Rules for California Common Law Marriage

If you are interested in entering a California common law marriage, you need to know that there is no such thing. There’s a common misconception that if you live together for a certain length of time, it amounts to a common law marriage. This is just not true in the State of California.

The common law marriage is a legal category of man-woman pairing that exists in only about 15 states and the District of Columbia. You will not find California common law marriage among them.

In states where it is recognized under law, heterosexual couples are required to do a number of things. They need to live together for a significant (but undefined) period as a married couple, the wife typically must use the husband’s last name, they must refer to each other as husband and wife, and share finances and property while filing joint tax returns. These spouses are treated exactly like formally married couples, and a legal divorce is required to end the marriage.

In Alabama, a common law marriage is valid when there is a clear capacity to present agreement or consent to be husband and wife, to enter into a marriage, and there is public recognition of the existence of the marriage and its consummation. In Texas, the law has termed the common law marriage an “informal marriage”, making provision for couples to make a “Declaration and Registration of Informal Marriage” and make it formal.

Some states, while not allowing common law marriages to be entered into on their own soil, recognize common law marriages entered into in states where they are permitted. An example of this is Maryland, which is a state where there is no legal provision for its own common law marriages.

There’s no uniform view on the concept, neither is it permitted under federal law. More to the point, divorce rates show how fragile formal marriage has become as an institution and how prone people are to change partners.

If formal marriage itself is so threatened, it is no wonder the common law marriage is becoming a fading institution even in some of the states where it currently exists. The absence of a California common law marriage is proof of that.

Georgia, Idaho, Ohio and Pennsylvania have banned it at different points in time. In these states, it applies legally for only those who have entered into a common law marriage in the state before those dates. In New Hampshire, common law exists for inheritance purposes only.

California’s response to the need for a California common law marriage provision has solved the issue quite adroitly. It recognizes the actuality of the relationship without trying to spell it out legally in impossibly vague terms of various common law marriage legislations. Besides, the outward symbols of a marriage have really to do with shared surnames, acknowledgement of partners as ‘husband’ and ‘wife’, joint finances and property, and legal inheritance issues.

California recognizes that sharing of names is easily achieved through simple affidavits, and identity as husband and wife by social use and acceptance. What really matters is the fact of the conjugal partnership and its consequences for progeny and for property.

The state’s response to the need for a California common law marriage is reflected in the legal provision of domestic partnership. Instead of a California common law marriage, California’s Domestic Partnership Law, AB 205 makes better practical sense.