Many people believe that when a couple lives together for an extended period of time, they have entered into a “common law marriage.” While there are several states that recognize common law marriage, California is not one of them. However, many couples choose to cohabitate rather than get legally married. In these cases, there are still certain rights they may be entitled to assert if the relationship does not work out and they choose to go their separate ways.
A common law marriage is one in which the couple has lived together for an extended period of time and hold themselves out to be a married couple. But in a common law marriage, there is no civil or religious ceremony. Instead, the marriage is typically based on the length of time the couple cohabited. Each state that allows common law marriage has its own legal requirements.
In addition, a common law marriage usually has the same characteristics as a formal marriage. For example, a couple may file taxes jointly, share bank accounts, purchase a home together, and have children. However, these types of marriages are never officiated and licenses are not issued.
California ended common law marriage in the state in 1895. Critically, California Fam Code § 300 sets forth the criteria for a valid marriage entered into within the state. The statute specifies the following: “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 . . .”
Although California does not acknowledge common law marriage, if you were married by common law in another jurisdiction, California may still recognize the marriage as being valid. This means that in the event you and your spouse part ways, a California court may have the authority to divide your property and assets and grant financial support.
If you and your partner choose to live together in California but remain unmarried, it’s crucial to be aware that you do not have the same rights as married spouses. Neither partner is entitled to automatically inherit from the other in the event one passes away. Additionally, if you decide to separate, the same legal mechanisms are not in place to divide assets and property as in a divorce.
One way that couples can protect their property rights and divide assets when a union is not legally recognized is by entering into a cohabitation agreement. This is a legally binding contract that unmarried couples can enter into that can address ownership of real and personal property. It can also outline the financial responsibilities of each partner and include budget information.
Even though cohabitating couples do not necessarily have the same property rights as spouses, absent a written agreement, it should be noted that the child support laws remain the same. Regardless of whether parents were legally married, both have a financial obligation to support their children. Unmarried parents also have the same custody rights as those who were married.
While the rights of cohabiting couples might be limited, California courts recognize claims for “palimony” when an unmarried couple parts ways. Essentially, palimony is spousal support for a partner who was financially dependent on the other but there was not a valid marriage. Under the precedent established in the case Marvin v. Marvin, if partners have an express or implied agreement that they would financially support one another or share property, the agreement would determine the outcome of the case.
When determining whether a claim for palimony — also known as a “Marvin claim” — is permissible, a California court will consider several factors. First, the court will look to whether there was a written contract or cohabitation agreement that specifies each partner’s financial responsibilities. If none exists, a judge will evaluate whether the contract was implied.
A California judge may look at several factors in deciding a palimony claim, including:
It’s important to understand that you are not automatically entitled to palimony just because you lived with your partner while remaining unmarried. Unlike spousal support, palimony is created by contract, not statutory law.
If you and your partner were married under common law in another state and moved to California, or you cohabitated within the state without legally marrying, you may have many questions about your property and assets in the event you part ways. A skilled divorce and family law attorney can advise you concerning your legal rights and ensure they are adequately protected. The Law Offices of Rick D. Banks is committed to helping clients navigate the legal system and achieving favorable results in their cases.
The Law Offices of Rick D. Banks has been assisting clients throughout Fresno and the surrounding area in their divorce and family law matters for more than 20 years. To schedule a no obligation consultation, call (559)222-4891.