Gavin Howe
The concept of a “common-law marriage” refers to a marriage that arises from an agreement between two parties to consider themselves married, followed by cohabitation, without a formal ceremony or legal registration. While the term is commonly used to refer to unmarried cohabiting couples, it does not confer the same legal rights and obligations as a legally recognized marriage. The rights of common-law partners vary depending on the jurisdiction, with some states recognizing common-law marriages as legally valid and affording them the same rights as formally married couples. In other regions, such as England, Wales, and Northern Ireland, common-law marriage has no legal grounding, and cohabiting partners have fewer rights compared to married spouses in areas such as property ownership, finances, and inheritance. It is important to understand the legal implications of common-law partnerships and seek advice from family law professionals to clarify rights and protections in specific situations.
Characteristics of common-law marriage
| Characteristics | Values |
|---|---|
| Legal recognition | Not legally recognised in England, Wales, Northern Ireland, and some other countries/states. Recognised in some US states and respected by other states with contradictory laws. |
| Requirements | Cohabitation, intent to be married, holding out as married (changing names, filing joint tax returns, joint bank accounts, etc.), and cohabitation duration (significant period, but no specified time). |
| Rights | Same rights as a married couple in some US states, including inheritance rights, alimony, allowances, shelter, protections from abuse, child custody, etc. |
| Financial matters | No duty to financially provide for one another. No right to claim against the other's assets, including pension assets. Joint accounts are split, and sole accounts belong to the individual. |
| Property rights | No automatic right to share property on separation if it is in one partner's name. However, a beneficial interest may be proven through financial contributions. |
| Children | Decisions about children's schooling, residence, holidays, medical treatment, and name changes are made by those with parental responsibility. |
| Domestic violence | Protections under the Domestic Violence Act of 2005 and Section 125 of the Criminal Code in some jurisdictions. |
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What You'll Learn
Common-law marriage recognition in the US
The term "common-law marriage" is often used colloquially to refer to cohabiting couples, regardless of their legal rights. Common-law marriage, also known as sui juris marriage, informal marriage, marriage by habit and repute, or marriage in fact, is a form of irregular marriage that only a handful of states in the US recognize. These include Alabama (abolished effective January 1, 2017, but still recognized if contracted before this date), Florida (before January 1, 1968), Georgia (before January 1, 1997), Indiana (before January 1, 1958), Ohio (before October 10, 1991), and Pennsylvania (before January 1, 2005).
The status of common-law marriage in Utah is unclear. While government websites claim it does not exist, other legal websites state that "non-matrimonial relationships" may be recognized as marriage within one year of the relationship ending. Utah will only recognize such a relationship if it has been validated by a court or administrative order.
The Supreme Court, in People v. Lucero, refined the test for proving a common-law marriage, holding that it may be established by the mutual consent or agreement of the couple to enter into a legal and social institution of marriage, followed by conduct manifesting that mutual agreement. The core inquiry is whether the parties intended to enter a marital relationship, sharing a life as spouses in a committed, intimate relationship of mutual support and obligation.
While some states have abolished common-law marriage, they may still recognize such marriages if they began before a certain date or for a specific purpose. For example, California does not recognize common-law marriages contracted within the state, but it does recognize those validly contracted in another jurisdiction.
It is important to note that, legally, there is no recognition of a "common-law partner/spouse." Couples who live together unmarried are considered "cohabitants" or "cohabitees," and their legal rights depend on their ability to reach an amicable agreement regarding finances, property interests, and arrangements for any children.
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Common-law marriage in England and Wales
The term "common-law marriage" has been used in England and Wales to refer to unmarried, cohabiting heterosexual couples. However, this is simply a social term. Legally, there is no recognition of a "common-law partner/spouse", and cohabiting couples are not awarded any special legal status. In other words, cohabiting does not create any automatic legal rights, regardless of the length of the relationship.
The original concept of a "common-law marriage" is one considered valid by both partners, but not formally recorded with a state or religious registry, nor celebrated in a formal civil or religious service. In effect, the act of the couple representing themselves to others as being married and organizing their relationship as if they were married, means they are married.
English legal texts initially used the term to refer exclusively to American common-law marriages. It was only in the 1960s that the term "common-law marriage" began to be used in its contemporary sense to denote unmarried, cohabiting heterosexual relationships. By the 1970s and 1980s, the term began to lose its negative connotations.
In England and Wales, unmarried partners are recognised for certain purposes in legislation, such as means-tested benefits. For example, the Jobseekers Act 1995 defines an "unmarried couple" as a man and woman who are not married but who live together as husband and wife. However, in many areas of the law, cohabitants enjoy no special rights. When a cohabiting relationship ends, ownership of assets is decided by property law, and courts do not have the discretion to reallocate assets as they would in a divorce.
Cohabiting couples can take steps to protect themselves and their partners, such as drawing up a cohabitation agreement or declaration of trust. These legal documents can outline the terms of asset ownership and act as evidence of an agreement. In the event of a separation, alternative dispute resolution methods like mediation can assist in reaching an agreement.
It is worth noting that, historically, common-law marriage did exist in England. In medieval times, a man and a woman simply needed to say they took each other as husband and wife to be considered married. This changed under the influence of Pope Innocent III, who required marriages to take place in front of a priest. England abolished clandestine or common-law marriages in the Marriage Act of 1753, which required marriages to be performed by a priest of the Church of England.
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Inheritance rights
In Texas, for example, a common-law spouse has the same rights as a formally married spouse, including community property rights, homestead rights, and exempt property rights. This means that upon the death of one spouse, the surviving spouse retains their 50% interest in community property, has the right to live in the homestead for the rest of their life, and can claim certain personal property exempt from creditors' claims. To establish a common-law marriage in Texas, the couple must agree to be married, live together as husband and wife, and hold themselves out to others as married. Evidence of a common-law marriage may include a signed declaration of informal marriage, joint tax returns, joint property records, insurance policies listing each other as spouses, and employer records.
In contrast, in Ontario, Canada, the rights and entitlements of a surviving common-law spouse are not the same as those of a legally married spouse. While a common-law spouse may have a claim for support or sue for unjust enrichment, they do not have the same inheritance rights as a legally married spouse. Similarly, in British Columbia, Manitoba, Saskatchewan, and the Northwest Territories, common-law spouses are only considered spouses with inheritance rights if they meet specific criteria, such as living together for a certain period.
In English law, a surviving cohabitee may be able to make a claim from the deceased's estate under the Inheritance (Provision for Family and Dependants) Act 1975, but litigation can be stressful and expensive. Without a valid will, the estate will be distributed according to intestate succession, which do not provide for the survivor of a cohabiting couple. Instead, the estate will go to any surviving children or the deceased's parents or siblings.
To protect a common-law partner's inheritance rights, it is essential to have a valid will in place that names them as beneficiaries. This allows individuals to choose how their assets will be distributed upon their death and ensures that their loved ones receive their intended inheritance.
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Property rights
The term "common-law wife" refers to a couple who lives together as if they are married, but without legally registering their relationship. While the term is commonly used, there is no legal recognition of a "common-law partner" in most jurisdictions. This means that common-law wives do not have the same rights as legally married spouses, including property rights.
In terms of property rights, if a house is in the sole name of one partner, the other partner does not automatically have a right to share in the property upon separation. However, they may be able to prove a beneficial interest in the property if they can demonstrate that it was intended for them to share the equity. This could be done by showing financial contributions to the property, such as paying the deposit or contributing to the mortgage or renovations. In this case, a court may decide on a suitable settlement proposal.
Couples who are not married but cohabiting are generally treated as unrelated individuals by the law. This means that they cannot claim maintenance or financial support from their ex-partner after a breakup, regardless of the length of their relationship or any personal and financial sacrifices made.
However, there are ways for cohabiting couples to protect their property rights. One way is to create a legal document called a cohabitation agreement or a living together agreement, which outlines the rights and obligations of each partner. This can include a 'declaration of trust', which specifies how they share their property. Another way is to add their partner as a joint owner of the property through a process called 'transferring ownership'. This can be done by becoming 'tenants in common' or 'joint tenants'. Tenants in common can own differing shares in the property, while joint tenants hold equal rights to the whole property. In the case of joint tenancy, the property automatically passes to the other owner if one partner dies, and they cannot pass on their ownership in a will.
It is important to note that the recognition of common-law marriage and the associated rights vary by jurisdiction. For example, while Canada does not recognize common-law marriage, it does grant legal rights and obligations to informal cohabitation relationships. Similarly, while Ireland does not recognize common-law marriage, the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 provided some rights to unmarried cohabitants. In Northern Ireland, under the Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979, a cohabitee may be able to apply for provision from the estate of their deceased partner if they lived together for two years prior to their death and were dependent on them.
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Domestic violence rights
The term "common-law marriage" is used to refer to unmarried, cohabiting heterosexual couples. However, this is a social term, and in law, it does not confer the rights and obligations that married couples or civil partners have. In England, Wales, and Northern Ireland, there is little to no legal grounding for the concept of a common-law marriage. While unmarried partners are recognised for certain purposes in legislation, such as means-tested benefits, they are not considered "common-law spouses" and do not have the same legal rights as a married couple.
In the case of domestic violence, this means that common-law wives do not have the same rights and protections as married women. However, there are still avenues for legal recourse and support. The Violence Against Women Act (VAWA) of 1994 makes it a crime for an intimate partner to use or threaten to use physical force. The VAWA also provides for the implementation of domestic violence units and training for law enforcement on addressing domestic violence. It sets a framework for restraining orders and addresses the unique vulnerabilities of immigrants who may face threats due to their lack of legal status.
Additionally, individuals experiencing domestic abuse can pursue civil and criminal actions against their abusers, including claims of assault, battery, and aggravated assault. They can also seek support from hotlines and organisations such as the National Coalition Against Domestic Violence and the National Domestic Violence Hotline, which provide essential tools and support to survivors.
It is important to note that domestic abuse can take many forms, including physical, sexual, emotional, economic, and psychological abuse, and it can occur in any relationship, regardless of gender or sexual orientation. If you or someone you know is experiencing domestic violence, it is crucial to seek help and support as soon as possible.
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Frequently asked questions
A common-law wife is a term used to refer to an unmarried woman in a cohabiting heterosexual couple.
No, common-law wives do not have the same rights as married women. In England, Wales, and Northern Ireland, common-law marriage is not recognised legally. However, in some states in the US, common-law marriages are recognised and confer the same rights as a formal marriage.
In the UK, unmarried partners are recognised for certain purposes in legislation, such as means-tested benefits. In the event of a cohabiting relationship ending, ownership of assets is decided by property law, and courts cannot reallocate assets as they would in a divorce.
In the US, the rights of a common-law wife depend on the state. In states that recognise common-law marriage, couples are afforded the same rights as a married couple. These rights include inheritance rights, alimony, and child custody.
Yes, same-sex couples can be considered common-law married in the US. States that do not recognise common-law marriage are still required to recognise such marriages from other states.
