Legal Question in Real Estate Law in California

Re: Does common law marriage apply?

CA is NOT a common law state, barring any agreement to the contrary, she has no rights in any real property of which she is not listed on the deed. There is a possibility of contract right, but the requirements are very restrictive.

He may need to evict her as he would a tenant, but other than that...he should be OK.

If you, or he, would like additional counseling, please feel free to contact our office at 626-578-0708, or through our firm's site at www.No-Probate.com.

Regards,

Scott

Re: Does common law marriage apply?

Your brother's situation is a good example of why it is not a good idea to live together outside of marriage. The answer to your question depends on a lot of fact that you have no provided. For example, do they hae a written agreement? Do they have a verbal agreement? Does the "sweetie" contribute to the mortage on any of the properties? Has he made her any promises of support? Has she given up any career opportunties to be with him? There is just to much missing to give you a definite answer.

I am not sure exactly how long California has not recognized commonl-law marriages, but I that it has been at least 60 years. California will recognize a common-law if it was lawfully created in a state that does recognized common-law marriage.

Re: Does common law marriage apply?

First, there is a distinction between being a "common law state" and being a state that recognizes "common law marriages."

California IS a common-law state, and has been since it joined the Union. Being a common-law state simply means that its legal principles are based upon the common law of England, as opposed to, say, the civil law of France. All U.S. states except Louisiana are common-law states; Louisiana has kept, for the most part, its civil law traditions from its French colonial past.

Now, as to common-law marriage. An aspect of the common law is that it treated couples who lived together as husband and wife as being legally married, even though they had never been through a marriage ceremony and had never taken out a marriage license. In some ways, that's a practical and realistic approach, but one that's not without its problems.

California started out recognizing common-law marriages because, as a common-law state, all aspects of the common law were considered adopted as its state law, except as originally or later modified by statute, the state constitution, or a gradual drift in the common law as established by appellate decisions.

California abolished common-law marriage in 1895, by adding words to its statutory definition of marriage to require solemnization. This is presently codified as the last couple of sentences of Family Code section 300.

Whether living together without benefit of legal marriage is a good idea or not depends upon the situation, including the maturity, wisdom and commitment of the partners. Both married and unmarried couples have legal problems.

The California legislature recognized that unmarried couples deserve some legal recognition in adopting Family Code sections 297-299.6 covering domestic partners. There is also a large and growing body of "common law" (court decisions) dealing with the rights and responsibilities of unmarried domestic partners. Perhaps the most celebrated case is the Marvin v. Marvin "palimony" case, but there are many others, both before and since Marvin.

If "sweetie" didn't chip in on the down payments for any properties, she is probably able to claim, at most, a right of reimbursement for any out-of-proportion contributions she made to the domestic situation, which will be legally regarded somehat as a special species of business partnership. If this goes to court, the most likely outcome will be "whatever's fair" and justice will be done.

Re: Does common law marriage apply?

wow you got a history lesson in common law marriages, good advice and bad advice on real property law -- first of all why is your brother asking these questions or even better ones such as what are my rights and what are hers ---- 30 years of real estate law in the bay area tells me there may be more to this situation then meets the eyes -- if you wish you may call me at 510-465-6000 but i will need to talk to "your brother" and find out all of the facts to better understand the real situation