Throwing Light on Common Law Marriage

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation attorneys; California Divorce MediatorsWhen a couple that intends to get married is allowed to forgo a traditional wedding and marriage license and still acknowledge their status as a married couple, this practice is known as the common law marriage.  The purpose of this article is simply to explain what common law marriages are because some people have heard of it but don’t entirely understand the concept.

No formal registration is required in this form of marriage, and only a few jurisdictions allow it. California is one of those jurisdictions that does NOT recognize common law marriages.  Couples in a common law marriage have the same rights as those who got married in a ceremony with legal licenses. They follow the same rules and have equal obligations as any other married couple.

When does a marriage become common law?

In order for a marriage to be regarded as common law, the partners involved must behave as a married couple. Simply cohabiting for a long duration will not constitute a common law marriage. If they live together for a long duration, share their last names, have children, refer to each other as their spouse, file joint tax returns, hold joint bank accounts or credit cards etc. then in the jurisdictions that allow it, their marriage will be considered as common law, and thus legal. Both partners must be of legal age and also of sound mind. They must also not be married to someone else, because in that case this marriage would be considered null and void.

Are common law marriages recognized outside of the jurisdictions that allow them?

Even though most states may not allow a couple to enter into a common law marriage and only recognize traditionally married couples, if a couple in a common law marriage moves to these states from a different one where it is allowed, then the marriage will be recognized. This is because when the couple entered the common law, they were still in a jurisdiction that considers it valid.

How can partners involved in a common law marriage be separated?   

Even if the marriage was common law, once a couple has entered into it, they need to follow the same procedures to obtain a divorce as do other traditionally married couples. So a common law marriage is easy to get into but getting out of one is not as simple.

To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”