Cohabitation Does Not Make a Marriage


After the trials of twentieth-century feminist movements, it’s not a leap to suggest that marriage is regarded skeptically today. You need look no further than the U.S. Census Bureau Figure MS-2, which depicts the sharp rise in marital age. Now, when marriage is entered upon, it’s not the kneejerk fix-all or rite of passage it used to be. Today, statistics support its definition as a careful partnership reserved for later in life, if at all.

Median Age at First Marriage

So what are couples doing instead?

According to the National Center for Family and Marriage Research, more Americans are living together unmarried. In 2015, approximately 14% of adults lived with an unwedded partner–an increase of approximately 3% from 2005 and 8% from 1995. This suggests that the stigma against unmarried cohabitation is fading.

The taboo’s neutralization is to be celebrated, because it allows people to experience all facets of a relationship before making a lifetime commitment. It encourages couples to marry for more durable reasons than mere social acceptability. With that said, these partnerships do not ensure the protection of assets under the law. If you accrue wealth during your relationship and things go awry, you will not be regarded with the same community property assumption as you would if you were married. In other words, unlike a married couple, who are entitled to an equal share of everything gained from the moment of union, an unmarried couple’s assets are not legally protected. Contrary to what many Americans might think, there is no such thing as automatic marriage rights in the state of California. Common law marriage by virtue of cohabitation is a myth.

Common law marriage is only recognized by a small handful of states. Legally, it refers to a marriage between two individuals who have not bought a marriage license or had their marriage solemnized. A state will instead require a few different conditions be met for the couple to be considered married. These requirements vary; but in most states, they involve a precise period of cohabitation, the intent to marry, and the portrayal as a married couple to others.

California banned common law marriage in 1895. According to California Family Code § 306, a marriage is only legal if it is “licensed, solemnized, and authenticated.” This means that a couple must buy a marriage license from the County Clerk, have it solemnized by a Marriage Officiant (e.g. a member of the clergy or authorized individual), and then have it authenticated as an official marriage certificate by the County Recorder. Without completing each step, a couple will not be considered married in the eyes of the law.

There is one major loophole, however.

In 1986, California courts upheld an Alabama common law marriage (In re Marriage of Smyklo). In this instance, a couple married in 1941, divorced in 1953, and remarried under common law in 1957. The ex-spouses lived like a married couple by sharing a bedroom, raising their two children, filing joint tax returns, and entertaining friends in their house together. Under Alabama law, they remarried, even though there was no license or ceremony. After three years of cohabitating, the couple moved to California. They stayed in California from 1960 through 1976 without officially marrying. This lasted until the husband moved to Hawaii, where he eventually married someone else. His wife filed an action to determine whether their marriage was legitimate. Under the “Full Faith and Credit Clause” in Article IV of the U.S. Constitution, California courts applied Alabama law, even though it ran contrary to its own code. The clause aims to prevent people from avoiding their legal problems in one state by simply moving to another one. Therefore, California acknowledged the marriage, even though it could not have lawfully happened in-state.

Ultimately, proving a common law marriage can be more difficult that it seems. If a couple married under common law wants to separate, they have to undergo the same divorce process as any other married couple, with the added challenge of applying a clear dissolution process to an ambiguous marriage. Showing marital intention often comes down to one partner’s word against the other. Personal intimacies of a couple’s life will be facts a judge examines. Without legal protection, chances are you’ll be left in the lurch. No fair settlement is guaranteed.

For those readers averse to matrimony: unmarried partnerships can be stipulated by an agreement. Casually known as “palimony,” non-marital partners have the right to enforce support or property contracts during separation proceedings. Just as our post on pre-marital agreements argues, it’s best to be prepared. Even if you don’t have assets or children now, you may down the road. Protect your future by planning ahead.

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