Law on Marriage and Living Together - California

People often think of living together in the context of marriage, but in modern society couples have explored a variety of living options. This is perhaps even more true in California, which has long been the destination for free spirits and, more practically, where its high cost of living makes living together more financially attractive.

However, there are important legal implications when couples decide to move in together, whether they are married or cohabiting. For example, questions can arise about who owns what, whether parental rights apply (if children are involved), or whether the couple is entitled to any benefits similar to married spouses or domestic partners. These questions come into play especially if the couple later separates, even if it's on good terms.

Validity of Marriage Laws

The first question that can arise when it comes to the law on marriage and living together in California is whether a relationship constitutes a valid marriage. In California, laws governing marriage validity can be found in Family Code Sections 300-310. While the consent of both parties (age 18 or older) is required, this alone is not enough as California also requires the issuance of a license and solemnization, or a marriage ceremony. Minors under age 18 can marry, but only with a court order granting permission.

Some states have common law marriage, wherein couples that are living together can be considered legally married under certain conditions. This can happen even where the couple may not agree to be considered married. However, California doesn't recognize common law marriages, except in cases where a relationship constituted a common law marriage under the laws of another state before the couple moved to California. So, if you and your partner have only lived in California while cohabiting, the prospect of a common law marriage is not on the horizon.

Premarital Agreements

Couples living together in California have a few options when it comes to entering formal agreements about their relationship. For one, they can enter into a cohabitation or nonmarital agreement. Essentially this is a contractual agreement that's not tied to marriage and can help a cohabiting couple clarify their rights and responsibilities.

However, if a couple that's living together is contemplating marriage down the road, they may want to look into setting up a premarital or prenuptial agreement. These are similar to cohabitation agreements in that they clarify rights and responsibilities, but they only become effective on marriage.

The California law relating to premarital agreements can be found in Family Code Sections 1610-1617. Essentially, California requires that premarital agreements be in writing and signed by both parties. It also has very specific procedural requirements. For example, California courts will not consider a premarital agreement as voluntarily executed unless the party against whom it is sought:

  • Was represented by an attorney or, after being advised to seek an attorney, expressly waived counsel in writing and was later fully informed of the basic terms and effect of the agreement; and
  • Had at least 7 calendar days to review the agreement before signing.

Ask a California Attorney About Your Marriage and Living Together Questions

As you can see, California has some unique laws when it comes to marriage and living together which can have a significant impact on your relationship. If you're considering a living together arrangement you can save a lot of future headache (and possibly heartache) by speaking with an experienced family law attorney and learning more about California law.

Next Steps

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