Kara Sears
Common-law marriage is a relic of old English law and is not recognized in every state or country. In the US, common-law marriage has existed since colonial times and is still recognized in 15 states and the District of Columbia. Each state has its own requirements, but common requirements include cohabitation, the legal right to marry, intent to be married, and behaving as a married couple. In some places, same-sex couples can also establish a common-law marriage. Couples in a common-law marriage are entitled to the same benefits as traditionally married couples, including tax breaks and inheritance rights. However, proving a common-law marriage can be complicated and uncertain, and some states are moving to abolish it.
Characteristics of common-law marriage
| Characteristics | Values |
|---|---|
| Number of states recognizing common-law marriage in the US | 15 + District of Columbia |
| Common-law marriage in the UK | Not recognized in England and Wales, limited recognition in Scotland and Northern Ireland |
| Common-law marriage in Canada | Unmarried partners who live together for a certain period or have children are afforded some rights and benefits of married couples |
| Common-law marriage in Norway | Couples who live together and have children are given some marriage-like rights |
| Requirements for common-law marriage | Cohabitation, legal right or "capacity" to marry, intent to be married, behaving as a married couple |
| Proof of common-law marriage | Living together, using partner's last name, filing joint tax returns, signing leases or other documents as spouses, making joint purchases, including partner on health insurance, making partner beneficiary of life insurance, joint loan applications, applying for public benefits and listing partner as spouse, having children together |
| Divorce in common-law marriage | Same as for traditionally married couples, there is no common-law divorce |
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What You'll Learn
Common law marriage requirements vary across states/countries
Common-law marriage, also known as non-ceremonial marriage, is a marriage that results from an agreement between the parties to consider themselves married, followed by cohabitation, rather than through a statutorily defined process. Common-law marriage requirements vary across states and countries, and not all jurisdictions permit it.
In the United States, common-law marriage is recognized in the District of Columbia and nine other jurisdictions. Each state has its own requirements that couples must meet, and these can vary from state to state. For example, Colorado's Supreme Court revised the elements for common-law marriage in 2021. In the United States, common-law marriage is merely an irregular way to contract a lawful marriage, and the same formal judicial proceedings are required to dissolve it.
In medieval Europe, marriage came under the jurisdiction of canon law, which recognized as valid a marriage in which the parties stated that they took each other as husband and wife, even in the absence of any witnesses. The Catholic Church forbade clandestine marriage at the Fourth Lateran Council in 1215, requiring all marriages to be announced in a church by a priest. The Council of Trent (1545-1563) introduced more specific requirements, ruling that future marriages would be valid only if witnessed by the pastor of the parish or the local ordinary (the bishop of the diocese), or by the delegate of one of these witnesses.
In England, common-law marriages were abolished by the Marriage Act of 1753, which required marriages to be performed by a priest of the Church of England. The Act applied to Wales but not to Scotland, which retained its own legal system. While there is no definitive law surrounding common-law marriages in England and Wales, couples in Scotland can make limited claims in the event of separation or death, and those in Northern Ireland have access to legal protection in certain cases.
Canada does not have the institution of common-law marriage, although common-law relationships are recognized for certain purposes. The regulation of non-marital relations, often referred to as "common-law spouses", falls largely under provincial law.
In Kuwait, intercourse outside of marriage is illegal, so recognition of common-law marriage can only apply in exceptional cases.
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Common law marriage and inheritance rights
Common-law marriage is a type of legal marriage that does not require a license, witnesses, or an officiated ceremony. It originated during a time when there were fewer formal bureaucratic processes available, and the government was satisfied with a social contract based on how people represented themselves to the community. Common-law marriage is currently only recognised in a handful of states, including Texas, Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Utah, and the District of Columbia.
In states that recognise common-law marriage, common-law spouses are generally afforded the same rights and privileges as those in a formal or traditional marriage. This includes inheritance rights, where a common-law spouse can inherit from their deceased partner's estate, regardless of whether the decedent died with or without a valid will. However, it is important to note that the specific requirements for establishing a common-law marriage vary by state. For example, in Texas, three elements must be met: cohabitation, holding themselves out to the public as married, and agreeing that they are married.
The lack of formal recognition of common-law marriage in some states can lead to disputes over inheritance, property rights, and financial assets upon the death of a partner. Surviving partners may face legal battles and uncertainties regarding their entitlements, especially if the deceased's family does not recognise the common-law marriage. Additionally, in states that do not recognise common-law marriage, the surviving partner may not have any standing to contest probate or inherit anything from their loved one's estate.
To avoid these complications, it is crucial for couples in common-law marriages to consider estate planning measures, such as creating a will or establishing a community property trust. By taking proactive steps, common-law spouses can protect their inheritance rights and ensure peace of mind for themselves and their partners.
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Common law marriage and divorce
A common law marriage is a marriage without a formal ceremony or marriage license. Common law marriage has existed for over 150 years in the United States and has its roots in medieval times. While marriage is a legal recognition of a couple's commitment to each other, it is not the only way to show dedication. Simply living together and sharing responsibilities is a strong display of the bond between two people.
In the US, only 15 states and the District of Columbia recognize common-law marriages. These include Colorado, Iowa, Kansas, Oklahoma, Rhode Island, Texas, Utah, Montana, and New Hampshire. Each state has its own requirements, which couples must meet, and these can vary from state to state. For example, in most states, couples must live together (cohabitate) for at least a year to be considered common-law married. In Rhode Island, there are a few more requirements before a union can be considered a common-law marriage.
If a couple is considered married under common law, they have the same rights as any other married couple. This includes the same parental rights and responsibilities, as well as the ability to file joint tax returns. In the case of a common-law spouse's death or disability, their spouse will be automatically entitled to benefits and assets. However, in the event of an accident or injury, a common-law spouse may have to prove the validity of the marriage to claim benefits, inherit property, or make medical decisions.
If a couple wishes to end a common-law marriage, they must go through the same legal divorce proceedings as any other married couple. This includes filing for divorce in court and handling issues of alimony, child custody, and support. It is important to note that there is no such thing as a "common-law divorce". Even if a couple moves to a state that does not recognize common-law marriage, their marriage may still be valid and they may need to get a divorce if they separate. In the case of separation, a couple may have to prove that a common-law marriage existed, and it is advisable to hire an attorney.
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Common law marriage and same-sex couples
Marriage is a civil contract. Historically, there have been two types of marriages: ceremonial and common law. A ceremonial marriage is a marriage performed by a religious or civil authority, whereas a common-law marriage is a marriage by express agreement of the parties by words uttered in the present tense. Common-law marriage can change the marital status of an unmarried couple to a legally married couple without a formal wedding ceremony or a marriage license.
In the United States, only 15 or 16 states and the District of Columbia recognize common law marriages. Each has its own requirements that couples must meet, and they can vary from state to state. While state law may vary on the issue, there are generally four requirements to create a common-law marriage:
- You must live together, although the amount of time required varies by state.
- You both must have the legal right or "capacity to marry," meaning you both must be of legal age, sound mind, and not already married to someone else.
- You must exchange words in the present tense that you wish to establish a marriage with each other.
- You both must hold yourself out to friends and family as being a married couple, like using the same last name, referring to each other in public as "husband" or "wife," or sharing joint bank accounts or credit cards.
After the 2015 Supreme Court case Obergefell v. Hodges, which legalized same-sex marriage across the U.S., same-sex couples could claim common-law marriage. In some places, same-sex couples can establish a common-law marriage, and they have the same legal rights in a common-law marriage as other couples. For example, in Pennsylvania, a same-sex common-law marriage will be recognized if contracted before January 1, 2005, even though Pennsylvania did not recognize same-sex marriages until May 20, 2014. In South Carolina, a court declared a same-sex couple married since 1987, even though South Carolina did not recognize same-sex marriage until November 20, 2014.
Individuals seeking to be recognized as common-law spouses should consult an attorney familiar with the application of this status in the jurisdiction where they live.
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Common law marriage and cohabitation
Common-law marriage traces its roots to old English law and exists only in a small number of states in the US. It is not recognized in the United Kingdom, although couples in Scotland can make limited claims in the event of a separation or death, and those in Northern Ireland have legal protection in certain cases.
In the US, common-law marriage is recognized in only 15 states and the District of Columbia. Each state has its own requirements, but common requirements include:
- Cohabitation: There is no statutory requirement for the length of time a couple needs to live together, but generally, the longer a couple lives together, the stronger their case is for common-law marriage.
- Legal right or "capacity" to marry: Both partners must have the legal capacity to marry, which usually means they must be at least 18 years old and of sound mind, and they cannot already be married to other people.
- Intent: Both partners must intend to be married and behave as a married couple, holding themselves out to friends, family, and the public as being married.
If a couple has a common-law marriage, they are considered legally married and are entitled to the same benefits as other married couples, such as tax breaks and inheritance rights. However, proving a common-law marriage can be complicated, especially if the couple waits for more than two years after separating to take action. In the case of a breakup, a traditional divorce is still required, which can be tricky because it often comes down to one partner's word against the other.
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Frequently asked questions
Common-law marriage is a way for unmarried couples to enjoy the legal and economic benefits of marriage without a formal wedding ceremony or marriage license. Common-law marriage traces its roots to old English law and is currently recognized in only 15 states and the District of Columbia in the US.
The requirements for common-law marriage vary from state to state, but generally include: cohabitation, the legal right to marry, intent to be married, and behaving as a married couple in public. Some common indicators of a common-law marriage include living together, filing joint tax returns, signing leases as spouses, and having children together.
Couples in a common-law marriage are entitled to similar benefits as legally married couples, including tax breaks, inheritance rights, and Social Security benefits. Common-law marriage also provides a way for unmarried couples to legitimize their relationship and pass on property, especially in the event of a separation or death.
Yes, if you are in a common-law marriage and wish to dissolve the relationship, you will need to file for divorce in court, just as you would for a traditional marriage. It is advisable to hire an attorney to help navigate the divorce process and protect your rights.
