Common-Law Marriage in California

Posted September 19, 2014 in Family Law by Lonich Patton Erlich Policastri.


September 19, 2014
Common-Law Marriage in California
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A common-law marriage is an informal marriage by agreement, without compliance with the statutory formalities associated with a marriage license. Only a handful of states recognize common-law marriage, and each state has specific requirements. In Texas, for example, the elements of a common law marriage include 1) an agreement presently to be husband and wife, 2) living together as husband and wife, and 3) holding each other out to the public as such. Once a common-law marriage is established, the spouse has the same rights as a married spouse and the marriage can be terminated only by death, divorce, or legal separation.

California abolished common-law marriage in 1895, and a couples’ failure to comply with the statutory marriage requirements will invalidate a marriage. However, non-marital cohabitation is not a barrier to the enforcement of express and implied agreements. California courts recognize Marvin claims, where unmarried individuals can enforce property, support, and other financial agreements arising out of their relationship. Such equitable remedies include: action on an implied contract based on the parties’ conduct (e.g., to share earnings and provide support or for support upon termination of relationship); action for specific performance of personal property with sentimental value (e.g., to return family heirlooms); and action to recover the reasonable value of services rendered, less the reasonable value of support received. Further, if traditional remedies prove inadequate, trial courts may create additional remedies to protect the parties’ reasonable expectations.

In other words, there is no way to form a common-law marriage in California, no matter how long you live with your partner. Under Family Code section 308, California will recognize common-law marriages validly established in other states. This means that a couple who establishes a common-law marriage in Texas will be treated as married if they move to California. Non-marital parents have the same custody and visitation rights as married parents. However, the recognition of a common-law marriage comes with the recognition of a spousal status, and this is significant with regards to tax, property, and inheritance issues.

For example, the Texas couple can use the “married filing joint” status with both the IRS and the California Franchise Tax Board. An employer, even the California government, must provide medical insurance to the spouse. The spouses receive community property rights. Each spouse will be considered a surviving spouse for purposes of the California intestate system and for social security survivorship benefits. Additionally, to end the marriage, the common-law spouse must file for divorce.

Recognizing a common-law marriage in California can quickly become a complicated legal matter and should be discussed with an attorney. If you have any questions about a Marvin claim or common-law marriage, please contact our California Certified Family Law Specialists. Our attorneys have decades of experience handling complex family law and estate planning matters and offer a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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