Steven Fernandez |

Common Law Marriage

Some couples do not want to go through the process of having their relationship formally recognized by the government. Some cohabitate for so long that the government recognizes a de facto marriage between the couple. Some states permit and acknowledge these de facto marriages – often referred to as common law marriages.

If you live in California, however, you will be out of luck if you’re waiting for the state to recognize a union between you and your long-time partner. California does not recognize common law marriage and, as a result, does not extend any of the benefits associated with marriage or domestic partnership to couples that are not legally married.

There is one small exception to California’s reluctance to acknowledge common law marriages. If a couple lived in a state that did recognize their common law marriage, California will assist with a divorce should the couple decide to call it quits.

So, since California does not recognize common law marriage…what happens if a long-time couple splits?

Division and Assignment of Property Can Be Tricky After Common Law Marriage Split

One of the benefits of marriage is that property rights are generally clearly defined. California is a community property state, meaning that property (and debts) assumed during a marriage is considered to be jointly owned by both spouses. Absent a prenuptial agreement that directs otherwise, property is generally equally divided between spouses upon divorce.  When a long-time nonmarital couple splits there are few legal resources to assist in the division and assignment of assets.

Palimony Claims

Marvin claims date back to an old case – Marvin v. Marvin – where an unmarried couple sought the court’s assistance in dividing assets after a split. The court held that nonmarital partners have the right to enforce any implied or express agreements for support or property in the event of a separation. However, making and enforcing a Marvin Claim (also known as palimony) requires that a civil claim is filed in court.

The basis of a Marvin claim is that the couple lived together for so long and essentially acted as a married couple that it is difficult to divide assets and liabilities. Many palimony claims also request support – similar to alimony for divorcing married couples. Courts that review claims for palimony weigh factors including:

  • Whether one nonmarital spouse supported the other;
  • Whether both nonmarital spouses contributed to the purchase of property;
  • Whether one nonmarital spouse performed valuable services for the other;
  • How long the nonmarital spouses lived together; and
  • If any express or implied contracts exist concerning property division or support.

Breach of Contract Arguments

Nonmarital spouses seeking to define property and support rights may be able to enforce express or implied contracts through a claim for breach of contract.

Implied contracts are those that are created through the words and actions of the spouses. These are generally difficult to prove since there is no formal acknowledgment of the agreement. A nonmarital spouse pursuing a breach of implied contract must prove that there was an implied understanding to share property or provide support. Again, courts hearing a breach of contract case will consider a number of factors, including:

  • Why the nonmarital spouses avoided conventional marriage – was it specifically to avoid the community property and alimony rules associated with marriage?
  • The nonmarital spouses’ banking habits – did they have separate or joint accounts?
  • The nonmarital spouses’ credit behavior – did they have separate or joint credit accounts?
  • Did the nonmarital spouses split or share expenses?
  • Was title to property taken together or separately?

Express contracts are easier to prove because they are written. A successful breach of express contract case will require a showing of an agreement and a failure to meet the responsibilities set forth in such agreement. A living together agreement is a common example of an express contract nonmarital spouses may have. The living together agreement is essentially a prenuptial agreement, without the requirement of marriage to make it valid. The agreement dictates how property will be divided in the event of a breakup and if any support is to be provided. 

Importance of Legal Recognition of a Marriage

There are many reasons couples get married in California. There are many benefits to a legal marriage that should not be discounted. These include:

  • Clear cut property division and assignment rules;
  • Alimony;
  • Preferential tax treatment;
  • Estate planning and probate benefits.

Alternatives to Common Law Marriage

If a couple is strongly averse to a traditional marriage, but still interested in obtaining the rights and benefits associated with marriage, they can seek a domestic partnership. California was one of the first states to recognize domestic partnerships and offer legal rights to couples generally reserved for marriage.

If you live in California and are interested in learning about the benefits of marriage or a domestic partnership contact Fernandez & Karney today.