Sunday, November 18th 2007
Common Law Marriage
So-called “common law” marriage is informal marriage where the parties agree that they are married, and they hold themselves out to others as husband and wife. There is no common law marriage in California. In other words, couples cannot become married in California merely by agreeing that they are married.
However, if a marriage would be recognized as a common law marriage in a particular state, it should be recognized in a non-common law marriage state. For example, Texas is a common-law marriage state. Suppose a husband and wife in Texas agreed that they were married and held themselves out as married in Texas. If the couple then moved to California, the couple would be validly married because their common law marriage was valid in Texas. Therefore, the couple would have to follow the procedures for divorce in California.
It is also possible, however, that a California court in the hypothetical common law marriage in Texas would apply contract principles in the event that the couple wanted to break up after moving to California. That means that the court would evaluate the promises, either verbal or written, that the couple made to each another. This would be more difficult than applying the California community property laws (or another state’s community property laws) because of the issues involved related to proof of the alleged promises.
Only a few states recognize common law marriage. These states are:
Alabama
Colorado
Georgia (if created before 1/1/97)
Idaho (if created before 1/1/96)
Iowa
Kansas
Montana
New Hampshire (for inheritance purposes only)
Ohio (if created before 10/10/91)
Oklahoma (possibly only if created before 11/1/98. Oklahoma’s laws and court decisions may be in conflict about whether common law marriages formed in that state after 11/1/98 will be recognized.)
Pennsylvania (if created before 1/1/05)
Rhode Island
South Carolina
Texas
Utah
Washington, D.C.
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