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What is Common Law Marriage?

Many potential clients will call my office and ask what their rights are when they have been living with someone for years, 7 years and more, and they were asked to leave the house with nothing.  I have to kindly explain since you are not married, you have no rights. 

They are stunned to find out they don’t have rights under California Family Code and the protections afforded to married couples. Your rights fall under civil law which are minimal.

It may surprise you to know that there is no such thing in California as common law marriage, or to be more accurate, a common law marriage can never be created in California.

It’s widely believed that if a couple lives together for at least 7 years and holds themselves out to the world as a married couple, then the couple will be considered to be legally married.

While this can be possible according to the laws of a few states, this is NOT possible in California as California abolished common law marriages over a hundred years ago.  California will, however, recognize common law marriages that were created in states which do recognize them.  It must be a legally formed marriage in that particular state for California to recognize as a legal marriage.

While this can be possible according to the laws of a few states, this is NOT possible in California as California abolished common law marriages over a hundred years ago.  California will, however, recognize common law marriages that were created in states which do recognize them.  It must be a legally formed marriage in that particular state for California to recognize as a legal marriage.

The following states recognize current or prior formed common-law marriage:

  1. Alabama
  2. Colorado
  3. District of Columbia
  4. Georgia
  5. Idaho
  6. Iowa
  7. Kansas
  8. Montana
  9. New Hampshire
  10. Ohio
  11. Oklahoma
  12. Pennsylvania
  13. Rhode Island
  14. Texas
  15. Utah

It’s essential to note that the recognition and requirements for common law marriage can change, and new laws may be enacted. Additionally, some states may recognize common law marriages that were established before a specific date, even if they no longer allow new common law marriages.

Can I Get Palimony?

I get a TON of calls about seeking Palimony and most people have an unfounded belief about what palimony is.

Palimony is a term used to describe the division of financial assets and support between unmarried couples who have lived together in a long-term relationship. It is often associated with situations where one partner claims the right to financial support or a share of assets after the relationship ends, similar to the way alimony operates in divorce cases.

Palimony is not recognized as a distinct legal concept in all jurisdictions, and its availability depends on state laws. In the context of California, palimony claims have been recognized to some extent, primarily through the concept of implied or oral contracts. California courts may consider a claim for support or property division if there is evidence of an implied or express agreement between the parties regarding financial support or sharing of assets.

It’s crucial to note that palimony cases in California are highly fact-specific, and not all claims are successful. Courts will typically examine factors such as the length of the relationship, the financial contributions of each partner, and any explicit or implicit agreements regarding support or property sharing.

Palimony actions started in the early 1970s after actor Lee Marvin (think The Dirty Dozen and Cat Ballou) broke up with his girlfriend Michelle Triola who he had lived with for several years.  After the break up, Triola took Marvin to court claiming that he had orally promised to financially support her for the rest of her life in exchange for her giving up her own acting career to take care of him.  Marvin denied he ever made that promise, and in the end, Triola lost her case, but in the process, the California Supreme Court had established the rights of unmarried cohabitants.

Note that Triola lost, she did not get any support for which she sought.

Well, Did You Have a Contract?

Unwed couples who aren’t putative spouses (because they never tried to get married), but had an agreement to treat assets like community property or promised lifetime support, despite the fact that both partners knew they were not married, can enforce this agreement and the type of support would be called palimony.  Here, no one is entitled to support or property rights under California family law, but there can be rights created under the oral or written contract.

The problem for Triola, and many since, is that it is very hard, almost impossible, and very expensive to prove the terms of an oral agreement.  Palimony suits are very hard to prove as most agreements are not in writing and oral contracts are next to impossible to enforce.  With oral agreements you must have actions you can rely on to show there was reliance on an agreement.

It generally boils down to a he said she said argument and that is simply not enough as this type of action is pursued in Civil court rather than Family court, as this would fall under breach of contract.  Civil court has a higher burden called clear and convincing evidence, think convincing 75 people out of 100, so you must have very clear evidence which most do not have.

Civil courts consider several factors when determining whether a contract was formed. Contract formation involves the mutual assent of the parties to be bound by the terms of an agreement. Here are some key elements that a civil court may consider in deciding whether a contract was made:

  1. Offer and Acceptance:
    1. Offer: One party must make a clear and definite offer, indicating an intention to be bound by certain terms.
    2. Acceptance: The other party must accept the offer, demonstrating agreement to the proposed terms. Acceptance is generally effective when communicated to the offeror.
  2. Intention to Create Legal Relations:
    1. Courts often look at whether the parties intended for their agreement to be legally binding. Social agreements or agreements made in jest may lack the necessary intent.
  3. Consideration:
    1. For a contract to be valid, there must be something of value exchanged between the parties. This is known as consideration. Both parties must provide consideration for the contract to be enforceable.
  4. Legal Capacity:
    1. The parties entering into the contract must have the legal capacity to do so. This means they must be of sound mind, not under the influence of substances, and of a legal age to enter into contracts.
  5. Legality of Purpose:
    1. The purpose of the contract must be legal. Courts will not enforce contracts that involve illegal activities or go against public policy.
  6. Certainty of Terms:
    1. The terms of the contract must be clear and definite. Vague or ambiguous terms may render a contract unenforceable.
  7. Consent and Genuine Agreement:
    1. The parties must freely and voluntarily consent to the terms of the contract. If there is duress, fraud, undue influence, or mistake, it may affect the validity of the agreement.
  8. Statute of Frauds Compliance:
    1. Some types of contracts are required to be in writing to be enforceable. The Statute of Frauds identifies these categories, such as contracts involving real estate, marriage, or agreements that cannot be performed within one year.

These elements collectively contribute to the court’s assessment of whether a contract was formed. If any of these elements are lacking or compromised, it may impact the court’s determination of the existence and enforceability of the contract. Legal advice should be sought for specific situations, as contract law can be complex and subject to interpretation.

What If I thought We Were Legally Married?

This could be a viable option, but this is again, under very very limited facts.  If one or both persons in the relationship had a reasonable and good faith belief that they had entered into a valid marriage, but it turned out the marriage was void, then that person can be considered a “putative spouse.”

To be given the status of a putative spouse, it’s legally not enough to say that you simply believed you had a valid marriage, instead, the couple must have actually gone through the motions to get married, yet had something go wrong when trying to comply with the legal requirements for marriage (often this happens when one person was in a prior marriage and mistakenly thought that he or she was legally divorced).

For example, if you truly believed you were divorced from your former spouse because they told you the judgment was entered, when it fact it was not entered and you were still married at the time you had your second marriage.  Also, this good faith belief that you’re married must continue throughout your marriage, if at any point you find out that the marriage is invalid, you lose putative status.

Recently, it was also established that these same principles can be applied to couples who were in an unregistered domestic partnership.  A person with putative spouse status will be entitled to share in property acquired during the invalid marriage or domestic partnership under our community property laws, and to any spousal support that’s required once the relationship is terminated.  A putative spouse may also have marital-type rights in other situations as well, such as workers compensation or retirement benefits.

How Do I Protect Myself?

Many of these troublesome issues can be resolved with a written “cohabitation agreement” to help protect your interests if the relationship dissolves.  As the two of you contribute toward your financial future together, a cohabitation agreement can set out fair arrangements regarding property ownership and division, and any support, similar to how a prenuptial agreement works.

If you lived together before getting married, then both a civil palimony lawsuit and family court divorce (dissolution) action may be necessary, but note that palimony suits must be brought within a certain time period after the agreement is broken to prevent your claim from being barred.  To best protect yourself in the future, you and your partner should enter into a cohabitation agreement as this will give you the ability to enforce your agreements.

For this reason, it’s important to put promises into writing and couples who live together without getting married or entering into a domestic partnership should be forewarned.

In today’s society, it is completely acceptable to live together and never get married, some people just don’t want to get married. However, if you are going to do this protect yourself and avoid finding yourself in a situation where you have no rights to any income or assets you and your partner grew together while living in a non-marital or cohabitation relationship.

While we cannot assist you with your palimony pursuit as we do not practice civil law, our skilled family law attorneys can prepare an effective and comprehensive cohabitation agreement, to prevent problems in the event of a breakup.  Don’t find yourself calling us to discuss the rights you don’t have, but rather the rights you do have because you made the smart decision to enter into a legally binding contract.


To reach our San Diego divorce attorneys to assist you in preparing your cohabitation agreement or any other family law matter,  call (619) 289-7948. 



[This article has been updated since it’s original publish date; image courtesy of Pexels]