There's More to Marriage in California

Klein is an attorney and president of The Times Valley and Ventura County Editions. Brown is professor of law emeritus at USC and chairman of the board for the National Center for Preventive Law

In a recent Legal View column, we described some of the differences between living together as husband and wife and just plain living together.

Several letters we received complained that we did not mention common-law marriage. The letters reflect a widespread, misinformed belief that there is such a thing as common-law marriage.

In fact, in California and most states, common-law marriages cannot be legally consummated. Fourteen states do recognize common-law marriages, but even in those states, it is not sufficient to merely live together; you must intend to be married and hold yourselves out to the world as being married.

And contrary to what many people think, there is no magic number of years--what you often hear is seven--that it takes to create a common-law marriage in the states that allow it.

Although most of us usually don't think of marriage in legal language, there is a California state statute that specifically defines it: "Marriage is a personal relation arising out of a civil contract between a man and a woman, to which consent of the parties capable of making the contract is necessary. Consent alone will not constitute marriage; it must be followed by the issuance of a license and solemnization as authorized by this code (with certain exceptions)."

What does this all mean? In simple English, to have an enforceable, legal marriage, you need an agreement, a license and a solemnization or ceremony. But before you can get a license, you need a certificate from a physician that says you have been given the required tests.

In other words, to get married, you'll need a certificate from a doctor and a license from the county clerk.

There is one interesting exception to this in California. If you have been living together, and holding yourself out as husband and wife, you may apply for an "authorization" rather than a license from the county clerk, and you are not required to obtain a physician's certificate.

It gets even more complicated if you lived in a state that recognized common-law marriages and then move to California. The statute explains it in typical fashion: "All marriages contracted (outside) the state, which would be valid by the laws of the jurisdiction in which the same were contracted, are valid in this state."

This means that if you are living together in a state that recognizes common-law marriages, like Colorado, with the intention of entering into a common-law marriage, and later move to California, your marriage will be recognized as valid in both states.

All of this really begins to matter upon the dissolution of the marriage--the divorce or the death of one of the spouses--when the courts get involved in determining who gets what.

It won't do any good to wait until then to determine whether your marriage is legally valid or not.

"The Living Together Kit" by Toni Ihara and Ralph Warner, published by Nolo Press of Berkeley, is a detailed and useful guide for couples who want more information.

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