COMMON LAW MARRIAGE

Common law marriage is the recognition of a legal relationship between two people who did not actually or formally marry. Many people think that living together for several years will give rise to a common law marriage, resulting in the right to spousal support (alimony) or other rights, including inheritance of property.

California, like the majority of states, does not recognize common law marriage. It does, however, recognize “putative spouses,” as well as provide for “Marvin actions.” Moreover, if a common law marriage IS established in another state which recognizes common law marriages, California will recognize it as a valid marriage.

Putative spouses come about when one or both spouses, “believed in good faith that the marriage was valid.” (Cal Fam Cod section 2251 (http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=02001-03000&file=2 250-2255).) This means either both parties reasonably believed that they had a legal marriage (but, for instance, the marriage certificate issued was for some reason, defective), or one of the parties reasonably believed so, but was unaware of some defect (such as a pre-existing wife or husband). Simply living together does NOT lead to putative spouse status. There must be some reason that the spouse or spouses believe that they are married – there generally must be formal ceremony, and the belief that a valid marriage certificate was issued. Putative spouses are treated like actual spouses for purposes of probate, and for purposes of determining who should be the representative of a decedent’s probate estate (in other words, putative spouses get priority, just like regular spouses).

Marvin actions are basically actions to enforce a contact, which may be actual or implied. The contract may, for instance, relate to the unmarried couple’s agreement to pool their respective resources and to share in the fruits of their labor for each other’s mutual benefit. Absent a written contract, these are very hard to establish. And these contracts have no bearing on probate – the unmarried spouse is not entitled to any of the decedent’s property as a spouse. The survivor may, however, enter the probate as a regular creditor, on the basis of the contract. However, a determination that there was a valid contract would likely need to be made in the civil court. This makes it an expensive and unreliable means of establishing rights to your partner’s property.