Gavin Howe
Common-law marriage is a legally recognised marriage in several states. Couples who meet their state's requirements are eligible for most of the financial benefits of a married couple, including tax benefits and inheritance rights. Common-law marriage is not a nationwide thing, with only a small number of states recognising it. To enter into a common-law marriage, a couple must generally satisfy requirements such as being eligible to be married, cohabitating in a place that recognises common-law marriage, intending to be married, and holding themselves out in public as a married couple. While it offers many benefits, common-law marriage can be tricky to prove and, in the case of a breakup, there is no common-law divorce.
| Characteristics | Values |
|---|---|
| Number of U.S. states recognizing common-law marriage | 7 + DC |
| States recognizing common-law marriage | Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia |
| States with limited recognition of common-law marriage | Utah, South Carolina, New Hampshire |
| States that previously recognized common-law marriage | Alabama, Georgia, Pennsylvania, Ohio, Idaho, Florida |
| Requirements for common-law marriage | Cohabitation, intent to be married, holding out in public as a married couple |
| Tax benefits | Exempt from gift tax, unlimited marital exemptions for estate, deductions for mortgage interest, tax credits |
| Inheritance | Allowed with a valid will, surviving spouse inherits nothing without a will |
| Medical decisions | Allowed through medical power of attorney |
| Property | Can be sold without spouse's consent if not on title |
| Divorce | Traditional divorce required |
| Same-sex marriage | Recognized |
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What You'll Learn
Common-law marriage requirements
Common-law marriage is a legally recognised form of marriage in several states in the US. It is also recognised in the District of Columbia. Common-law marriage is also recognised in the UK, although there is no definitive law surrounding it in England and Wales.
The requirements for a common-law marriage vary depending on the state. However, some general requirements include:
- Cohabitation: Couples must live together for a period of time. There is no statutory requirement for the length of time, but generally, the longer a couple lives together, the stronger their case is for common-law marriage.
- Legal right or "capacity" to marry: Both partners must have the legal right to marry. This usually means they must be at least 18 years old, of sound mind, and not already married to other people.
- Intent: Both partners must intend to be married and behave as a married couple. They must hold themselves out as a married couple to friends, family, and the community.
- Exchange of vows: In some states, partners must exchange vows, uttering "words in the present tense, uttered with the view and to establish the relation of husband and wife."
Some specific state requirements include:
- Alabama and Georgia: Common-law marriages are only recognised if they occurred before 2017 and 1997, respectively.
- Pennsylvania: Common-law marriages are recognised if they occurred before a specified date. Same-sex couples may also have had common-law marriages before the state's timeline.
- Texas: Same-sex couples can enter into a common-law marriage. Couples can register their common-law marriage by filing a declaration with the county clerk, although this is not required.
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Common-law marriage in the UK
In the UK, common-law marriage is a concept that refers to a marriage-like relationship between two people who live together for a certain period of time but without getting married or registering their partnership formally. While this type of arrangement is recognised in some countries, it is not recognised in the UK. This means that couples who live together do not have the same legal rights and protections as married or civil-partnered couples.
Unmarried couples in the UK can, however, formalise aspects of their status by drawing up a legal agreement called a cohabitation contract or living together agreement. This type of agreement outlines the rights and obligations of each partner towards each other. It can also include a 'declaration of trust', which outlines how property is shared between the couple. Citizens Advice recommends that couples seek help from a family law solicitor when drawing up these agreements.
In England and Wales, cohabiting couples do not have the same rights as married couples when it comes to dividing up finances in the event of a divorce or dissolution of their partnership. Additionally, a surviving partner in an unmarried couple may not automatically inherit their partner's assets if they die without leaving a will. Therefore, it is recommended that couples make a will to ensure that their assets are distributed according to their wishes.
Since 2006, laws in Scotland have differed slightly from the rest of the UK. For example, household goods bought during the time a couple lived together will be ruled as jointly owned, and their share split equally. Additionally, there are financial provisions for decisions made during the relationship, such as one partner taking time away from their career for childcare. Protections are also in place for surviving partners regarding estates, allowing a cohabiting partner protection if there is a death without a will.
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Common-law marriage in the US
In the United States, a common-law marriage is a legal marriage that does not require a civil or religious ceremony, nor a marriage license, certificate, or official paperwork. Instead, it is an informal union that recognises two parties who cohabitate and agree to live as spouses. This means that common-law married couples must meet the requirements of their state of residence to be recognised as such.
The requirements for a common-law marriage to be considered legal vary from state to state. Generally, a couple is considered common-law married when they live together for a period of time and present themselves as "married" to their community, including friends and family. However, cohabitation as an unmarried couple is usually not enough to establish a common-law marriage. Some states, for example, require couples to exchange vows in the present tense to be considered common-law married.
Only a handful of states fully recognise common-law marriage, including Colorado, Iowa, Kansas, Oklahoma, Rhode Island, and Texas. Several other states recognise common-law marriages established before a specific date, such as Alabama, Florida, Georgia, Indiana, Ohio, and Pennsylvania. These states have different cut-off dates after which common-law marriages are no longer recognised. Additionally, some states with limited recognition of common-law marriage will still acknowledge such unions if they were contracted in a different state. This is because of the full faith and credit clause in the United States Constitution, which prevents states from blocking other states with contradictory laws.
Common-law marriages can have significant consequences, as they may grant couples the same rights and benefits as those who went through a formal marriage process. These include tax benefits, such as exemptions and deductions, as well as Social Security benefits. Common-law spouses can also inherit each other's property with a valid will and make medical decisions for each other through a medical power of attorney. However, without a will, the children and other family members of the deceased spouse assume inheritance rights, leaving the surviving spouse with nothing.
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Common-law marriage rights
In the United States, common-law marriage is a legally recognised form of marriage in several states. However, it is important to note that the majority of states do not recognise common-law marriages at all. Only 15 states and the District of Columbia recognise this form of marriage, and each has its own unique requirements that couples must fulfil.
In essence, common-law marriage is an informal type of marriage where a couple is considered legally married without undergoing a formal wedding ceremony or obtaining a marriage license. This type of marriage is typically established when a couple lives together for an extended period and holds themselves out to friends, family, and the community as "married". It is important to emphasise that cohabitation alone is generally not sufficient to establish a common-law marriage.
The rights and benefits of common-law marriages vary depending on the state. In states that recognise common-law marriages, couples may be entitled to similar financial benefits as legally married couples, including tax benefits and Social Security. They may also enjoy rights to property division, inheritance, healthcare benefits, hospital visitation, and child custody. Additionally, they can designate each other as medical power of attorney, allowing them to make medical decisions for one another if the need arises.
It is worth noting that proving a common-law marriage can be challenging due to the lack of a formal record or paper trail. This may impact the certainty of rights associated with this form of marriage. Furthermore, the recognition of common-law marriages across different states can be complex. While a state that does not recognise common-law marriages must acknowledge such marriages from other states, the specific rights and benefits may vary depending on the state in question.
In summary, common-law marriage rights can provide couples with similar benefits to those of a formal marriage, including financial, legal, and healthcare advantages. However, the recognition and specific rights associated with common-law marriages vary widely across different states, and it is crucial for couples to understand the legal implications and requirements of this form of marriage in their specific state.
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Common-law marriage history
The roots of common-law marriage can be traced back to medieval England, where formalities were less emphasised, and unions were often recognised based on the couple's intent and public acknowledgment. In medieval Europe, marriage came under the jurisdiction of canon law, which recognised as valid marriages in which the parties stated that they took each other as husband and wife, even in the absence of any witnesses. In ancient Greece and Rome, marriages were private agreements between individuals and estates.
As societies evolved, common-law marriage found its way into legal systems, adapting to cultural and societal changes. Its prevalence varied, influenced by factors such as religion, tradition, and legal developments.
The first state in the United States to officially recognise common-law marriage was Alabama. In 1847, the Alabama Supreme Court acknowledged the validity of common-law marriages in the case of Meagher v. Meagher. This decision set a precedent for the recognition of informal unions, and common-law marriage gained popularity as an acceptable form of marital union in various states throughout the 19th and early 20th centuries.
The legal landscape was diverse, with different jurisdictions embracing or rejecting the concept. As the nation expanded, the recognition of common-law marriage became a state-specific matter, with each region shaping its laws according to cultural and social influences. Today, common-law marriage is legally recognised in several states in the US, and in some provinces in Canada, although it does not exist in Scotland.
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Frequently asked questions
A common-law marriage is a legal marriage that is informal, meaning the couple did not have a formal wedding ceremony, marriage license, or marriage certificate. The couple must be legally capable of being married and must intend to be married. They must also live together for a period of time and hold themselves out to friends, family, and the community as "married".
Very few states recognize common-law marriages. As of 2024, some states that recognize common-law marriages include Colorado, Iowa, Rhode Island, Kansas, Oklahoma, and Texas. Alabama and Georgia previously recognized common-law marriages, but now only recognize marriages before 2017 and 1997, respectively.
Couples who are common-law married may have the same rights as a married couple who went through a formal marriage process. This means that if the common-law spouse dies, the remaining spouse can inherit property or receive benefits. Additionally, in the case of a divorce, the couple can reallocate assets.
