6. Common Law Marriage – We are not married. Do I have rights?

Like the vast majority of other states, California does not recognize a “common law” marriage. It is a myth that if a couple lives together long enough and act as a married couple that they become married. California requires a marriage certificate and ceremony before a marriage is valid (Cal. Fam. Code § 306). California will also recognize a marriage from another state or country if it valid where it was celebrated (Cal. Fam. Code § 308).

An unmarried couple who have children and separate may file a paternity action under California’s Uniform Parentage Act (Cal. Fam. Code § 7600 et. seq). Such an action is initiated by filing a petition that is similar to a divorce, but only addresses parentage, custody, visitation, and child support. The court in a paternity action does not have the power to order any division of property or spousal support.

Regardless of marriage, limited orders regarding parents’ conduct, custody and visitation, temporary possession of a residence, and attorney fees may be made under California’s Domestic Violence Prevention Act (Cal. Fam. Code § 6200 et seq.) when there is “abuse” between persons who are married, were married, dating, used to date, lived together, or were close family members. “Abuse” is defined as any one or more of the following:

  1. To intentionally or recklessly attempt to cause or cause bodily harm;

  2. Sexual assault;

  3. Placing a person in reasonable apprehension of imminent serious bodily injury to that person or another; or

  4. Engaging in any conduct prohibited by Cal. Fam. Code § 6320 (e.g. molesting, attacking, striking, stalking, threatening, battering, telephoning, impersonating, etc.; (Cal. Fam. Code § 6203)).

There are other means to seek legal recourse in civil court for other wrongs that may have been done to persons who fall outside of the typical divorce. For example, there are narrow circumstances that may lead to a civil action in order to enforce contractual rights that may have been created during a non-marital relationship. This concept was created by the California Supreme Court in the landmark decision of Marvin v. Marvin (1976) 18 Cal.3d 660. The actor, Lee Marvin, lived with Michelle Marvin for seven years and promised to marry her. Michelle even went so far as to change her last name. When Lee separated from Michelle she sued him in civil court for half of the property acquired during the seven years. The battle went to the California Supreme Court which ultimately did not side with Michelle, but did hold that she was entitled to a trial on whether or not an express or implied contact was created by the parties’ words and actions. Referred to as a Marvin action, an unmarried person may sue a partner on a contract theory, but be warned that a Marvin action is under very narrow circumstances and are rarely successful. Marvin actions are filed in civil court – not family law court – and for that reason most family law attorneys will not pursue such an action.

For unmarried couples without children and where there is no abuse, there nothing that a San Diego Superior Court judge sitting in the family law department can do for an individual.