Cameron Miranda
The topic of same-sex common-law marriage has been a subject of debate and court cases in the United States, with varying state laws and requirements. While some states, like Texas, have recognized same-sex common-law marriages, others have not, leading to confusion and legal challenges for same-sex couples seeking equal rights. Common-law marriage is typically established through evidence of cohabitation, shared assets, and holding themselves out as married to the public, but same-sex couples faced barriers in accessing these traditional markers of marriage before its legalization. The Supreme Court's 2015 Obergefell v. Hodges ruling, which legalized same-sex marriage, and subsequent decisions have clarified that same-sex couples have the same rights to common-law marriage as heterosexual couples, even retroactively. This has provided same-sex couples with legal recourse for divorce, spousal support, and property division, but unique characteristics, especially regarding child custody, may still complicate family law matters.
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What You'll Learn
Common law marriage requirements
In the United States, common-law marriage has existed since colonial times, and it is still recognized in some states today. Common-law marriage is a legal and informal marriage, where the couple never had a formal wedding ceremony and never obtained a marriage license or marriage certificate.
There are four general requirements to create a common-law marriage, although the precise requirements may vary from state to state. These are:
- Living together: While there is no statutory requirement for the length of time a couple needs to live together, generally, the longer a couple lives together, the stronger their case is for a common-law marriage.
- Legal right or "capacity" to marry: Both partners must have the legal capacity to marry, meaning they must be of legal age, sound mind, and not already married to someone else.
- Intent: Both partners must intend to be married, and this is usually demonstrated by an exchange of words in the present tense.
- Behavior: Both partners must hold themselves out to friends, family, and the public as being a married couple. This could include using the same last name, referring to each other in public as "husband" or "wife," or sharing joint bank accounts or credit cards.
Same-sex couples can be common-law married, and state courts have the power to declare a common-law marriage if they would accord the same status to a heterosexual union. This is particularly important for same-sex couples who were prevented from entering into a ceremonial marriage by laws that have since been declared unconstitutional.
It is important to note that not all states recognize common-law marriages, and some states only recognize common-law marriages if they were contracted before a certain date. As of 2019, only 16 states recognized common-law marriage, but this number may have changed since then.
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State recognition
Some states, such as Texas, have taken steps towards recognizing same-sex common-law marriages. In Texas, there is no requirement for a couple to be together for a specific period, and as long as the three elements outlined in Section 2.401 are met, a common-law marriage can be established. Texas law also allows couples to register their common-law marriage by filing a declaration with the county clerk, and if they choose not to declare it, other documents like lease agreements, tax returns, and insurance policies can be used to prove the marriage.
In South Carolina, a notable court ruling recognized a same-sex couple's common-law marriage, marking a significant step forward. The judge ruled that the Supreme Court case Obergefell v. Hodges, which legalized same-sex marriage, applies retroactively. This meant that a same-sex couple who had been together for about 40 years was recognized as having a common-law marriage, despite one partner's claims during separation that they were not legally married.
However, it is important to note that some states have explicitly stated that they will not recognize same-sex common-law marriages. For example, Alabama and Alaska have laws stating that they will not recognize same-sex marriages, including common-law marriages, as valid. Arkansas also has a similar stance, with laws stating that only the union of one man and one woman will be recognized as a valid marriage, and specifically excluding same-sex marriages.
Prior to the Supreme Court's ruling in United States v. Windsor in 2013, same-sex married couples faced significant disadvantages due to the Federal Government's refusal to recognize their marriages. This ruling mandated equal treatment for lawfully married same-sex couples, which had a significant impact on various laws and regulations pertaining to marital status, including those related to property rights, benefits, and taxation.
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Legal rights and benefits
The legal rights and benefits of common-law marriage vary depending on the state, as not all states recognize common-law marriages. As of 2022, only nine states and Washington, D.C., legally permit couples to establish new common-law marriages. However, all states must recognize valid common-law marriages that were established in other states where it was legal.
In states that recognize common-law marriages, same-sex couples can claim the same rights and benefits as opposite-sex couples. These rights and benefits include:
- Social Security benefits based on a spouse's earnings record, such as survivor benefits, disability benefits, and retirement benefits.
- Equitable distribution of marital property in a divorce action.
- Amending a death certificate of a deceased partner to include the marital status as "married" and adding the surviving spouse's name.
- Intestate succession (inheritance without a Will) from a deceased partner.
To prove a common-law marriage, a couple must generally demonstrate that they meet certain requirements, such as cohabitation, co-mingling of bank accounts, jointly filed tax returns, and listing each other as spouses on documents. However, it's important to note that the specific requirements may vary from state to state.
In some cases, same-sex couples who lived together and held themselves out as married before same-sex marriage was legally recognized may also be able to claim common-law marriage retroactively. This is because any state laws restricting common-law marriage to heterosexual couples were voided as a violation of the constitutional rights of same-sex couples.
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Children and family law
The recognition of same-sex common-law marriages varies across different states and countries. In the United States, the Supreme Court ruled in 2015 that same-sex couples have a constitutional right to "civil marriage on the same terms and conditions as opposite-sex couples". This means that same-sex couples are entitled to have their valid common-law marriages recognized. 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.
In Texas, for example, same-sex common-law marriages are recognized. According to the Texas Family Code, to prove a common-law marriage, either "a declaration of their marriage has been signed" or the couple "agreed to be married and, after the agreement, lived together in this state as [spouses] and there represented to others that they were married." This can include evidence of cohabitation, co-mingling of bank accounts, jointly filed tax returns, and listing each other as spouses on documents.
In Pennsylvania, a same-sex common-law marriage will be recognized if contracted before January 1, 2005, even though the state did not recognize same-sex marriages until 2014. Similarly, in South Carolina, a court recognized a same-sex common-law marriage dating back to 1987, despite same-sex marriage only being legalized in the state in 2014.
The recognition of same-sex common-law marriages is particularly important in the context of children and family law. Same-sex couples may face unique challenges when it comes to issues of child custody, visitation, conservatorship, and support. In these cases, each spouse may need to demonstrate that they are a legal parent to the child, which can be complicated if the child was conceived through assisted reproductive technology (such as sperm donation, egg donation, or surrogacy). In Texas, parentage can be established if the child was born or legally adopted during the same-sex couple's marriage.
Same-sex couples may also face challenges in accessing benefits such as Social Security or alimony if they cannot provide proof of a valid common-law marriage. To be eligible for certain benefits, a marriage must have lasted for a certain length of time. Therefore, establishing a common-law marriage date is crucial for same-sex couples who were prevented from entering into a ceremonial marriage due to discriminatory laws.
Overall, while the legal landscape has improved for same-sex couples seeking to establish common-law marriages, they may still face unique challenges and complexities, especially in states with less progressive laws and in areas of family law related to children and benefits.
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Proving 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 due to historical discrimination, where same-sex couples were unable to file joint tax returns, list their partner as their spouse on official documents, or publicly hold themselves out as a married couple.
To prove a common-law marriage, a court may evaluate evidence presented by the parties seeking to have the union legally recognised. The specific requirements to prove a common-law marriage vary by state, and only 16 states currently recognise it. However, all states recognise legal marriages created in other states. Some general requirements to prove a common-law marriage include:
- Both spouses must be at least 18 years old, or have parental consent if under 18.
- Both spouses must have the mental capacity to understand the commitment and consequences of marriage.
- The marriage must be monogamous, as bigamy is prohibited.
- The marriage cannot be incestuous.
- Both spouses must be legally single.
In Texas, a common-law marriage may be proved by evidence that the couple:
- Agreed to be married.
- After the agreement, cohabitated (lived) together in Texas as a married couple.
- Represented themselves to others in Texas as a married couple.
Couples in valid common-law marriages generally have the same legal rights and obligations as any other married couple. Proving a common-law marriage can be important for accessing benefits such as Social Security, alimony, tax benefits, and inheritance.
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