Cecily Zamora
Common-law marriage, also known as marriage without formalities or informal marriage, is a valid and legal way for a couple to marry in some states. Common-law marriage has been practiced in the United States since the 1870s. If you are recognized as common-law married by your state, you can file taxes as married. Common-law partners should hold themselves out as married to the public, and this includes using joint credit cards and holding joint bank accounts. Common-law couples can also take advantage of estate planning benefits.
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What You'll Learn
Common-law marriage recognition by state
In the United States, common-law marriage is a form of irregular marriage that is only recognised in a few states. Common-law marriages are distinct from traditional marriages in that they do not require a marriage license, marriage ceremony, or marriage certificate. Instead, they are based on a couple's mutual agreement to live as spouses, cohabitation, and public presentation as a married couple.
The recognition of common-law marriage varies across states, and each state has its own specific requirements and implications. While some states fully recognise common-law marriage, others have limited recognition or do not recognise it at all. It is important to note that even within states that recognise common-law marriage, there may be specific regulations and requirements that must be met for the marriage to be valid.
As of 2022, common-law marriages are recognised in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah and New Hampshire have limited recognition of common-law marriage. Additionally, some states have abolished common-law marriage but still recognise such marriages formed before a certain date or for specific purposes. These include Alabama, Florida, Georgia, Indiana, Ohio, and Pennsylvania.
The requirements for a valid common-law marriage typically include the capacity to marry, mutual agreement to be married, cohabitation, public recognition of the marriage, and consummation. Some states may also require evidence of intent to marry, such as joint financial accounts or the use of marital titles. It is important to consult with legal professionals and maintain comprehensive documentation to safeguard the rights of couples in a common-law marriage, especially when crossing state lines.
In terms of legal rights, couples in a common-law marriage recognised by their state may enjoy benefits similar to those of traditionally married couples, including inheritance rights, decision-making in medical situations, and financial advantages such as shared finances and tax benefits. However, it is important to note that the lack of formal documentation can lead to ambiguity regarding marital status, potentially causing legal disputes or misunderstandings.
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Common-law marriage eligibility criteria
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a form of irregular marriage that does not require a marriage license or a formal ceremony. While it is not recognised in all jurisdictions, some states and countries that do recognise common-law marriage include:
- Nine US states with some restrictions: Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, Utah, and New Hampshire
- The District of Columbia
- Canada
- British Columbia
The eligibility criteria for common-law marriage vary depending on the specific laws and requirements of the state or country in which the marriage takes place. However, there are some general criteria that are typically considered in recognising a common-law marriage:
- Legal capacity to marry: Both partners must meet the legal requirements for marriage, including being of legal age (usually 18 years old) and having the mental capacity to enter into a marriage. They cannot already be married to other people.
- Intent to be married: Both partners must intend to be married and hold themselves out as a married couple to friends, family, and the public. This can include referring to each other as "spouse," taking the same last name, and otherwise behaving as a married couple.
- Cohabitation: The couple must live together as a married couple, although there is no statutory requirement for the length of time they must live together. The court considers the amount of time a couple lives together on a case-by-case basis.
It is important to note that the specific requirements and eligibility criteria for common-law marriage can vary depending on the state or country in which the marriage takes place. Therefore, it is always best to consult with a legal professional or refer to the specific laws and regulations of your jurisdiction to understand the exact criteria that must be met.
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Common-law marriage declaration
Common-law marriage is an informal type of marriage without a marriage license or certificate. Common-law marriage is currently recognized in seven states and the District of Columbia. Each state has its own rules regarding common-law marriage, so it is important to check the specific requirements for your state. However, there are some general criteria that must be met for a common-law marriage to be considered valid. Both parties must be free to marry, meaning they are not already married to someone else. In addition, there must be a mutual and open assumption of a marital relationship. This can be proven through various documents, such as affidavits, property deeds, birth certificates, bank statements, and other records that demonstrate joint ownership or financial obligations.
To establish a common-law marriage, you may need to provide a personal affidavit stating that you and your partner mutually agreed to become spouses, including the date and location of this agreement. You can also include any previous marriages and their dates of dissolution, as well as any other details that help demonstrate a spousal relationship. Additionally, you can gather affidavits from friends and family who know you and your partner and can attest to your relationship.
Other documents that can help establish a common-law marriage include public announcements of your marriage, such as save-the-date cards, wedding invitations, or social media posts. Name changes on official documents, such as driver's licenses or social security cards, that match your spouse's name can also be used as evidence. If you have children together, birth certificates that name both of you as parents can be helpful. Any documents showing that one spouse has assumed the surname of the other can also be included.
Financial documents that demonstrate joint ownership or financial obligations can also help establish a common-law marriage. This includes deeds to property held jointly, bank statements, loan documents, leases, mortgages, and credit card accounts in both spouses' names. Essentially, any records that show a mutual assumption of a marital relationship and shared financial responsibilities can be used to support your declaration of common-law marriage. It is important to gather as much evidence as possible to prove that your common-law marriage exists and is recognized by your state.
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Common-law marriage separation
In Canada, common-law marriage is defined as living in a conjugal relationship with a person who is not your married spouse, with at least one of the following conditions applying:
- The person has been living with you for at least 12 continuous months.
- The person is the parent of your child by birth or adoption.
- The person has custody and control of your child, and the child is wholly dependent on them for support.
- You and your partner have cohabited continuously for three years or more, or have cohabited in a relationship of some permanence and have natural or adoptive children together.
Unlike married couples, common-law partners do not need a court decision to make their separation official. However, it is recommended to consult a lawyer or notary, especially when there are issues involving children, money, and property. While not necessary, a court can approve your agreement, which is called "homologation" and may be important if you want the revenue service to collect child support payments.
In terms of property, common-law couples are not legally required to split property acquired when they lived together. Furniture, household items, and other property belong to the person who bought them. However, if you contributed to property your spouse owns, you may have a right to part of it, and you may have to go to court to get back your contribution. Common-law partners can also choose to enter into a domestic contract, such as a cohabitation agreement or separation agreement, that sets out their respective rights to property.
In British Columbia, under the BC Family Law Act, when common-law couples separate, each spouse is entitled to 50% of the growth in equity in each spouse's assets from the date they began cohabitating until the date of separation. This includes the growth of equity in RRSPS, pensions, savings, chattels, and family property. On the other hand, any debt that either spouse had at the start of the cohabitation remains their own debt, but the growth of debt over the course of the relationship is generally subject to a 50/50 division.
In Ontario, property acquired during a marriage must be split equally when a marriage ends. This includes the family home, where the full value of the home is shared, even if one spouse owned it prior to the marriage. Any increase in value is usually divided equally.
It is important to note that common-law partners do not have the right to support payments for themselves unless they agree on it. However, some financial compensation may be possible if one partner was placed at a financial disadvantage for the benefit of the other.
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Common-law marriage tax implications
Common-law marriage is a form of legal marriage. Common-law spouses may file jointly if recognised by their state and if they filed jointly on their federal tax return. Filing a joint tax return can be used as evidence of marriage.
If you are recognised as common-law married by your state, you can file as married for tax purposes. However, if you separate, you will need to get divorced with all the property and support obligations that entails.
In the case of a common-law married couple getting audited for their married filing jointly (MFJ) status, using a joint return as evidence of their marriage could create a "chicken and egg" problem. This is because once you hold yourself out as married, you are married, and you cannot get a common-law divorce.
If you file a joint tax return, your tax liability becomes "joint and several", meaning you are each responsible for the taxes in full.
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Frequently asked questions
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 formal wedding ceremony. Common-law marriage has been practiced in the United States since the 1870s.
The couple should have the legal capacity to marry, meaning they should be 18 years or older, have the mental capacity to understand the legal framework, and be unmarried. The couple must also intend to get married in the future and hold themselves out as married to the public.
If a couple chooses not to declare their common-law marriage, documents such as lease agreements, tax returns, and insurance policies may be requested to prove the marriage. A joint tax return can also serve as evidence of a common-law marriage.
Common-law partners can often save money by filing a joint return and are eligible for the same legal benefits as married couples. Common-law couples can also take advantage of estate planning benefits, such as an unlimited marital exemption from estate planning.
While there are financial benefits, filing taxes jointly as a common-law marriage means that your tax liability becomes "joint and several", meaning each partner is responsible for taxes in full. Additionally, if you separate, you will need to get divorced like any other married couple.
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