common law marriage California establishes the same legal rights and responsibilities between partners as a licensed marriage, without going through the formalities to obtain a marriage certificate. To understand common law marriages fully, couples need to know the requirements, how it is proven and terminated, the differences from traditional matrimony, and the implications for taxes, estate planning, and property rights in the state. While not as popular as it once was, common law marriage under California Family Code Section 300 allows a couple to gain marital status through mutual agreement and presenting themselves publicly as spouses over a period of cohabitation.
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Definition of common law marriage California
Common law marriage, also known as informal marriage, is a legally recognized marriage that takes place without obtaining a marriage license or having a formal ceremony.
In California, common law marriage is relatively uncommon compared to other states. This is because California law sets specific requirements for what constitutes a valid common law marriage within the state.
According to California Family Code Section 300, a common law marriage is established when a heterosexual couple does all of the following:
- Lives together as spouses
- Holds themselves out to the public as being married
- Consents and agrees to be married
All three requirements must be met for there to be a legal common law marriage California. Simply living together, even for many years, does not equate to common law marriage in the state unless the other two criteria are also satisfied.
The key element is that both partners must mutually consent and agree to be in a marital relationship, not just cohabitate together. By meeting the requirements, the law treats the couple as married even without a formal state-issued marriage license.
Requirements for a valid common law marriage California
As mentioned in the previous section, there are three basic requirements for a valid common law marriage California:
- Cohabitation – The couple must live together for a significant period of time in order to establish a life together as a married couple. There is no minimum specified time frame, but cohabitating for several years can serve as evidence of intent to be married.
- Holding Out – The couple must present themselves to the public as married. This could include telling family and friends they are married, referring to each other as husband/wife, using the same last name, filing joint tax returns, etc.
- Mutual Agreement – Both partners must consent and agree to enter into a marital relationship. This agreement does not need to be in writing, but there should be some evidence that both parties intended to be married.
All three criteria must be satisfied for a common law marriage to meet the legal requirements in California. Simply cohabitating alone is not enough. The couple’s behavior, actions, and statements must clearly reflect an intention to be married.
If proof of all three elements exists, the common law marriage will be treated as legally valid even without a formal marriage certificate in the state of California.
How common law marriage is established in California
In California, a common law marriage is established when a couple meets the three requirements outlined earlier: cohabitation, holding themselves out as married, and mutual agreement to be married.
There is no need to register a common law marriage with the state. The marriage is considered valid once the requirements have been fulfilled. The couple does not have to have a ceremony, take out a marriage license, or do anything formal to establish a legal common law marriage.
However, because there is no marriage certificate for common law unions, couples will need to provide evidence that they meet the criteria if they ever need to prove their marriage exists. Some examples of evidence that can establish a common law marriage include:
- Joint bank accounts or ownership of joint assets
- Leases or bills showing shared residence
- Referring to each other as “husband” or “wife”
- Filing joint tax returns
- Insurance policies naming the other partner as spouse
- Wills, trusts, or retirement accounts listing the other as beneficiary
The more evidence of the couple holding themselves out as spouses and intending to be married, the stronger the case for an existing common law marriage. Since the state will not maintain any record, the burden of proof falls on the couple if they ever need to validate their common law marital status.
Rights and responsibilities of common law spouses in California
Common law spouses in California have the same rights and responsibilities as couples in a licensed marital relationship. The law treats both types of marriages equally.
Some key rights of common law spouses include:
- Joint ownership of all property and assets acquired during the marriage. This is considered community property.
- Ability to go through divorce proceedings if the relationship ends. Common law marriages can only be terminated through legal divorce or death.
- Eligibility for spousal support like alimony if one partner is financially dependent.
- The same tax benefits and exemptions as married couples.
- Coverage under the other spouse’s health insurance plan.
- Ability to make medical decisions for an incapacitated spouse.
- Inheritance rights like pension funds, Social Security, etc if one spouse dies.
- Presumed joint custody of any children born during the marriage.
Along with equal rights comes equal responsibility. Common law spouses owe each other the same duties such as:
- Mutual respect and emotional support
- Financial support – being responsible for the basic necessities of life
- Duty to care for each other in sickness or disability
- Obligation to divide all community assets equally if the marriage ends
In the eyes of the law, common law spouses share identical rights and duties as formally married couples in California. The only difference is how the marriage originated.
Differences between common law marriage and regular marriage in California
While common law marriage confers all the same legal rights as a licensed marriage in California, there are some key differences between the two:
- Documentation – Regular marriages have a marriage certificate while common law marriages do not. The couple must prove their relationship status with other evidence.
- Taxes – Married couples must select their filing status as either married filing jointly or married filing separately. Common law couples can file as single if they prefer.
- Ceremony – Licensed marriages involve a civil or religious ceremony. Common law spouses do not have a wedding ceremony.
- Separate property – Any assets acquired before or during the marriage are considered community property for married couples. With common law marriage, property owned prior to cohabitating remains separate.
- Presumption – Licensed marriages are presumed valid by law. Common law couples must prove they meet the requirements for their marriage to be valid.
- Dissolution – While both types of marriages are terminated through divorce, licensed marriages provide an exact date while common law divorces must establish a length of the relationship.
- Remarriage – Those in licensed marriages must remarry if divorced. Common law marriages can be re-established by cohabitating again as spouses.
So in summary, the legal rights are identical but common law marriage operates through informal relationship behaviors rather than formal licensure and documentation. The process to establish and terminate the marriage is less officially defined.
Proving a common law marriage exists in California
Unlike formal licensed marriages, common law marriages in California do not provide couples with a marriage certificate to definitively prove their marital status.
If proof of marriage is ever needed, the burden falls on the couple to provide evidence that they meet the requirements for an informal marriage under California law. Some key ways to prove a common law marriage exists include:
- Providing documents with both partners’ names like bank accounts, property deeds, utility bills, etc. This helps establish cohabitation.
- Showing that the couple has comingled their finances and jointly owns major assets.
- Submitting copies of tax returns where the couple filed as married.
- Providing affidavits from family and friends attesting to the relationship.
- Demonstrating the use of the same last name by both spouses.
- Presenting insurance policies, wills, trusts, or retirement accounts naming the other partner.
- Offering evidence that the couple has referred to each other as “husband” and “wife” in writing or conversation.
- Establishing that the partners have been monogamous and sexually faithful during the time living together.
- Providing evidence of length of time living together as spouses.
The more proof and documentation that can be provided to demonstrate the three common law marriage requirements, the stronger the case will be for legal recognition of the relationship. Couples should take care to keep any evidence that can validate their marital status.
Tax implications of common law marriage California
Common law marriage has some unique tax implications that couples should be aware of when filing their taxes in California:
- Filing Status – Common law spouses can file individual tax returns as single or head of household rather than married filing jointly or separately. Some couples may pay less tax this way.
- Joint Returns – Spouses can still opt to file jointly and enjoy the tax benefits like income splitting and higher deductions/exemptions. This requires reporting marital status as married.
- Name Issue – If filing jointly, the names must match on tax returns. Couples in common law marriages may have different last names on their Social Security cards.
- Retroactive Returns – The IRS allows couples in common law marriages to re-file for the last 3 years as married filing jointly. This could lead to refunds.
- Gift Tax – Spouses can gift any amount to each other tax-free. Common law couples don’t automatically have this benefit and could be liable for gift tax.
- Estate Tax – Assets inherited from a deceased common law spouse may be subject to estate taxes over the exemption amount. A surviving married spouse typically pays no estate tax.
- Audit Scrutiny – Returns filed as head of household or single when in a common law marriage draw IRS attention for possible audit due to the inconsistency.
While common law couples have the same tax filing options, there are some disadvantages and risks for informal spouses. Maintaining good documentation is essential to validate marital status for tax purposes and avoid issues with the IRS.
Ending a common law marriage California
Common law marriages California can only be terminated through legal divorce or annulment, or by the death of one of the spouses. There is no informal process to end a valid common law marriage.
Some key things to know about ending a common law marriage California include:
- Requires Divorce Filing – The couple needs to formally file for divorce in court even if the marriage was not registered with the state originally.
- Must Establish Start Date – For the divorce proceedings, the spouses will have to provide evidence establishing the date they began their common law marriage through cohabitation and holding themselves out as married.
- Division of Assets – All community property and joint assets acquired during the marriage are divided. Separate pre-marriage property is not divided.
- Spousal Support – Courts determine support like alimony based on factors like income, needs, and ability to be self-supporting. Longer marriages typically warrant more support.
- Child Custody – If there are children of the common law marriage, child custody is determined based on the best interest of the child.
- No Six-Month Waiting Period – Unlike licensed marriages, there is no six-month waiting period for finalizing a common law marriage divorce.
- Remarriage Possible – Once divorced, the spouses can legally marry each other again or marry other partners.
Although an informal setup, common law marriages require the same formal divorce process as licensed marriages in order to be legally dissolved in the state of California.
Common law marriage and estate planning California
Common law spouses in California have the same estate planning privileges and responsibilities as married couples when one spouse dies. However, the informal nature of common law marriage means couples should take extra steps to secure their estate plan.
Some key considerations for estate planning with a common law marriage include:
- Create Wills – Each spouse should have a will detailing the inheritance instructions, naming the other partner if desired. Wills help avoid disputes over assets.
- Review Titles – Property deeds, bank accounts, and other assets should have joint titles to allow automatic inheritance or transfer upon death.
- Name Beneficiaries – On retirement accounts and life insurance policies, formally name the other spouse as beneficiary. Avoid just saying “spouse”.
- Record Proof – Ensure proof of common law marriage will be easily found, like filing joint tax returns and having joint accounts and liabilities.
- Update Documents – As assets change, keep updating wills, deeds, policies to reflect the current status and intent for inheritance.
- Consider Trusts – Living trusts can allow a smoother transfer of assets and avoid the delays and costs of probate court.
With no formal paperwork, common law spouses must take deliberate steps to document their relationship for estate planning purposes. Setting up clear inheritance instructions will help avoid family disputes if one spouse dies.
Common law marriage and property rights in California
Common law marriage confers the same property rights to spouses in California as a licensed marriage. However, there are some unique considerations for common law couples when acquiring property and assets.
Key property rights and issues for common law spouses include:
- Community Property – Assets purchased or earned during the marriage are jointly owned by both spouses, even if only in one name. This includes income, real estate, vehicles, etc.
- Separate Property – Assets owned before the marriage or received by gift/inheritance during remain separate property. This stays with the individual spouse if the marriage ends.
- Joint Titles – Placing both names on property titles and financial accounts makes it clear that assets are jointly owned community property with shared rights.
- Property Division – Community property is divided equally if the marriage ends. Separate property is not divided.
- Debt Liability – Spouses share responsibility for any joint or community property debts. Separate property debt stays with the borrowing spouse.
- Home Ownership – Special rules regarding the family home can give spouses property rights even if not on the deed.
- Rental Income – Rents or profits from community property are community income. Earnings from separate property remain separate.
Proper documentation is essential to define separate versus community assets and ensure common law property rights are enforceable. Consulting a lawyer can help couples optimize property management.
How long is common law marriage California?
There is no minimum or maximum duration required for a common law marriage California. As long as the couple meets the requirements of living together, holding themselves out as married, and mutually consenting to be married, it can be considered a valid common law marriage regardless of how long they have been together.
What is considered a common law marriage California?
A common law marriage California is established when an unmarried heterosexual couple lives together, presents themselves to the public as spouses, and both consent to be married. No ceremony or marriage license is required.
Do unmarried couples have rights in California?
Yes, unmarried couples who meet the requirements for a common law marriage have the same legal rights in California as married couples. They are treated equally in regards to property, taxes, inheritance, medical decisions, alimony, and other marital rights.
When did California get rid of common law marriage?
California never officially prohibited or invalidated common law marriage. It simply became less common over time as formal marriage licenses were made a requirement in the 19th century. However, common law marriage can still be legally established today by meeting the requirements.
Are you married if you live with someone for 5 years?
No, cohabiting alone for 5 years does not establish a common law marriage California. The couple must also hold themselves out as married and mutually consent/agree to be married. Just living together, even for long periods, does not equal a legal marriage.
What is it called when you live together for 10 years but not married?
Living together without getting formally married, even for 10 years or longer, is generally referred to as cohabitation. If the couple does not present and conduct themselves as spouses, it remains a non-marital cohabiting relationship rather than a common law marriage.