Gay Couples And Common Law Marriage: What's The Verdict?

The recognition of common-law marriages varies across different states and countries. In the US, the Supreme Court ruled that same-sex couples have the right to marry, but the laws surrounding common-law marriages differ across states. Some states, like Texas, recognize same-sex common-law marriages, while others do not. In Canada, same-sex marriage is legal across the country, but each province regulates its own laws for common-law couples and property rights. This means that gay couples can have a common-law marriage, but the recognition of this marriage depends on the specific location and its laws.

Common law marriage requirements

Common-law marriage, also known as 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. Common-law marriage is not recognized in all jurisdictions, but those that do will typically respect the validity of such a marriage lawfully entered in another state or country.

In the United States, common-law marriage has existed since colonial times, and while many states no longer recognize common-law marriages, a few still do. As of 2022, only nine states (plus Washington, D.C.) legally permit couples to establish new common-law marriages. However, more than a dozen other states will recognize common-law marriages if they were established before the practice was abolished in that state.

The specific requirements for common-law marriage may vary from state to state, but here are some general guidelines:

• Legal right or "capacity" to marry: Both partners must have the legal capacity to marry. This typically means they must be of legal age (usually at least 18 years old) and of sound mind, and they must not already be married to other people.
• Intent to be married: Both partners must intend to be married and behave as a married couple. They must hold themselves out to friends, family, and the public as being married, such as by using the same last name, referring to each other in public as "husband" or "wife," or sharing joint bank accounts or credit cards.
• Cohabitation: 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 the amount of time a couple lives together on a case-by-case basis, and prolonged cohabitation alone is not indicative of a common-law marriage.

It is important to note that same-sex couples can also be recognized as being in a common-law marriage. The U.S. Supreme Court decision in Obergefell v. Hodges (2015) ruled that same-sex couples have the right to marry on the same terms as heterosexual couples, including common-law marriages. This means that state courts have the power to declare same-sex relationships as common-law marriages if they would accord the same status to a heterosexual union.

Additionally, the recognition of common-law marriages can have implications for Social Security benefits. Both same-sex and heterosexual couples may be eligible for benefits based on their spouse's earnings record, such as survivor benefits, disability benefits, and retirement benefits. However, they must first prove that they had a valid, legally recognized common-law marriage.

Retroactive recognition

The recognition of common-law gay marriages has been particularly significant in divorce proceedings, where the date of marriage is crucial for determining alimony and dividing the marital estate. It also impacts income tax filing status, inheritance tax, and spousal benefits in social security. Additionally, it can play a role in personal injury cases and employment law, such as when determining worker's compensation death benefits.

The recognition of common-law gay marriages also has implications for parent-child relations, especially in custody proceedings and protecting children's inheritance rights. This was evident in Arkansas, where lesbian married parents were not receiving the same parentage recognition as opposite-sex married parents.

While the specific requirements to prove a common-law marriage vary by state, generally, courts evaluate evidence presented by the couple seeking recognition. This includes testimony and evidence regarding the exchange of words in the present tense expressing the intention to be married and other proof that the couple held themselves out as a married couple publicly. It is important to note that prolonged cohabitation alone does not establish a common-law marriage.

In some states, like Pennsylvania, common-law marriages were abolished before the legal recognition of same-sex marriage. However, courts have held that same-sex common-law marriages should be recognised retroactively if they were established before the Supreme Court's 2015 decision. For example, in Pennsylvania, a same-sex common-law marriage contracted before January 1, 2005, will be recognised even if it predates the legalisation of same-sex marriage in the state.

Social security benefits

In the United States, same-sex couples have a constitutional right to "civil marriage on the same terms and conditions as opposite-sex couples". This includes common-law marriages, which are marriages by express agreement of the parties in the present tense for the purpose of establishing a marriage where the couple subsequently holds themselves out as married.

As of 2022, only nine states (plus Washington, D.C.) legally permit couples to establish new common-law marriages. However, more than a dozen other states will recognize common-law marriages if they were established before the practice was abolished in that state. This includes states that did not recognize same-sex marriages at the time. For example, Pennsylvania will recognize a same-sex common-law marriage if it was established before January 1, 2005, even though the state did not recognize same-sex marriages until 2014.

If you are in a common-law marriage, you may be eligible for Social Security benefits based on your current or former spouse's earnings record, such as survivor benefits, disability benefits, and retirement benefits. This is true for both gay and heterosexual couples. However, you will need to prove that you had a valid, legally recognized common-law marriage. The Social Security Administration (SSA) will only recognize a same-sex common-law marriage if it was established in a state that recognized common-law marriage in general.

Some things that courts and agencies traditionally considered as evidence of a common-law marriage may not be available for gay couples who entered committed relationships when same-sex marriage was illegal. For example, it may have been unrealistic or dangerous for some gay couples to hold themselves out in public as married, and they would not have been able to file joint tax returns or list their partners as their "spouse" on official records. However, this does not mean it is impossible to provide other evidence of a marital relationship. The SSA will consider all available evidence to determine benefit eligibility for LGBTQ survivors who could not marry in their home states. This may include details about how long the couple was together, whether they owned property or raised children together, and whether they took steps to have the partnership formally recognized.

If you are unsure whether you qualify for benefits as a partner or survivor of a same-sex marriage or civil union, the SSA encourages you to apply anyway to ensure you do not lose out on any benefits. You can call Social Security at 800-772-1213, visit your local field office, or consult the SSA publication "What Same-Sex Couples Need to Know".

Evidence of marriage

Gay couples can have a common-law marriage, and they have the same legal right as opposite-sex couples to establish one. However, gay and lesbian partners may find it more challenging to gather the evidence required to prove their relationship qualifies as a common-law marriage. This is because, before same-sex marriage was legalized, these couples couldn't file joint tax returns or list their partners as spouses on many official documents. Same-sex couples also faced discrimination in social and professional settings, which meant they couldn't always hold themselves out in public as a married couple.

Despite these challenges, same-sex partners can still provide evidence of their common-law marriage. Courts may evaluate evidence presented by the parties seeking to have the common-law marriage recognized. While requirements may vary from state to state, evidence and testimony are generally taken regarding the exchange of words in the present tense, indicating the couple's intention to be married and other proof that they acted as a married couple in public.

• An agreement or other official documents signed by both partners declaring their intention to marry
• Deeds showing title to property held jointly by both parties
• Bank statements and checks showing joint ownership of accounts
• Loan documents, leases, mortgages, and promissory notes indicating joint financial obligations
• Credit card accounts in the names of both spouses
• Driver's license or Social Security number cards showing a name change that matches the spouse's name
• Friend and family affidavits: Affidavits from people familiar with the relationship, including how they know the couple, the length of time the couple has lived together, whether there was a public announcement of the marriage, and if friends, neighbors, and family consider them married
• If both spouses are alive, their signed statements and those of two blood relatives. If one spouse is deceased, the signed statement of the living spouse and two blood relatives of the deceased. If both spouses are deceased, the signed statements of one blood relative from each. All signed statements should explain why the signer believes there was a marriage between the two individuals.

State recognition

In the United States, the recognition of common-law marriages varies across states. As of 2022, only nine states (plus Washington, D.C.) legally permit couples to establish new common-law marriages. However, over a dozen other states will recognize common-law marriages if they were established before the practice was abolished in that state.

The recognition of common-law marriages for same-sex couples is a more recent development. The 2015 U.S. Supreme Court ruling in Obergefell v. Hodges extended marriage equality to same-sex couples nationwide, and state courts have the power to declare same-sex relationships as common-law marriages if they would accord the same status to heterosexual unions. This means that in states where common-law marriages were abolished before the legal recognition of same-sex marriage, same-sex couples can still have their common-law marriages recognized retroactively. For example, in Pennsylvania, a same-sex common-law marriage will be recognized if contracted before January 1, 2005, even though Pennsylvania did not recognize same-sex marriages until 2014.

The recognition of same-sex common-law marriages is particularly important for couples who were prevented from entering into a ceremonial marriage due to laws that have since been declared unconstitutional. However, proving a common-law marriage status can be challenging, especially if the couple entered into a committed relationship when same-sex marriage was illegal. Some traditional evidence of a common-law marriage, such as joint tax returns or listing partners as "spouse" on official records, may not be available for these couples. Nevertheless, courts have recognized that other evidence can be presented to demonstrate when a marital relationship was first established, and same-sex couples are entitled to have their valid common-law marriages recognized.

The Social Security Administration will recognize a same-sex common-law marriage if it was established in a state that recognized common-law marriage in general. This recognition provides same-sex couples with access to Social Security benefits based on their spouse's earnings record, such as survivor benefits, disability benefits, and retirement benefits.

While there has been significant progress in the legal recognition of same-sex common-law marriages, some states still have constitutional amendments or statutes banning marriage for same-sex couples. Additionally, certain states, such as Kansas, North Carolina, and Mississippi, have passed laws permitting discrimination against married same-sex couples, although the Mississippi law has been challenged and overturned by a federal court.

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