Cameron Miranda
The requirements for common-law marriages vary from state to state. In the US, same-sex couples have the constitutional right to enter common-law marriages on the same terms as heterosexual couples, following the 2015 Obergefell v. Hodges ruling. Same-sex couples can enter into a common-law marriage in Texas, for example, as long as they meet the three requirements outlined in Section 2.401. However, some countries, such as Italy, Japan, and South Korea, do not recognize same-sex marriage, and some even criminalize homosexuality.
| Characteristics | Values |
|---|---|
| Legal recognition of same-sex common-law marriage | Legally recognized in a majority of developed countries, but not in Italy, Japan, South Korea, and the Czech Republic |
| Social Security benefits | Same requirements for evidence of common-law marriage for same-sex and opposite-sex couples |
| Requirements for evidence | Evidence of agreement to be married and other proof of acting as a married couple publicly, such as lease agreements, tax returns, and insurance policies |
| Retroactivity | Same-sex couples may be eligible for a retroactive declaration of a common-law marriage date, even if their jurisdiction no longer recognizes common-law marriages |
| U.S. Supreme Court decision | In Obergefell v. Hodges (2015), the Supreme Court ruled that same-sex couples have a constitutional right to "civil marriage on the same terms and conditions as opposite-sex couples" |
| State recognition in the U.S. | As of 2022, nine states and Washington, D.C., legally permit new common-law marriages, while other states recognize marriages established before the practice was abolished |
| Benefits | Rights and benefits include equitable distribution of property, amending death certificates, intestate succession, survivor benefits, and retirement benefits |
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What You'll Learn
Common law marriage requirements in Texas
Texas is one of the few states that recognizes common-law marriages. Since the United States Supreme Court's 2015 decision in Obergefell v. Hodges, same-sex couples can enter into a common-law marriage in Texas.
To establish a common-law marriage in Texas, a couple must meet the following criteria:
- Mutual agreement to be married: Both parties must agree to be married. This is the first of three conditions outlined in Texas Family Code Sec. 2.401 that must be met to establish a common-law marriage.
- Cohabitation: The couple must live together in Texas as spouses. This means setting up a household together and doing things associated with being a married couple, such as making major joint purchases, filing joint tax returns, and listing each other as beneficiaries on insurance policies or financial accounts.
- Representation: The couple must publicly represent themselves as married. This can include using the same last name, introducing each other as spouses, and consistently calling each other husband and wife in public.
- Other requirements: Both parties must be at least 18 years old, neither party can be married to anyone else, and the parties cannot be related to one another.
It is important to note that simply living together for a certain period does not establish a common-law marriage in Texas. If a couple meets the requirements for a common-law marriage, they can register their marriage by signing a "declaration of informal marriage" with the county clerk's office. This is not required, but it can make it easier to prove the marriage if necessary. In the absence of a formal declaration, other documents such as lease agreements, tax returns, and insurance policies may be requested to prove the marriage.
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Retroactive common-law marriage benefits
Retroactive recognition of common-law marriages is especially important for same-sex couples who were prevented from entering into a ceremonial marriage due to laws that have since been deemed unconstitutional. In the US, the Obergefell v. Hodges case in 2015 ruled that same-sex couples have a constitutional right to "civil marriage on the same terms and conditions as opposite-sex couples". This ruling applies retroactively to common-law marriages that were established before the Supreme Court's decision.
The recognition of common-law marriages can have a significant impact on divorce proceedings, including property division, alimony, and child custody. Additionally, it can affect income tax filing status, inheritance tax, and federal benefits such as Social Security. In the US, the Social Security Administration will recognise a same-sex common-law marriage if it was established in a state that recognised common-law marriage in general.
Some US states, such as Pennsylvania, have retroactively recognised same-sex common-law marriages that were established before a certain date, even if the state did not recognise same-sex marriages at the time. This is also the case in several other states, including Georgia, Idaho, New Hampshire, Oklahoma, Ohio, and Colorado. In these states, couples may be eligible for a declaration of an earlier, common-law marriage date if they meet the requirements, which can grant them access to benefits that require a certain length of marriage.
The requirements for proving a common-law marriage can vary, but generally, couples must demonstrate that they lived together for a significant amount of time and portrayed themselves as a married couple to their community. This can include sharing the same last name, referring to each other as spouses, sharing bank accounts, and other factors. However, it is important to note that not all states recognise common-law marriages, and the requirements can be complex and vary by state.
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Evidence needed to prove common-law marriage
Same-sex couples have the same legal right as opposite-sex couples to establish a common-law marriage. However, gay and lesbian partners may face challenges in gathering the evidence required to prove their relationship qualifies as a common-law marriage. This is partly because, before the legalisation of same-sex marriage, these couples did not have the option to file joint tax returns or list their partner as their spouse on official documents. Additionally, due to discrimination in social and professional settings, same-sex couples may not have publicly presented themselves as married. Nevertheless, same-sex partners must demonstrate through their conduct that they intended to live together as a married couple.
To prove a common-law marriage, couples generally need to satisfy the other general marriage requirements in their state. For example, in most states, both spouses must be at least 18 years old and have the mental capacity to understand the commitment and consequences of marriage. States also have laws prohibiting marriage between close relatives (incest) and marriage to more than one person (bigamy). It is important to understand the specific requirements of your state, as the laws may vary and change over time.
- Documents such as lease agreements, tax returns, and insurance policies
- An agreement or other official documents signed by both partners declaring their intention to marry
- Proof that the couple established their marriage relationship while living in a state that recognised common-law marriages
- Evidence that both partners intended for their relationship to be a marriage, lived together, and presented themselves as a married couple in public
In Texas, where common-law marriage is recognised, couples can register their union by filing a declaration with the county clerk. If no declaration was filed, the documents mentioned above may be requested to prove the marriage. Texas law places a two-year statute of limitations on court proceedings related to proving a common-law marriage, and it is recommended to consult an attorney for guidance.
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Common misconceptions about common-law marriage
Common-law marriage, also known as marriage without formalities or informal marriage, is a valid way for couples to marry without a formal ceremony. However, there are several misconceptions surrounding common-law marriage. Here are some of them:
Misconception: Living together for a certain number of years creates a common-law marriage
This is a common myth, but it is not true. While cohabitation is one of the essential elements of a common-law marriage, simply living together for a certain period, such as seven or ten years, does not automatically result in a common-law marriage. Other requirements must also be met, and these can vary from state to state.
Misconception: All states recognize common-law marriage
Common-law marriage is not recognized in most states. Even in states where it is recognized, there is no simple test to determine if a couple qualifies as married under common law. Washington State, for example, does not allow common-law marriages, although it does recognize that some long-term committed relationships may be granted a limited number of the same rights as married couples.
Misconception: Common-law marriage only applies to heterosexual couples
This is not true. Since the United States Supreme Court's 2015 decision in Obergefell v. Hodges, same-sex couples can enter into a common-law marriage in states that recognize this type of union.
Misconception: Common-law marriage gives couples the same rights as a legally married couple
While a common-law marriage grants couples the same legal rights as a "regular" marriage, it can be challenging to prove that a common-law marriage exists. This may impact the ability to access the rights and benefits of marriage, such as protecting a family residence and dividing assets.
Misconception: Cohabitation alone constitutes a common-law marriage
While cohabitation is necessary for a common-law marriage, it is not sufficient on its own. The couple must also "hold out", meaning they present themselves as a married couple to the world. This could include actions such as filing a joint tax return or one partner assuming the other's last name.
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Common-law marriage in other countries
Common-law marriage, also known as non-ceremonial marriage, informal marriage, marriage by habit and repute, or marriage in fact, is a form of irregular marriage that does not involve a ceremony overseen by an officiant or a marriage license. It is recognised to varying degrees in different countries and jurisdictions.
In the United States, common-law marriage is recognised in a minority of states, including Texas, Colorado, and Utah. The specific requirements for a valid common-law marriage differ between jurisdictions, but generally include cohabitation and holding themselves out to the world as a married couple. For example, in Texas, there is no requirement for a couple to be together for a specific period before they can declare themselves to be in a common-law marriage, as long as they agree to the three elements listed in Section 2.401. Same-sex couples can enter into a common-law marriage in Texas, following the Supreme Court's decision in Obergefell v. Hodges in 2015.
In Canada, while some provinces may grant couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married. They may be defined as "unmarried spouses" and treated the same as married spouses for certain purposes such as taxes and financial claims.
In England and Wales, the term "common-law marriage" has been used to refer to unmarried, cohabiting heterosexual couples, but it does not confer legal recognition as a marriage. Similarly, in Scotland, common-law marriage does not exist, although there was a type of irregular marriage called 'marriage by cohabitation with habit and repute' which could apply to couples in special circumstances until 2006.
In Kuwait, common-law marriage has limited recognition in the case of expatriate familial disputes, such as maintenance payments and child support dues. However, it does not extend to couples where one or both parties are Kuwaiti or to homosexual couples, as intercourse outside of marriage is illegal in Kuwait.
In some countries, same-sex marriage is constitutionally prohibited, including in some countries with Islamic law. However, there is a growing trend of increasing support for same-sex marriage across many countries, and it is now legally recognised in a large majority of the world's developed countries.
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Frequently asked questions
A common-law marriage, also known as a non-ceremonial marriage, is a marriage that results from the parties' agreement to consider themselves married, followed by cohabitation, rather than through a statutorily defined process.
The requirements for a common-law marriage include: being of marriageable age, not already being married, cohabiting for a "significant" period, and living together voluntarily. The precise requirements may vary from state to state.
No, the requirements for a common-law marriage are the same for both same-sex and opposite-sex couples. Since the 2015 Obergefell v. Hodges decision, same-sex couples have the constitutional right to marry on the same terms as opposite-sex couples.
A common-law marriage is considered a valid marriage and provides the same rights, benefits, and responsibilities as a legal marriage. These include Social Security benefits, inheritance rights, and hospital visitation rights.
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