is concerned, unless a formal marriage has taken place, there is no marriage. California family code states that people cannot be legally married without going through the state’s statutory procedure for marriage. All of this is outlined in California Family Code sections 300 to 310. When it comes to trying to determine what the law of the state of California is regarding common law unions, the definition of "marriage" is important to look at. This definition reads as follows: "Marriage is a personal relation arising out of a civil contract, to which the consent of parties capable of making that contract is necessary. . . . The consent of the parties shall be expressed in the presence of the registrar and two witnesses." (See California Family Code section 300) What this means is that for a couple to legally wed in the state of California, certain things must happen. First and foremost, the couple must actually agree to marry, and that agreement must be manifested in a legitimate way. This isn’t to say that such gestures as a proposal, an exchange of rings, and all that bring about the marriage contract aren’t recognized in California – they are. But ultimately, whatever the couple does to signify their intent to wed, it must happen in front of the right people. Even if they intend to eventually marry, and do everything to show that intention, without the proper method laid out by the state, they will not be recognized as a married couple.
A Look at the History of Common Law Marriage in California
The history of common law marriages in California is a story of changing laws and evolving social norms. Strictly defining what constitutes a common law marriage in California, in the context of its history, is difficult as the state has a long and complicated past of codifying and recodifying these definitions. The first recorded use of common law marriage law in California is from the time of Mexican rule when the California Civil Code Section 1829 stated: "The consent of the contracting parties, to marry in the presence of a competent witness or witnesses, is essential to the validity of the contract" (Cal. Stat. 1850, ch. 157, P. 249, § 1.) But with the American conquest in the mid-1800s, new laws were surreptitiously overlaid on the Native American and Anglo settlement customs. Until 1905, California’s common law usages of marriage were for all intents and purposes controlling.
Upon statehood, California adopted the laws of the United States as becoming the law of the land. However, the General Laws of 1850 became the law of the land under the U.S. adoption. Under the status quo, California continued to recognize common law marriages. A common law marriage recognized in this country was the product of a legislative method of law-making, and not a decision of any of our courts. Its authority is therefore to be found in the statute books, and not in the text-writers. So, in 1893 the California Supreme Court wrote: What the people of this state have said in their constitution was doubtless meant to be given a broad, liberal construction and interpretation, in order to advance the great ends of justice, so that all persons might be protected in their contract rights, and that the law might be as familiar and simple as possible, so as to be easily understood and easily applied in practice. The legislature, within the constitutional limits, has followed the same policy; and, with a view to uniformity in all the states, it has stated, in language almost identical with that used in other states, what shall constitute a lawful marriage in this state. A reference to the laws of the several states generally will show that the forms of marriage which are thus recognized by law are essentially the same in each and every state. Decker v. McCullough, 97 Cal. 155 (1893).
The conflict of statutory and common law marriage raised doubt and confusion in the 1900s. In 1917, the California legislature put an end to all confusion as "bonafide" common law marriage was outlawed for all intents and purposes. The California Supreme Court was also clear in its instructive opinion In re Wentworth, (1915) 170 Cal. 580- Thus, California was indignant. In 1969, California adopted Family Law sections 300-310 to the Family Code. Permanent marriage must take place in accordance with Sections 310 through 340, which set forth the requirements of a valid marriage. Family Code sections 350 and 351 require a certain solemnization of the marriage to give it legal force and effect. These sections provide that all marriages shall be in the presence of an authorized person and two witnesses. However, under California Family Law Code Section 350(b), commission officers or noncommissioned officers of the armed forces of the United States, and officers of the Merchant Marine, and other federal officers precluded from performing civil marriage ceremonies by their commissions, are not bound to the above requirements. We see that the lines with regard to what actually constitutes a legally binding common law marriage in California are being drawn within the context of the most contemporary of events.
Exceptions to Common Law Marriage and Recognition of Those from Other States
As noted above, California no longer allows the establishment of a common law marriage. A common law marriage requires that the parties be able to demonstrate an agreement to enter into a marital relationship, cohabitation and an assumption of a marital relationship. These factors must be proven under California law based on the preponderance of the evidence. Inayatullah v. Inayatullah (1959) 171 Cal. App.2d 541. However, California does recognize common law marriages that are legally established in other states. Where a common law marriage is validly established in another state and then brought by the parties to California, California will grant full faith and credit based on the United States Constitution Article IV, § 1. The United States Constitution provides a couple options on how states should evaluate legal issues and laws from other states. The Full Faith and Credit Clause is a way to satisfy the requirement that similar cases are handled in the same manner throughout the country (Chicago, I. & L.S.R. Co. v. Chicago, R.I. & P.R. Co. (1890) 147 U.S. 264, 272-273.) Full faith and credit requires opportunities for person to be treated equally and fairly in the legal system. (Id.) The policy of this clause is that the law one state applies to a particular set of facts will not be applied differently to similar facts from out of state. In other words, the full faith and credit clause is a check on the state. Illinois Code. Ann., Const. Art. 4, § 1 (2012), "full faith and credit shall be given to the public acts, records and judicial proceedings of every other State." This clause requires that if a court’s records, decisions and reasoning are made available to another state court they should be able to apply the same laws. Under this clause, California recognizes any common law marriage that meets another state’s requirements. However, California is not bound by this clause when it comes to community property. (In re Marriage of Morrow (2012) 203 Cal. App 4th 277.) When a marriage has been voided in another state, they do not have to address the division of marital property due to the fact that the parties were never married.
Legal Consequences for Those in California in a Common Law Marriage
For couples residing in or relocating to California who believe they are in a common law marriage, there are important legal considerations if you plan to separate, divorce or determine paternity of a child. Some key things to consider: These cases have very different requirements and procedures . Attempting to avoid a formal marriage can have negative consequences. It’s essential to seek advice from an experienced family law attorney. Your lawyer will help you keep in mind all the things that could have been taken care of in a valid marriage.
Alternatives to Common Law Marriage in California
While California does not recognize common law marriage, couples still have a number of options if they wish to enter legally recognized partnerships. Domestic partnerships and civil unions are two of the most popular choices.
Domestic Partnerships: In California, a state domestic partnership allows for two adults to file a Declaration of Domestic Partnership with the Secretary of State and become legally recognized as a couple. This recognition comes with all of the rights and responsibilities of a married couple, such as community property division in the event of a split. Like marriage, domestic partnerships are only available to opposite-sex or same-sex couples who are living together and have chosen to share finances, and who have the legal capacity to marry. Couples with a domestic partnership in California must also be jointly responsible for the same children.
Because there are several types of partnerships that fall outside of the traditional domestic partnership, the requirements for some alternatives may vary. The requirements of a California domestic partnership are:
In addition to these requirements, domestic partners must also submit all of the necessary forms and fees to their county clerk office. All forms must be signed in person in front of the notary public at the county clerk office. Once the clerk has recorded the application, the domestic partnership becomes legally valid. While domestic partnerships are susceptible to the same dissolution process (divorce) as marriages, they are also subject to the same spousal inheritance laws as marriages.
Civil Unions: Civil unions are legal alternative to marriage that are currently available in Connecticut, Vermont, and New Hampshire. In California, domestic partnerships are generally viewed as a legal equivalent to civil unions. However, there are some minor differences between the two.
While civil unions at one time offered alternative value, today domestic partnerships are much more common and accepted than they were a few decades ago. California has offered domestic partnership protections since 1999, and as such, the vast majority of people seeking legal recognition of their romantic partnership in California today choose domestic partnerships over any other method.
Obtaining Legal Help
A California family law attorney provides each individual with the legal protections that can help you protect your assets and rights from misinterpretation. California courts may divide what an individual claims as separate property or marital property upon the dissolution of a common law marriage. Consulting a family law lawyer to understand your options when you have concerns about the validity of your marital status is always advisable. A skilled attorney will always discourage a couple from representing themselves in a dissolution of marriage proceeding because of the potential for complications that can arise from improper filing of forms or lack of understanding of state laws concerning marriage.