Understanding Common Law Marriage: Who Can Be Legally Recognized?

Common-law marriage, also known as marriage without formalities or informal marriage, is a way for couples to marry without an official ceremony. It is recognised in some places, such as certain states in the US, parts of Canada, and historically in England, but not in others, such as Australia. The requirements for a couple to be considered common-law married vary depending on the location, but generally include cohabitation, the legal capacity to marry, intent to be married, and holding themselves out as a married couple.

Characteristics and Values of Common Law Marriage

Common-law marriage requirements vary by state

The requirements for a common-law marriage vary not only between countries but also between states or provinces within a country.

In the United States, common-law marriage is recognised in only a few states, including Alabama, Colorado, Texas, and Pennsylvania. Some states have abolished common-law marriage but still recognise such marriages if they began before a certain date. For example, Florida, Georgia, Indiana, and Ohio recognise common-law marriages created before 1 January 1968, 1 January 1997, 1 January 1958, and 10 October 1991, respectively.

In the US, common-law marriage requirements include cohabitation, the legal right or "capacity" to marry, intent to be married, and behaving as a married couple. While there is no statutory requirement for the length of time a couple needs to live together, the longer a couple lives together, the stronger their case is for a common-law marriage. Both partners must have the legal capacity to marry, meaning they must be at least 18 years old, of sound mind, and not already married. They must also behave as a married couple, referring to each other in public as "spouse," "husband," or "wife," and taking the same last name.

In Canada, common-law marriage is not recognised, although common-law relationships are recognised for certain purposes. Citizenship and Immigration Canada states that a common-law partner refers to a person who has lived in a conjugal relationship with another person for at least one year. A conjugal relationship is defined as a relationship with a significant degree of commitment, evidenced by sharing a home, supporting each other financially and emotionally, having children together, or presenting themselves in public as a couple.

In Australia, common-law marriage is not recognised, although de facto relationships are recognised in the Family Law Act (Commonwealth).

Cohabitation is not a requirement for common-law marriage

Common-law marriage, also known as non-ceremonial marriage, is a marriage that results from the couple's agreement to consider themselves married, followed by cohabitation, without going through a statutorily defined process. It is important to note that not all jurisdictions permit common-law marriage, but they will generally respect the validity of such marriages lawfully entered in other states or countries.

The term "common-law marriage" is often used incorrectly to describe various types of couple relationships, such as cohabitation, whether or not registered, or other legally formalized relations. These interpersonal relationships are often called "common-law marriage", but they differ from its original legal meaning as they are not legally recognized marriages.

While cohabitation is often associated with common-law marriage, it is not a requirement. The original concept of a "common-law" marriage is one that is considered valid by both partners but is not formally recorded with a state or religious registry, nor celebrated in a formal civil or religious ceremony. Instead, the act of the couple representing themselves to others as being married and organizing their relationship as if they were married is what constitutes a common-law marriage.

In the United States, common-law marriage laws vary by state. For example, Texas recognizes common-law marriage, also known as "informal marriage," as a valid and legal way for couples to marry. Same-sex couples can enter into common-law marriages in Texas following the Supreme Court's decision in Obergefell v. Hodges, which legalized same-sex marriage nationwide. However, Alabama previously recognized common-law marriage but has recently moved to abolish it, reflecting a nationwide trend.

In Canada, while common-law marriage is not officially recognized, common-law relationships are acknowledged for certain purposes and are regulated by provincial law. Citizenship and Immigration Canada defines a common-law partner as someone who has lived in a conjugal relationship with another person (opposite or same-sex) for at least one year.

In conclusion, while cohabitation is often associated with common-law marriage, it is not a requirement. The key factors are the couple's agreement to be married, their eligibility to marry, and their public representation as a married couple. The requirements and recognition of common-law marriage vary depending on the jurisdiction, and it is always essential to refer to the specific laws and regulations of a particular state or country.

Same-sex couples can be common-law married

In the United States, same-sex couples can be common-law married. While only 16 states recognize common-law marriage, all states must recognize valid marriages performed in other states. This includes common-law marriages, which are recognized in some states.

In the US, common-law marriage requirements do not mention any specific gender. The Supreme Court in Obergefell v. Hodges ruled that same-sex couples have the right to marry. This was bolstered by the 2022 Respect for Marriage Act, which ensures protections for same-sex marriages.

In addition, a South Carolina court ruled that a same-sex couple who lived together for about 40 years had a common-law marriage. The ruling stated that the Supreme Court case legalizing same-sex marriage applies retroactively, and the couple had been common-law married since 1987. This was believed to be the first time a judge had applied the Supreme Court ruling retroactively to find a same-sex common-law marriage.

In Canada, same-sex partners can also marry legally in Quebec, as elsewhere in the country. While Canada does not have the institution of common-law marriage, common-law relationships are recognized for certain purposes. Citizenship & Immigration Canada states that a common-law partner refers to a person in a conjugal relationship with another person of any sex for at least one year.

In Australia, common-law marriage is not recognized as it is understood under common law.

Common-law marriage is not recognised in Australia

The Marriage Act 1961 established a unified legal definition of marriage under federal law in Australia. The Act stipulates the conditions that need to be met for a marriage to be recognised, such as age and who can perform the marriage ceremony. The general age of marriage in Australia is 18 years, but in "unusual and exceptional circumstances", a person aged 16 or 17 can marry with parental consent and court authorisation. There is no citizenship or residency requirement for marriage in Australia, so casual visitors can lawfully marry in the country as long as they employ a domestic marriage celebrant, give the requisite notice, and satisfy other domestic requirements.

While the Marriage Act only recognises marriages, de facto relationships are recognised in Australia and are defined as couples who have lived together in a genuine domestic relationship for two years. De facto relationships provide couples with most, though not all, of the same rights as married couples. Since 2009, same-sex couples have been included in Australia's de facto relationship laws. De facto relationships are regulated by a combination of federal and state/territory laws, and the laws vary between states. In Western Australia, for example, the state has not referred its jurisdiction to the Commonwealth, so state legislation is still valid.

It is important to note that while common-law marriage is not recognised in Australia, the term "de facto" is used to describe a couple who live together and share a domestic life, but are not married. This term is also used in legal contexts, such as when discussing property ownership or financial obligations between unmarried couples.

Common-law marriage is not recognised in Canada

In Canada, common-law marriage is not recognised as a form of marriage. 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 legally defined as "unmarried spouses" and, in certain contexts, treated the same as married spouses, for instance, when it comes to taxes and financial claims.

The Civil Code of Quebec has never recognised common-law partnerships as a form of marriage. However, many laws in Quebec explicitly apply to common-law partners (called conjoints de fait) in "de facto unions" in the same way as they do to married spouses. Same-sex partners are also recognised as conjoints de fait in de facto unions, for the purpose of social benefit laws. Nevertheless, common-law partners do not have any legal rights between them, such as alimony, family patrimony, compensatory allowance and matrimonial regime.

In Canada, the federal and provincial governments share constitutional power with respect to marriage and divorce. The federal government has broad legislative responsibility for divorce, and for aspects of the capacity to marry or who can legally marry whom. The provinces are responsible for laws about the solemnisation of marriage. Marriages that take place in Canada must meet federal requirements with respect to the right to marry and provincial requirements with respect to solemnisation.

A common-law relationship is legally a de facto relationship, meaning that it must be established in each individual case, based on the facts. This is in contrast to a marriage, which is legally a de jure relationship, meaning that it has been established in law. Cohabitation means living together and combining affairs to set up a household together in one dwelling. To be considered common-law partners, couples must have cohabited for at least one year. This is the standard definition used across the federal government. It means continuous cohabitation for one year, not intermittent cohabitation adding up to one year.

A common-law or conjugal partner relationship cannot be established with more than one person at the same time. The term conjugal, by its very nature, implies exclusivity and a high degree of commitment. It cannot exist between more than two people simultaneously. Polygamous-like relationships cannot be considered conjugal and do not qualify as common-law or conjugal partner relationships.

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