Steven Fernandez |

Family Law Insights & Advice

When people think of marriage, they think of a ceremony, usually in a church, where the couple formally pronounces their vows in front of their families, friends, and a member of the clergy. At the very least, it involves a trip to the local courthouse to file papers making the marriage official. However, there is another way for people to get married in the U.S. called common law marriage.

What is a Common Law Marriage?

A common law marriage is a legally binding marriage between two people, even though they did not have a formal wedding ceremony or file the necessary paperwork with the state. Instead, a handful of requirements are necessary in order for the couple to be considered automatically married under the common law.

These requirements vary, depending on the state in which the couple is living. However, in most of the states that do recognize common law marriage, these requirements usually involve cohabitation for a specific period of time, the couple holding themselves out to others as being married, and for both people to have the intent to be married to each other.

Not All States Allow for Common Law Marriages

Common law marriage, however, is not something that can happen in all of the states in the U.S. Most states have formally abolished common law marriage by passing laws that prohibit it from happening within their borders. California is one of these states, and was actually one of the first states to abolish common law marriage by statute back in 1895.

Now, only a small handful of states allow common law marriages to happen within their borders: Alabama, Colorado, Iowa, Kansas, Montana, New Hampshire, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia.

Despite the fact that California does not allow residents to become married to each other under the common law because other states in the country do allow it to happen, and because people who are common law married can still move into our state, California still has to deal with common law marriage.

Common Law Marriages Must Be Recognized in Other States

The Constitution of the United States does not have much to say about marriage. However, one of the places where it does impact marital issues is the Full Faith and Credit Clause. This clause, which is found in Article IV, requires each state to give “full faith and credit” to the laws of the other states in the country, requiring states to honor the laws of other states and enforce them in situations where they rightfully apply.

The purpose of the Full Faith and Credit Clause is to prevent people from avoiding their legal problems in one state by simply moving to another one. Instead, when the laws of another state apply to a case, states have to blindly defer to them and apply them as if they were their own.

When it comes to common law marriages, this means that California, even though it does not allow California citizens to become married under the common law, must recognize as married two people who were common law married in a state that allows it, like South Carolina.

An Example of How Common Law Marriage Recognition Works

An example of how California is bound by the Full Faith and Credit Clause to honor common law marriages that happened in other states comes from a case back in 1986, In re Marriage of Smyklo.

In this case, the husband and wife married in 1941. However, they separated and divorced in 1953, and the husband gained custody of their two young children and moved to Huntsville, Alabama, one of the states that does recognize the validity of common law marriages.

Four years later, in 1957, however, the husband asked his ex-wife to join him in Alabama. While in Alabama, the ex-spouses lived like a married couple, again. They shared a bedroom, raised their two children, filed joint tax returns, and entertained friends in their house together, like a couple would. Under Alabama’s laws regarding common law marriage, the couple had satisfied all of the requirements, and was technical remarried by common law.

After three years of cohabitating, however, the couple – now married by common law – and their children moved to California, where a marriage by common law is not possible. They stayed in California from 1960 through 1976 without officially marrying in the state. This lasted until the husband moved to Hawaii, where he eventually married someone else.

The wife filed an action in the courts of California for a determination on whether she was married to the husband, or not. Even though the court was in California, it applied the laws of Alabama to determine whether the couple had been married under common law while they had cohabited for three years while in that state. After finding that they had been married under common law in Alabama, the court in California decided that this marriage was due Full Faith and Credit under the Constitution, and that California had to acknowledge their marriage, even though it could not have happened in our state.

The Family Law Attorneys at Fernandez & Karney

Common law marriages create a complexity in one of the aspects of the law that should seem to be the most straightforward – whether you are married to someone else, or not. Even though it should be a simple question to answer, the reality is that there are complexities and that, even if you are currently in a state that does not allow marriages to happen under common law, these states still have to recognize common law marriages made in states that do allow them to happen.

Making a mistake on this question can be shocking. To find that you are legally married to someone else when you had never had a wedding can be a surprise. It can also be costly if you decide that the next step that you want to take is a divorce. If you have a question about common law marriages or are worried that you might be in one, contact the family law and divorce attorneys at Fernandez & Karney online or at (310) 870-1862.