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Los Angeles Family Law Specialists

Steve Fernandez and Mark Karney are Certified Family Law Specialists* with over 50 years of combined experience.

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 and enter a valid marriage or make the marriage official. However, there is another way for people who live together and satisfy other requirements to get married in the U.S., and it is called common law marriage.

What is a Common Law Marriage?

A common law marriage in California, as well as in other U.S. states that recognize 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 unmarried couples 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 or that couples live together for a specific period of time, the couple referring to themselves as being married, and for both people to have the intent to be in a marriage with each other.

Not All States Recognize Common Law Marriages

This is not something that can happen in all of the states in the U.S. Most of them 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. That means the State of California does not recognize common law marriages.

Now, only a small handful of states allow these 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 recognize common law marriage, because other states recognize it and do allow it to happen, and because people who are 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.

This means that California, even though it does not recognize a common law marriage, must recognize as married two people who were 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 together like a married couple, again. They shared a bedroom, raised their two children, filed joint tax returns, and entertained friends in their house together as a couple would. Under Alabama’s laws, the couple had satisfied all of the requirements and was technically remarried.

After three years of cohabitating and living together, 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. This lasted until the husband moved to Hawaii, where he eventually married someone else.

The wife filed an action in California courts 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 in common law marriage in California while they had lived together for three years in the state. After finding that they had been married under common law in Alabama, the court in California decided that this marriage was due to Full Faith and Credit under the Constitution. 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 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 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 California common law marriage, need legal advice, or if you are worried that you might be in one, contact the family law and divorce attorneys at Fernandez & Karney online or at (310) 870-1862.