Gavin Howe
Common-law marriage is a legally recognized marriage that does not require a marriage license or a ceremony officiated by a licensed official. While it is only recognized in a few states, each state has its own rules and requirements for qualification. For example, in Colorado, couples can file joint taxes and enjoy other benefits typically given to married couples. In New Hampshire, common-law marriages are rarely recognized and are only valid when determining inheritance after one party passes away. It is important to note that common-law marriage is not recognized in most states, and each state has different guidelines for legal designation.
| Characteristics | Values |
|---|---|
| Number of States Recognizing Common Law Marriage | Very few. Only 11 states recognize it in some form: Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina (abolished in 2019 but recognized for marriages before that date), Texas, Utah, and the District of Columbia. |
| Requirements for Common Law Marriage | Vary by state, but generally include: living together at the same address, presenting themselves as spouses in public, and the intention to be married. |
| Benefits of Common Law Marriage | Eligible for financial benefits similar to married couples, including Social Security and tax benefits. |
| Ending a Common Law Marriage | Can only be legally ended by divorce in states where it is recognized. |
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What You'll Learn
Common law marriage requirements
In the United States, common-law marriage has existed since colonial times, when America was a colony of England. While most states have abolished it by statute, it is still recognised in Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia.
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that results from the couple's agreement to consider themselves married, followed by cohabitation, rather than a statutorily defined process. It is a valid and legal way for a couple to marry, and a common-law marriage is just as binding as a formal marriage.
There are some common requirements for a common-law marriage. Firstly, both partners must have the legal right or "capacity" to marry. This usually means they must be at least 18 years old, of sound mind, and not already married to other people. Secondly, both partners must intend to be married and behave as a married couple, holding themselves out to friends, family, and the public as a married couple. Thirdly, the couple must live together, although there is no statutory requirement for the length of time a couple needs to live together. The court considers this on a case-by-case basis.
In Texas, couples can register their common-law marriage by filing a declaration with the county clerk. For couples that choose not to declare their common-law marriage, documents such as lease agreements, tax returns, and insurance policies may be requested to prove the marriage.
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States that recognize common law marriage
Common-law marriage, also known as sui juris marriage, informal marriage, marriage by habit and repute, or marriage in fact, is a form of irregular marriage that survives only in a few US states and the District of Columbia.
The states that currently recognize common-law marriages are Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia. Ohio and Pennsylvania also recognize common-law marriages, but only if they were entered into before October 1991 and January 2005, respectively. Similarly, Idaho, Georgia, and Alabama recognize common-law marriages that were entered into before 1996, 1997, and an unspecified date, respectively.
The requirements for a common-law marriage to be valid vary from state to state. In Texas, for example, both parties must be at least 18 years old, and they must either file a legal "Declaration of Informal Marriage" or meet a three-prong test, which includes evidence of an agreement to be married, cohabitation within the state, and representation to others within the state that they are married. In Utah, common-law marriages are only recognized if they have been validated by a court or administrative order.
It is important to note that even in states that do not recognize common-law marriages, a validly contracted common-law marriage from another state will still be recognized. This is because all states recognize all validly contracted foreign marriages, including common-law marriages, as long as they were lawfully contracted in jurisdictions that permit them.
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Benefits of common law marriage
Common-law marriage is a legal framework that recognises couples who live together for an extended period as legally married, even without a formal wedding ceremony or marriage license. While it is not recognised in all states, common-law marriage does offer several benefits:
Marital Rights and Responsibilities
Common-law marriages are granted the same marital rights and responsibilities as formally married couples, including inheritance rights, tax benefits, and access to certain federal benefits. This includes spousal retirement benefits, survivor benefits, and disability benefits.
Financial Benefits
Common-law spouses may benefit financially through reduced health insurance premiums, employment perks such as family leave and bereavement leave, and access to retirement accounts or pension plans. They are also exempt from the gift tax for gifts exchanged between them and can claim deductions for mortgage interest if they co-own a house or have children.
Legal Recognition
For couples who choose not to legalise their union through a traditional marriage ceremony, common-law marriage provides a way to have their relationship legally recognised. This recognition can offer peace of mind and security for both partners, especially in matters such as medical decision-making and inheritance.
Flexibility
Common-law marriage offers a flexible alternative to traditional marriage, allowing couples to avoid the expenses and legal complexities associated with formal marriage. It can be particularly advantageous for those who cannot or choose not to participate in a traditional marriage ceremony due to personal, religious, or financial reasons.
However, it is important to note that common-law marriages also come with certain challenges and disadvantages. The lack of a binding contract can create financial and legal complexities, especially if the couple does not carefully document and plan their affairs. Additionally, common-law marriages may not be recognised in all states or countries, and the specific requirements for recognition may vary.
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Common misconceptions about common law marriage
Common-law marriage is a legally recognised marriage between two people who haven't purchased a marriage licence or engaged in a ceremony overseen by an officiant. Common-law marriage is permitted in several US states, but the law around it is not consistent from state to state. Here are some common misconceptions about common-law marriage:
"If I live with my partner for seven years, we will be common-law married"
This is a myth. While the requirements for common-law marriage vary slightly among states, the two essential elements are cohabitation and "holding out". "Holding out" means the couple's actions tell the world they are husband and wife. There is no specific time that the couple must live together, but they do need to live together continuously, and not just occasionally or on weekends.
"Common-law marriage is recognised in all states"
Common-law marriage is not recognised in most states. States that do recognise common-law marriage include Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, Utah and the District of Columbia. However, there are nuances for many of the states. For example, Oklahoma has conflicting laws, and New Hampshire only recognises common-law marriage for inheritance purposes.
"Common-law marriage grants the same rights as a 'regular' marriage"
While a person who has a marriage by common law has the same legal rights as a person who was married in a religious ceremony or in front of a judge, it can be hard to prove whether a common-law marriage exists. For example, in Washington State, which does not allow common-law marriage, unmarried partners do not inherit in the same way a surviving spouse does.
"My spouse and I consider ourselves to be common-law married, so we are married"
Not necessarily. It is the legal system, rather than the couple, that decides if there is a common-law marriage. Until the legal system says there is a common-law marriage, it is not absolutely clear whether one exists.
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Ending a common law marriage
Ending a common-law marriage can be a complex process, and it's important to understand the legal implications and requirements. Here are some key considerations for navigating the end of a common-law marriage:
Understanding Common-Law Marriage
Firstly, it's crucial to establish whether your relationship qualifies as a common-law marriage. Common-law marriage is recognised in a small number of states, and the specific requirements vary. Generally, it involves living together, intending to be married, and portraying yourselves as a married couple to the world. Some states may have additional requirements, such as filing taxes jointly or having joint bank accounts.
Determining Validity
Before ending a common-law marriage, you must determine its validity. This involves proving to the court that both parties intended to be married. Evidence of cohabitation, shared finances, and public acknowledgment as a married couple may be required to demonstrate this intent. It's important to note that merely cohabiting for an extended period is typically not enough to establish a common-law marriage.
Legal Representation
Given the complexities of ending a common-law marriage, seeking legal guidance is highly recommended. A divorce attorney can provide invaluable assistance in navigating the unique legal nuances and protecting your rights throughout the dissolution process. They can help establish the existence and validity of the common-law marriage and guide you through the specific requirements of your state.
Divorce Process
If your common-law marriage is valid, you will need to follow the steps for obtaining a traditional divorce. This includes filing a formal petition with the court, understanding state residency requirements, and addressing issues such as property division, spousal support, and child custody. All states allow for a no-fault divorce, which is generally faster and less expensive. It's important to note that you must legally end a common-law marriage before entering into another marriage, whether common-law or formal.
Division of Assets and Liabilities
Similar to traditional marriages, common-law couples may accumulate assets and liabilities jointly and separately. During the divorce process, these must be distributed equitably. This may involve evaluating jointly held properties, shared debts, and other financial elements. Both parties can agree upon a division, or the court will decide on their behalf if an agreement cannot be reached.
In summary, ending a common-law marriage involves understanding the legal validity of the union, seeking appropriate legal representation, navigating the divorce process, and equitably dividing assets and liabilities. It's important to be well-informed and prepared for the emotional and financial implications of this complex transition.
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Frequently asked questions
A common-law marriage is a legally recognised marriage between two people who haven't purchased a marriage licence or had a ceremony officiated by a priest or other legal authority.
Common-law marriage is only recognised in a few US states, including Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina (recognised for marriages before 24 July 2019), Texas, Utah and the District of Columbia.
To enter into a common-law marriage, a couple must be eligible to be married, live together in a place that recognises common-law marriage, intend to be married and present themselves as a married couple in public.
Couples in a common-law marriage are eligible for most of the financial benefits of a married couple, including Social Security and tax benefits. They can also inherit property from each other.
