Do California Common Law Marriages Still Exist?

By | April 3, 2017

If you’ve spent any time Googling this question, you’ve probably discovered a confusing range of answers from ‘absolutely not’, to ‘maybe’, to ‘it’s complicated’. Sorry to muddy the issue, but all of these answers have some validity. However, if we’re going to cut to the meat of the matter, the answer is mostly no — California doesn’t recognize common law marriages.

But as with most aspects of family law, there are shades of grey and exceptions here and there. This is why, if you have questions about your marriage status or other legal concern, you should consult with a qualified family law attorney sooner rather than later. Continue reading to learn a little more about how California views common law marriages.


What Exactly is a Common Law Marriage?

Generally speaking, a common law marriage is legally recognized in certain states as a marriage between two people who haven’t entered into a formal marriage contract, civil union or religious marriage. In other words, the marriage is not officially recorded with a government agency (such as a county recorder’s office).

There are a few states remaining in the country that still recognize this type of marriage. California generally is not one of them. Here in the Golden State, marriage is specifically mentioned in the family code.

What California Law Says About Marriage

California’s definition of marriage can be found in Family Code § 300. The law states:

Marriage is 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 as authorized by this division…

Furthermore, subsection (b) states:

The document issued by the county clerk is a marriage license until it is registered with the county recorder, at which time the license becomes a marriage certificate.

So, according to state law, marriage is recognized as an officially-sanctioned contract, not an agreement entered into by two citizens in the privacy of their own home.

Common Law Marriages Still Exist? | California Family Law

So, Does California Recognize Common Law Marriages? 

While California’s state law does not include a provision for couples that enter into a common law marriage while living here in the state, California courts do in some cases recognize common law marriages from other states.

California’s Family Code § 308(a) states,

“A marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in California.”

This means, that if two people enter into a common law marriage in a state where common law marriage is recognized, that particular marriage could also be recognized here in California.

In 1986 the State Court of Appeals for the First District considered the case of Margaret and Alexander Smyklo. A lower court found the couple entered into a common law marriage while living in Alabama in the 1950s. The California trial judge stated,

“The court is satisfied from the evidence presented that the parties contracted a valid common law marriage under Alabama law in 1957, and that common law marriage is entitled to be recognized in this state as a valid marriage.”

The state appellate court upheld the lower court’s view that the couple entered into a common law marriage under Alabama law. This should not be construed to mean that the state of California would necessarily recognize all common law marriages created in another state in every case.

There are cases where a common law marriage might be disputed by one of the people involved. For instance, a husband might claim that he entered into a common law marriage, while the woman he was involved with might deny this to be true.

The court will also have to decide if the common law marriage being considered was valid based on the laws of the state under consideration — an often complicated process.

This section should highlight for anyone who has questions about their personal common law situation, the importance of consulting a lawyer. These questions can be extremely tricky, and a person with strong knowledge of the family code is needed to help straighten things out.

Which States Recognize Common Law Marriage?

According to the National Conference of State Legislatures, the following states continue to recognize common law marriage:

  • Alabama
  • Colorado
  • Iowa
  • Kansas
  • Montana
  • New Hampshire
  • South Carolina
  • Texas
  • Utah
  • Rhode Island

It’s important to keep in mind that this list may be incomplete, and in many cases, subtle exceptions and differences between states apply.

What if there is no common law marriage, but a man and woman own assets in California?

Such an arrangement occurs with relative frequency, and can lead to confusion when the couple decides to call it quits. If the couple has a child or children together, the situation can become even more complicated. There are a number of factors that would have to be considered involving an unmarried couple with personal assets — some situations will be more complicated than others.

Common questions of possession center around join bank accounts, joint debts as well as commonly-held property. The couple will want to begin by asking questions such as whether the jointly-held account gives equal access to the money within, whether either person is listed as a beneficiary on a 401 k or other account, as well as whose name is listed on real estate titles.

In cases involving separations, whether marital or a long-term domestic partnership, it’s always a good idea to consult an attorney to explore your options.

Consulting an Attorney

If you entered into a common law marriage in another state, and now you live in California, it might be a good idea to consult with a family lawyer. As this page has hopefully shown, the issue of common law marriage isn’t as cut and dried as one might expect in the Golden State.

Any time a couple decides to separate, whether they were united under common law marriage or some other arrangement, issues of who is entitled to property as well as who is responsible for debt can arise. Under these circumstances, it is recommended that folks discuss their options with a attorney. Doing so can potentially save money as well as frustration in the long run. If you have questions about common law marriage, or other family related legal issues, contact our office to see how we can help.

One thought on “Do California Common Law Marriages Still Exist?

  1. Cythia Barta

    Wohh just what I was searching for, thanks for posting .

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