Common Law Divorce: Is It Possible?

Common-law marriages are legally recognised in some US states, but not all. They are also recognised in some other countries, including the UK. Common-law marriages are formed when two people consider themselves married and present themselves as such to the public, but without obtaining a marriage license. While the specific requirements vary by location, common-law marriages are generally established by cohabitation, shared finances, and other similar factors. When it comes to divorce, common-law marriages are treated similarly to traditional marriages. This means that individuals in a common-law marriage must go through the same legal process of divorce as those in a formal marriage, including filing a formal petition with the court and meeting state residency requirements.

Can Divorce Be Done Under Common Law?

Proving a common-law marriage

Common-law marriage, also known as marriage without formalities or informal marriage, is a valid and legal way for a couple to marry without a marriage license or certificate. Common-law marriages are fully recognised in seven states and the District of Columbia.

To prove a common-law marriage, couples may need to provide evidence such as joint tax returns, insurance policies, or shared property. Other documents that can be used to establish a common-law marriage include lease agreements, affidavits, property deeds, and official documents signed by both partners declaring their intention to marry. In some cases, couples may need to go to court to prove the existence of a common-law marriage, especially if there is a dispute.

For couples in valid common-law marriages, they generally have the same legal rights and obligations as any other married couple. This includes the right to divorce and the associated legal processes. However, it is important to note that the recognition of common-law separations varies by state, with some states, like Texas, not recognising common-law separations.

To prove a common-law marriage in the event of a divorce, couples may need to provide evidence that meets the specific conditions and legal requirements for common-law marriages in their state. This may include:

• Proving that the marriage was established in a state that recognised common-law marriages
• Demonstrating that both partners intended for their relationship to be a marriage
• Showing that they lived together and held themselves out in public as a married couple
• Providing evidence of joint assets, such as property or bank accounts
• Establishing legal paternity for any children involved, which can impact child custody and support arrangements

It is always best to consult with an attorney or a family law specialist for specific guidance on proving a common-law marriage and navigating the associated legal processes.

Child custody

Common-law marriages differ from traditional marriages in that there is no license obtained before marriage. Establishing a common-law marriage requires specific conditions to be met, and there are unique challenges when it comes to dissolving the union. One of the main challenges is disputing the existence of the marriage, as a partner may deny it to avoid obligations like alimony or property division.

When it comes to child custody in common-law marriages, legal paternity must be established first. While children born during a marriage are legally considered the offspring of both partners, for unmarried couples, paternity must be acknowledged or established through adoption.

In the case of divorce, child custody decisions are typically made through informal settlement negotiations or out-of-court alternative dispute resolution proceedings like mediation. The court, usually a family court judge, decides, giving the "best interests of the child" the highest priority. This includes factors such as the child's age, the parent's health and lifestyle, and the parent's ability to provide basic needs.

There are two types of child custody: physical and legal custody. Physical custody determines where the child will live, with the parent having full or sole physical custody recognised as the "custodial" parent. Legal custody gives the parent the right and obligation to make decisions regarding the child's upbringing, including education, religious upbringing, and healthcare. Legal custody can be sole or joint, with joint custody requiring both parents to have equal responsibility and consent in decision-making.

In Ontario, Canada, common-law relationships are on the rise, and one advantage is that no legal action or divorce process is required when the couple breaks up. However, all parents, married or not, are entitled to seek custody and access to their children. The Children's Law Reform Act provides guidance on what the court must consider in assessing the best interests of the child, including the child's emotional ties, the views and preferences of the child, and the ability of each person seeking custody to provide for the child's needs.

Separation

One of the primary challenges in ending a common-law marriage is proving its existence. Common-law marriages lack official documentation, and much of what defines the marriage occurs in private. However, a family law attorney can assist in building evidence to demonstrate the agreement between the couple to be legally married. This may include presenting joint tax returns, insurance policies, shared property, or even having a partner's past actions, such as signing a mortgage together, serve as evidence of the couple presenting themselves as married to the community.

When it comes to separation, couples in a common-law marriage may opt for a legal separation over divorce for various reasons, such as retaining insurance policy benefits. Similar to traditional marriages, common-law marriages that are ending may face issues related to child custody and the division of assets or community property. In the case of children, establishing legal paternity is crucial for determining custody and support arrangements. For asset division, factors such as the reason for the divorce and the types of assets held will influence the division process.

It is important to note that even if a couple continues to live together after a common-law marriage has been legally dissolved, there is no "annulment" of the divorce. The only legal consequence of continuing to cohabit may be the jurisdiction of specific courts to determine property disputes. Additionally, if individuals wish to remarry after separating from a common-law marriage, obtaining an official divorce is essential to avoid potential charges of bigamy.

Division of assets

Firstly, it is essential to establish the existence of a common-law marriage. A common misconception is that cohabiting for an extended period automatically results in a common-law marriage. However, specific conditions must be met, and these vary across different states. For instance, Texas does not recognize common-law separations, whereas Kansas does. Therefore, it is imperative to understand the laws of the relevant state.

Once the common-law marriage is established, the division of assets will depend on the laws of the state where the divorce takes place. Most states follow one of two systems: community property or equitable distribution. In community property states, assets acquired during the marriage are typically held jointly and are more likely to be equally divided. On the other hand, equitable distribution states consider the specific circumstances of the couple and divide the assets in a way that is deemed fair, but not necessarily equal.

Separate and marital property must be distinguished during the division of assets. Marital property includes assets earned or acquired during the marriage, unless specified otherwise in a prenuptial agreement. Separate property, such as assets brought into the marriage by one spouse, can remain with that individual if they can prove ownership. However, the distinction can become blurred when separate and marital funds are mixed or when joint funds are used for improvements on a house owned by one spouse before the marriage. In some states, judges have the discretion to include all assets and debts, both separate and marital, in the division.

To ensure a fair division of assets, it is advisable to seek the guidance of an experienced divorce lawyer. They can help navigate the complexities of state laws and negotiate a settlement that protects their client's best interests. Couples may also opt for negotiation or mediation to reach an agreement without resorting to the courts. While this can be challenging, it allows both parties to have a say in the division of their property and avoid the potential contentiousness of legal proceedings.

Grounds for divorce

In the United States, all states accept no-fault divorce, where neither party is held responsible for the failure of the marriage. In these cases, the marriage might be described as having irretrievably broken down, or the couple cite irreconcilable differences. Many states require the couple to have been separated for a certain period of time, and to swear that the marriage is irreparably broken. No-fault divorces are more common than fault divorces, as they are more convenient, less expensive, and cause less strain on families.

Fault divorces are where one party is asking for a divorce because they claim the other party did something wrong. Grounds for fault divorce in the US have included impotence, cruelty, desertion, neglect, habitual intemperance, fraud, adultery, and conviction of a felony. However, some states no longer offer fault divorce grounds.

In some countries, such as Switzerland and Germany, fault need not be established for a divorce to be granted. In Germany, a divorce is granted if the marriage has broken down, which is assumed if the couple has been living apart for one year and both apply for divorce, or if the respondent consents to the divorce.

In China, ancient law recognised three types of divorce: mutual consent; repudiation of "seven grounds for men and three grounds for women"; and "intolerable acts against principles of conjugality".

In Hinduism, the Hindu Marriage Act of 1955 allows divorce on certain grounds, including mutual consent. The Act is based on the fault theory, where an aggrieved spouse can approach the court and seek a divorce.

Common-law marriages differ from traditional marriages in that there is no license obtained before marriage. Recognition of common-law separation varies by state. For example, Texas doesn't recognise common-law separations, but Kansas does. A unique challenge of common-law marriages is that a partner may deny the existence of the marriage to avoid obligations like alimony or property division.

Frequently asked questions