I am a COMMON LAW spouse under Canadian law. We have been living in California for 4 years and acquired property.

Q. My husband and I qualify as common law spouses in Canada, where we lived until 4 years ago when we moved to Palm Desert, CA. Does this mean anything?

Gwen, Saskatchewan

A. There is no common law marriage in California, but some American states do recognize it:

  • Alabama
  • Colorado
  • District of Columbia
  • 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
  • Pennsylvania (if created before 1/1/05)
  • Rhode Island
  • South Carolina
  • Texas

In a handful of states (listed above), heterosexual couples can become legally married without a license or ceremony. This type of marriage is called a common law marriage. Contrary to popular belief, a common law marriage is not created when two people simply live together for a certain number of years. In order to have a valid common law marriage, the couple must do all of the following:

  • live together for a significant period of time (not defined in any state)
  • hold themselves out as a married couple - typically this means using the same last name, referring to the other as "my husband" or "my wife," and filing a joint tax return, and that they intend to be married.

When a common law marriage exists, the spouses receive the same legal treatment given to formally married couples, including the requirement that they go through a legal divorce to end the marriage.

Now, what about California?

California doesn't recognize common law marriage within this State, but it does recognize common-law marriages contracted in any other State or jurisdiction, including foreign jurisdictions.

Specifically, California Family Code section 308 provides that "[a] marriage contracted outside this state that would be valid under the laws of the jurisdiction in which the marriage is was contracted is valid in this state." Section 308.5 limits this to a marriage between "a man and a woman".

Therefore, a valid common law marriage in another jurisdiction is valid in California to the extent it is between opposite sexes.

Your common law marriage will be treated as a valid marriage here, with all the attendant rights and obligations, if under Canadian law, as interpreted in California, you qualify.

However, you might have Marvin claim for breach of a joint pooling agreement, but that is a topic for another blog!

Author: Thurman W. Arnold III CFLS