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Common Law Marriage and California

Posted by attorney Stephanie Bamberger

What is "common law marriage"? Common law marriage (CLM) is a legal form of marriage that does not involve getting a license or other state-issued registration form, but requires the agreement and actions from both parties that reflect their belief of a binding relationship. Black's Law Dictionary defines CLM as a non-ceremonial relationship that requires "a positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, cohabitation sufficient to warrant a fulfillment of necessary relationship of man and wife, and an assumption of marital duties and obligations." Black's Law Dictionary 277 (6th ed. 1990). The requirements for establishing a CLM vary among the states where you can still establish a common law marriage. It is important to note that there are very few states where you can enter into a CLM. Currently, you can establish or start a CLM only in nine states (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma, and Texas) and the District of Columbia. A few other states recognize CLM's that were established before a certain date (Georgia, Idaho, Ohio, Oklahoma and Pennsylvania). In those states, if a couple separates and wishes to terminate their CLM, because their relationship is validly recognized as a marriage, they must formally terminate their marriage through the court. There is no such thing as a "common-law divorce".

Contrary to popular belief (or misunderstanding), it is not possible to enter into or establish a CLM in California. The ability to establish a CLM in California was abolished by statute in 1895. However, if a couple who have established a common-law marriage in a state that still recognizes CLM moves to California and then separates, the courts in California will recognize their CLM as a valid marriage and will divorce them in the same process as a couple who married with a license and ceremony. In order to make sure their rights are protected, a couple living in California, who believe they have a valid CLM, and are separating/separated should seek legal advice to ensure that their marriage is recognized and the process for terminating their CLM.

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