Kara Sears
Common-law marriage is a type of marriage without a marriage certificate or formal ceremony. Instead, a couple may be considered married if they meet certain legal requirements, such as living together for a certain period, presenting themselves as a married couple to their community, and having the capacity to marry. While most states ban common-law marriages, some states recognize them and offer the same benefits as traditional marriages. Additionally, all states recognize legal marriages from other states. To determine whether a couple has a common-law marriage, it is advisable to consult an experienced family law attorney.
Characteristics of Common Law Marriage
| Characteristics | Values |
|---|---|
| Marriage License | Not required |
| Formal Ceremony | Not required |
| Certificate | Not required |
| Recognition | Recognized by some states, but not all |
| Immigration | Valid for immigration purposes if recognized by the state in which it was established |
| Same-Sex Marriage | Recognized in some places |
| Divorce | Same process as for traditional marriages |
| Rights | Same rights as other married couples in most cases |
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What You'll Learn
Common-law marriage and immigration
The recognition of common-law marriages varies across different countries and jurisdictions. In the United States, some states recognize common-law marriages, while others do not. For immigration purposes, the validity of a common-law marriage is determined by the laws of the jurisdiction in which it was established. The U.S. Citizenship and Immigration Services (USCIS) recognizes common-law marriages for naturalization purposes if the marriage is valid and recognized by the state in which it was established.
In the context of U.S. immigration, common-law marriages can be relevant for visa applications and green card eligibility. While a marriage certificate or other legal proof of marriage is typically required, common-law marriages may be scrutinized for their legality. For example, in the state of Texas, individuals in a common-law marriage can file an I-130 form and provide proof that their union is legally recognized under Texas law.
It's important to note that U.S. visa law does not recognize common-law relationships for derivative visa status. In such cases, partners must qualify for a visa in their own right. However, partners who are members of the household of the principal visa holder and are traveling to the U.S. to accompany that person may apply for a B-2 visa.
In Canada, citizens and permanent residents can sponsor their common-law partners for immigration purposes. To be recognized as a common-law partner, couples must have lived together in a marital-type relationship for at least one year. The marriage or union must also be legally recognized in the country where it was performed and in Canada.
Overall, the recognition of common-law marriages for immigration purposes depends on the specific laws and regulations of the country or jurisdiction in question. While some countries may recognize common-law marriages, others may require additional legal proof or alternative visa options for partners.
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Common-law marriage and same-sex couples
Common-law marriage is a marriage by express agreement between two people, who then live together and present themselves as a married couple. Common-law marriages are recognised in some US states, and all states must honour out-of-state marriages, even if they don't recognise common-law marriages themselves.
In the US, common-law marriages have the same legal status as ceremonial marriages, and the same rights, benefits and responsibilities. This includes the process of divorce, which is the same for all couples, regardless of how their marriage was established.
Same-sex couples have the same legal rights in a common-law marriage as heterosexual couples. In 2015, the Supreme Court case of Obergefell v. Hodges legalised same-sex marriage across the US, and since then, some state courts have ruled that same-sex couples can claim common-law marriage. For example, in Pennsylvania, a same-sex common-law marriage will be recognised if contracted before January 1, 2005, despite same-sex marriage not being recognised in the state until 2014. In South Carolina, a court ruled that a same-sex couple who lived together for 40 years had a common-law marriage.
To establish a common-law marriage, couples must meet certain requirements, which vary from state to state. Generally, couples must live together, have the legal right to marry, and present themselves to friends and family as a married couple. An experienced family law attorney can help determine whether a couple has a common-law marriage and understand their marital rights and obligations.
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Common-law marriage and divorce
Common-law marriage is a marriage without a formal ceremony or marriage license. It has existed for over 150 years in the United States, with roots in medieval times when justices of the peace and clerks of the law could not travel to marry couples due to a lack of roads and access to transportation. Common-law marriage can change the marital status of an unmarried couple to a legally married couple, and it is recognized in some states, including Colorado, Iowa, Kansas, Oklahoma, Rhode Island, Texas, Utah, Montana, and New Hampshire.
To establish a common-law marriage, a couple must live together (cohabitation) for a certain amount of time (one year in most states). Same-sex couples can also establish a common-law marriage, with the same legal rights as other couples. However, it is important to note that unmarried couples, including same-sex couples, must be careful about their rights in places that do not recognize common-law marriage.
If a couple with a common-law marriage separates, they will have to go through a legal divorce process, similar to that of a traditionally married couple. They will need to handle issues of alimony, child custody, and support. In some cases, one partner may have to prove the existence of the common-law marriage to claim benefits, inherit property, or make medical decisions on behalf of their spouse.
It is advisable to hire an attorney during the divorce process, as they can help navigate the legal requirements and protect one's rights. The definition of common-law marriage can significantly impact the division of assets upon separation, including businesses, retirement accounts, and physical properties.
While common-law marriage is recognized in certain states, it is important to note that there is no such thing as a "common-law divorce." Regardless of the type of marriage, couples must still file for divorce in court and follow the same legal proceedings as any other married couple.
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Common-law marriage and prenups
A prenuptial agreement, or prenup, is a contract between two people who are planning to marry. It outlines the couple's financial and property rights in the event of divorce or separation. While prenups are not necessary for all couples, they can be beneficial for those with significant assets or debts, or those who want to clarify their expectations regarding property division or spousal support during separation or divorce.
In the context of common-law marriage, where a couple lives together and presents themselves as married without a formal ceremony or marriage license, prenups can still be relevant. Common-law marriages are recognised in some US states and a few other countries, and they hold the same legal weight as traditional marriages in terms of responsibilities during a breakup or divorce.
For couples in common-law marriages, a prenup can provide financial protection and clarity, especially if they have significant assets or debts. However, it's important to note that the validity of prenups in common-law marriages may vary depending on the jurisdiction. For example, in Texas, courts require more than a signature, including evidence of voluntary agreement, compliance with legal standards, and full financial disclosure.
To ensure the enforceability of a prenup in a common-law marriage, it is crucial to consult with a lawyer familiar with the specific state or country's laws. The prenup should be a written contract, signed voluntarily by both parties with full disclosure of financial details and fair terms.
It's worth noting that an alternative to a prenup for unmarried couples, including those in common-law marriages, is a cohabitation agreement. This type of agreement outlines the rights and responsibilities of each partner within the relationship and can include financial and non-financial matters. Cohabitation agreements can be a good option for couples who do not plan to marry or are not yet married but want to protect themselves legally.
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Common-law marriage and name changes
A common-law marriage is a union between a man and a woman who have not been formally married, recognised by a state based on that particular state's laws. Common-law marriages are not recognised in all US states, and each state has its own requirements for a union to be defined as a common-law marriage.
In some places, same-sex couples can establish a common-law marriage. After Obergefell v. Hodges (2015), where the Supreme Court legalized same-sex marriage across the U.S., these couples could claim common-law marriage. However, unmarried couples must be careful about their rights in places that do not recognize common-law marriage.
If you have a common-law marriage, you could be entitled to the same benefits as other married couples. However, it's important to note that there is no formal ceremony or marriage certificate for common-law marriages. As a result, the process for changing your name after a common-law marriage is different from a traditional marriage.
To legally change your name after a common-law marriage, you must follow the process of a name change at will or by "common law". While this is perfectly legal under the U.S. Constitution, you will need to take additional steps to make the name change official. This typically involves obtaining a legal name change through your local county court system. Once you have a name change order, you can notify government agencies and submit the necessary paperwork to update your records.
In Texas, for example, there is no specific law regarding name changes after an informal (common law) marriage. To change your name on a Texas driver's license or ID, you will need to provide a marriage license or a marriage verification letter from the Texas Department of State Health Services (DSHS). This is the same process as for a traditional marriage. However, it's important to note that Texas may have different requirements for changing your name in other contexts, such as registering to vote with a hyphenated last name.
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Frequently asked questions
Common-law marriage is a type of marriage without a marriage license, certificate, or formal ceremony. A couple could be considered married if they meet certain legal requirements, which vary by state.
The requirements vary by state but can include long-term cohabitation, presenting as a married couple, and having the capacity to marry. Some states also require the mutual consent of the intention to get married.
Common-law marriages are recognized by the government in some states, and all states recognize legal marriages from other states. For immigration purposes, common-law marriages are recognized if they are valid and recognized by the state in which they were established.
