Cecily Zamora
Kansas is one of the few states that continues to allow common-law marriages. A common-law marriage is a legally recognized union between two individuals without the need for a formal ceremony or marriage license. While it may seem like a couple can fall into a common-law marriage, there are specific requirements that must be met. These include both parties being of legal age, having the mental capacity to marry, not being closely related, and not currently married to someone else. Additionally, the couple must have a mutual agreement to be married and publicly present themselves as spouses. This public presentation can include using the same last name, referring to each other as spouses, and filing joint tax returns. It's important to note that common-law marriages in Kansas carry the same legal rights and responsibilities as formal marriages, including the requirement to go through the divorce process if the marriage ends.
| Characteristics | Values |
|---|---|
| Recognition of common-law marriage | Recognized in Kansas |
| Requirements | Both parties must be at least 18 years old, unmarried, not closely related, have the mental capacity to enter a marriage, and have a mutual agreement to be married |
| Holding out | Couples must "hold themselves out to the public as married" by referring to each other as spouses, having a family together, sharing a last name, and financially supporting each other |
| Cohabitation | Not required but may help demonstrate a shared life |
| Rights and responsibilities | Common-law spouses have the same legal rights and responsibilities as formally married couples, including the right to inherit property, access health care benefits, and make medical decisions for each other |
| Dissolution | Common-law marriages can only be dissolved through divorce, which follows the same legal process as a formal marriage |
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What You'll Learn
Requirements for common-law marriage in Kansas
Kansas is one of the few states that continues to allow common-law marriages. The recognition of common-law marriage is based on legal precedents established through court decisions, not explicitly defined in laws.
To establish a common-law marriage in Kansas, certain requirements must be met:
- Both parties must be at least 18 years old and have the mental capacity to enter a marriage.
- There should be no legal barriers to marriage, for example, a previous marriage that has not been legally dissolved, or a close relation to the other party.
- Both parties must have a "current intent" or present agreement to be married. This means that both parties have a mutual agreement to be married in the present and future, not an intent to become married at some point in the future.
- The couple must "hold themselves out to the public as husband and wife" or "hold themselves out as spouses". This means that the couple does and says things that put others on notice that they believe they are spouses. This can include referring to each other as "husband", "wife", or "spouse" when talking to other people, sharing a last name, having a family together, and emotionally and financially supporting each other and their families.
- Living together is not a requirement in Kansas, but it may help demonstrate a shared life.
It is important to note that the burden of proof to establish a common-law marriage is always upon the person who asserts it. Seeking legal advice if you have any questions or concerns about common-law marriage in Kansas is crucial.
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Rights and responsibilities of common-law spouses
Kansas is among a minority of states that continue to allow common-law marriages. Common-law marriages in Kansas are treated with the same legal respect as ceremonial marriages, and common-law spouses have the same rights and responsibilities as those in formal marriages.
To be considered a common-law spouse in Kansas, couples must meet specific criteria and requirements. Both parties must have the capacity to marry, meaning there is no legal impediment or bar to the marriage. This means that the spouses must not be closely related, married to someone else, or too young to marry, and they must have the mental and physical ability to marry. Secondly, the parties must have a "present agreement" or intent to be married. This can be inferred from their behaviour or the way they mutually recognise each other as spouses. Lastly, the couple must "hold each other out" to their family, friends, and the community as a married couple. This means doing and saying things that put others on notice that they believe they are spouses, such as referring to each other as "husband", "wife", or "spouse".
Once a common-law marriage is established, the couple has the same rights and responsibilities as formally married couples. These include the right to inherit property from their spouse, access health care benefits, and make medical decisions for each other. They also have financial and debt responsibilities, and if the couple has children, both parents have legal responsibilities for their care and support.
It is important to note that the recognition of common-law marriage can change over time, and staying updated on recent developments is essential. While common-law marriage is currently recognised in Kansas, it is based on legal precedents established through court decisions rather than explicitly defined in laws. Therefore, it is crucial for couples considering or currently in a common-law marriage to understand the specific requirements and legal implications of their union.
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How to prove a common-law marriage
Kansas is one of the minority of states that continues to allow common-law marriages. To prove a common-law marriage in Kansas, certain key elements must be fulfilled.
Firstly, both parties must be at least 18 years old and have the mental and physical capacity to enter a marriage. This means that neither party can be married to someone else, and the two parties cannot be closely related.
Secondly, both parties must have a mutual agreement to be married in the present and future. This agreement can be verbal, but it must be clear and intentional. The couple must also "hold themselves out as spouses" to the public. This can include referring to each other as spouses, sharing a last name, having a family together, and financially supporting each other.
Living together is not a requirement in Kansas, but it can help demonstrate a shared life as a married couple. Filing joint tax returns, owning property together, and having a joint bank account can also help prove a common-law marriage.
If you need to prove your common-law marriage for practical purposes, the Attorney General for Kansas has prepared an Affidavit of Common Law Marriage, which is a sworn statement that you and your spouse can fill out.
It is important to note that common-law marriages are subject to the same legal obligations and privileges as formal marriages. This includes property rights, inheritance rights, and spousal support in the event of a divorce or separation.
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Common misconceptions about common-law marriage
There are several misconceptions about common-law marriage, and it is important to clarify what is true and what is not. Here are some common misconceptions:
- Misconception: Living together for a certain period of time automatically results in a common-law marriage. Many people believe that if a couple lives together for a specific number of years, they automatically become common-law married. However, this is not the case in most states. While cohabitation is an essential element of common-law marriage in some states, it alone does not create a common-law marriage. The couple must also "'hold themselves out' as spouses to the public" and have a present agreement to be married.
- Misconception: Common-law marriage is recognised in all states. Common-law marriage is not recognised in most states today. The recognition of common-law marriage varies from state to state, and it has been abolished in many states due to its association with geographic isolation in medieval England, which is no longer a relevant factor.
- Misconception: Common-law marriage is a simple alternative to traditional marriage. While common-law marriage does not require a marriage license or a formal ceremony, it is not a simple process. Couples must meet specific legal requirements, including capacity to marry, present agreement to marry, and holding themselves out as spouses. Proving a common-law marriage can be challenging, and the burden of proof always lies with the person asserting it.
- Misconception: Common-law marriage grants the same rights as a traditional marriage. In some states, common-law marriages are recognised and grant couples the same legal rights and responsibilities as traditionally married couples. However, in states that do not recognise common-law marriage, the rights of unmarried partners are limited. For example, inheritance rights may differ, and the division of property and debts may not be handled in the same way as in a traditional marriage.
- Misconception: Common-law marriage can be easily proven. Determining the existence of a common-law marriage can be complicated, and there is no simple test to qualify a couple as married under common law. While behaviours such as referring to each other as spouses, having a family, sharing a last name, and filing joint tax returns can contribute to a case for common-law marriage, it is ultimately the legal system that decides whether a common-law marriage exists.
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How to dissolve a common-law marriage
In Kansas, common-law marriages are legally recognised, and couples in such marriages have the same legal rights and responsibilities as those in formal marriages. This includes inheritance rights, spousal support (alimony), and financial and parental responsibilities.
To establish a common-law marriage in Kansas, both parties must be at least 18 years old, have the mental capacity to marry, and be legally free to marry. There should be no legal barriers to marriage, such as a previous marriage that has not been legally dissolved. The couple must mutually consent to be married, verbally or in writing, and “hold themselves out as spouses” to the public. This can include referring to each other as spouses, having a family together, sharing a last name, and providing emotional and financial support to each other and their families.
To dissolve a common-law marriage in Kansas, the same legal process must be followed as for a formal marriage. This involves:
- Filing a petition: One spouse must file a petition for divorce in the appropriate court.
- Serving the petition: The petition must be served to the other spouse.
- Division of property and assets: The court will divide marital property and debts, considering factors such as the length of the marriage, contributions to the marriage, and the economic circumstances of each spouse. The goal is to achieve a fair and equitable division.
- Child custody and support: If there are children involved, the court will determine custody arrangements and child support.
It is important to note that only divorce or death can end a common-law marriage. Kansas family law professionals can assist with recognising common-law marriages, understanding legal protections, and navigating the complexities of dissolution. It is recommended to seek legal advice from a licensed Kansas attorney to ensure specific rights and obligations are protected during the separation or divorce process.
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Frequently asked questions
A common-law marriage is a marriage that is recognised informally and does not require a marriage license or a formal ceremony.
Yes, Kansas is one of the few states that continue to allow common-law marriage.
Both parties must be at least 18 years old, not closely related, unmarried, and have the mental and physical capacity to marry. The couple must also have a mutual agreement to be married and present themselves publicly as a married couple.
Proving a common-law marriage can be difficult and the burden of proof falls on the person asserting it. The Attorney General for Kansas has prepared an Affidavit of Common Law Marriage, which is a sworn statement that can be used to establish common-law marriage.
Common-law marriages in Kansas are generally treated the same as formal marriages. This includes rights to marital property and debts, inheritance, and making medical decisions for one another. It also includes obligations such as financial support and debt responsibility.
