What is Common Law Marriage?
A common law marriage, in essence, is when both partners agree to enter into a marital relationship, however do not obtain the proper marriage license as dictated by the state. Typically, this involves either being married by common law or informal marriage, or by putting multiple stipulations into a legal contract such as cohabitation, shared property and finances, and other similar conditions. It has not been an absolute or strictly codified set of conditions, but usually will include most of the above stipulations. While several states allow this type of contract marriage and recognize it as equal to a traditional marriage , California has not yet done so. Thus, in most cases, if a person would like to be married in the state of California, he or she must obtain the official marriage license to do so, regardless of the terms of the written or implied contract with their significant other. In California, this means that there is no requirement of shared property, shared finances, or even cohabitation to be classified as legally married. If you have a marriage license and were married at a courthouse or within a recognized religious institution, you are married. Common law marriages and informal marriages have no value in the eyes of the California divorce court.
California’s Position on Common Law Marriage
Common law marriage is not recognized in California as a legal equivalent to a ceremonial marriage. In fact, since 1895, the state Constitution has provided that no marriages can be contracted without a public license, and only a civil marriage qualifies. The California Family Code § 300 states: "Marriage is a personal relation arising out of the civil contract between a man and a woman." In People v. Palma, 36 Cal 2d 387 (1959), the Supreme Court of California reiterated the idea that some unions may be "see[ing] [] as meretricious in character," extending the concept of common law marriage only to relationships of "long duration where there is an agreement to be married . . . and where there is a general reputational recognition that a common law marriage exists." For the most part, California law does not recognize such agreements unless the parties enter into a formal marriage. Thus, people in California who choose to live together without a formal marriage are not entitled to any of the rights and benefits of legally married persons.
Debunking the ‘Seven-Year Rule’ in California
The myth of a "seven-year rule" in California continues to be perpetuated, and must be debunked. This misconception exists because some residents might have lived in other states where such a rule applied, or because they know people who have lived together in California for so long that they assumed it triggered a marriage. Upon reflecting on the "seven-year" rule, however, the critical distinction is that California has no common law marriage. After that seventh year together in the Golden State, unmarried cohabiting couples fail to become legally married. They may think they are married, but they are really and legally just living together. While there may be other disputes, living together for years does not mean that an unmarried couple will enjoy the same rights, benefits, and obligations as a married couple when their cohabitation ends.
The whole idea behind the seven-year rule that continues to exist in many states is that after seven (or five or ten) years together living as married, the unmarried couple is considered married as a matter of law, and all the same rights and benefits are automatically conferred. There are limited exceptions, apparently only involving pension rights, which would give cohabitants the same rights as spouses. But except for that narrow category, these cohabiting couples would have the same rights as married couples if common law marriage applied in California.
However, the California State Legislature rejected the concept of a common law marriage in California. We do not recognize that kind of legal relationship, and that can be a good thing. For example, it can benefit an unmarried couple by not subjecting them to those marital-spouse obligations and rights. Or, it can subject them to a whole area of litigation that would occur after their split. Because an unmarried couple is not legally married, when they break up, they do not have the right to spousal support or community property rights and claims. Those are the financial aspects of a marriage that are usually portrayed in the movies or highlighted by the media. However, there is also a huge emotional and medical aspect to a marriage, that does not exist for unmarried couples. Should either partner die, legally married persons are next-of-kin. Unmarried couples have no such right, leaving many surviving unmarried persons out in the cold at the worst possible time. In those circumstances, common law marriage would be a benefit. Who can say which side of the coin should be preferred and be considered as legal policy? One side is not necessarily better than the other, but that is a policy decision made by the California State Legislature, not a judge.
What Comes Instead of Common Law Marriage
In the absence of a domestic partnership or legal marriage, a cohabitation agreement has become the preferred alternative for couples to formalize their relationship. California law permits agreements between two people living in the same residence that are not to be enforced until after marriage or termination of the relationship. These cohabitation agreements generally address the division of property acquired during the relationship, spousal support, reimbursement and similar terms as a pre-nuptial agreement, thus alleviating the necessity of further costly litigation if the couple becomes separated , ends their relationship or moves out of the common residence.
It is important to understand that there are some pitfalls if a cohabitation agreement is not prepared properly. Under California law, agreements are broadly construed and, like a pre-nuptial agreement, are generally enforced except on a showing of fraud or unconscionability.
California also has domestic partnership rights, rights which may be automatic with respect to same-sex couples and which can also be registered with the State of California as a matter of law for heterosexual couples. These domestic partners are entitled to the same state rights and benefits, including the right to sue for support following separation, as married spouses.
Legal Options for Cohabiting Partners
If you are cohabitating and you are pleased with that arrangement, you do not need to take additional legal steps, but consider a few things: signing documents relating to the management of property; creating wills, trusts, health care proxies, power of attorney, and other documents that you feel would consolidate ownership and settle issues. A good attorney can advise you properly if it is necessary for you to formalize documents in an effort to protect your joint and individual rights and interests. An arrangement could be made, for instance, that allows for the sale of property only with permission from both parties. Also, a court may impose a constructive trust or other legal remedy if a party alleges that the other has engaged in fraud relating to property in a divorce proceeding or subsequent to cohabitation.
The best solution, of course, is to put everything onto paper while you are still in a position to be able to do so. The court will go by what the documents say, although they can be challenged in court depending on the circumstances.
Final Thoughts: Living Together in California
Whether you are considering a romantic relationship with cohabitation or whether you want to know more about your current unregistered domestic partnership, it is important to understand the legal framework in California. If you do not navigate that framework correctly (such as failing to formally register as a domestic partner or delaying the registration beyond two years), significant hassles and costs may ensue and you may be unable to establish a legally enforceable right to property or other assets obtained during your relationship.
Although the same Public Policy woes that beset one unhappy unmarried couple getting divorced may not be at play, the system set up by California very much favors the married and the legally recognized domestic partnership and sometimes results in wife and husband or domestic partner and co-partner getting the same division of their tens of thousands of assets . (As a side note, this does not mean that domestic partners and cohabiting partners cannot negotiate their own agreement to carry out a division of assets, it just means that there is no "one size fits all" division that can be presumed to apply)
There are certain rights that cohabiting partners obtain if they have been cohabiting together for a period of time, but if you are ever in doubt about what those rights are (whether you are seeking to enforce them and cannot find an answer in the case law or statutes or whether you are unsure whether you have such rights), it is always best to see a knowledgeable lawyer who can advise you of the appropriate path forward in getting yourself a legally recognized separation from your partner(s) or, if that is not what you want, cohabiting with them (wherein you are married in all but the eyes of the law).