Kara Sears
The concept of common-law marriage is a marriage without a ceremony, where a couple has the same rights and obligations as a married couple. In the context of same-sex couples, the legal recognition of their common-law marriages has been a subject of debate and court cases. While some states, like Texas, have recognized same-sex common-law marriages, others have not. However, in 2015, the U.S. Supreme Court held in Obergefell v. Hodges that same-sex couples have the constitutional right to civil marriage on equal terms as opposite-sex couples. This decision has been applied retroactively, meaning that even if a couple lived in a state that did not recognize their common-law marriage at the time, their marriage may now be recognized. This has provided same-sex couples with the opportunity to seek divorce, spousal support, and property division rights, among other benefits.
| Characteristics | Values |
|---|---|
| Recognition of common-law marriage for same-sex couples | Allowed by the U.S. Supreme Court decision in Obergefell v. Hodges; State courts can declare same-sex relationships as common-law marriages if they would do the same for heterosexual couples |
| Evidence of common-law marriage | Same-sex couples may face challenges due to previous restrictions on their marital rights, e.g., inability to list each other as spouses on medical documents or file taxes jointly |
| Social Security benefits | Same-sex couples must provide evidence of a common-law marriage, just like opposite-sex couples, to be eligible for Social Security benefits based on spousal earnings |
| Retroactive recognition | Courts have held that the Obergefell decision applies retroactively to common-law marriages established before the Supreme Court's 2015 decision, allowing recognition of same-sex common-law marriages prior to the legalization of same-sex marriage |
| Legal implications | Common-law marriage recognition impacts property division, spousal support, child support, divorce, and other related matters, providing the same legal rights as any other marriage |
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What You'll Learn
Retroactive recognition of common-law same-sex marriages
The recognition of common-law marriages varies depending on the state and the specific circumstances of the couple in question. In the United States, same-sex couples have only been permitted to marry since the Supreme Court's Obergefell decision in 2015. This ruling declared that same-sex couples must be allowed to marry on the same terms as heterosexual couples, whether through ceremonial or common-law marriages.
Prior to this ruling, some same-sex couples lived as married couples in states that would have recognized their unions as common-law marriages if they had been heterosexual. As a result of the Obergefell decision, many courts have held that this ruling must be applied retroactively to these common-law marriages, as any state laws restricting this practice to heterosexual couples were deemed unconstitutional.
The recognition of common-law marriages can have significant implications for same-sex couples, particularly those who have been together for a long time but were unable to marry until recently due to discriminatory laws. Proving a common-law marriage status can be crucial for accessing certain benefits, such as Social Security or alimony, that require a minimum duration of marriage. It can also impact divorce proceedings, custody arrangements, and inheritance rights for both spouses and their children.
However, proving common-law marriage can be challenging for same-sex couples, as they may not have the same traditional evidence as heterosexual couples, such as joint tax returns or official records listing their partner as a spouse. Nevertheless, couples can provide other forms of evidence, such as testimony and documentation showing their commitment and intention to be married, to establish their marital relationship.
In conclusion, the retroactive recognition of common-law same-sex marriages has provided same-sex couples with a pathway to rights and benefits previously denied to them. While there are still complexities and uncertainties surrounding this issue, the Obergefell decision has been a pivotal step towards marriage equality for same-sex couples in the United States.
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Division of shared property and spousal support
In the United States, the Obergefell v. Hodges decision by the Supreme Court mandates that same-sex couples be allowed to marry—whether common law or ceremonial—on the same terms as heterosexual couples. This means that state courts can declare a same-sex relationship a common-law marriage if they would do the same for a heterosexual couple.
In the context of division of shared property and spousal support, same-sex common-law couples have the same rights and obligations as opposite-sex common-law couples under provincial family law. However, it is important to note that common-law partners do not have a statutory right to divide property in a breakup. Instead, they must ask the courts to divide the property in an equitable manner.
In Canada, common-law relationships (conjoints de fait in Quebec) are cohabitation relationships that grant legal rights and obligations to couples who are not formally married. These rights and obligations vary across provinces, as they are governed by provincial law. To be recognised as a common-law relationship, couples typically must have cohabited for a specified period, usually two to three years, or have a child together.
In terms of spousal support, common-law couples must prove that they have been in a conjugal relationship for at least three years or have a child together to claim spousal support. This is in contrast to married spouses, who have a well-established right to claim spousal support upon separation.
When it comes to the division of property, common-law couples differ from married spouses, as they lack certain automatic legal rights that married couples receive by default. If there is no agreement between the partners about property during or after the relationship, the law specifies equal sharing of all property acquired during the relationship, as well as any changes in the value of property brought into the relationship.
In the context of same-sex couples who lived together before same-sex marriage was legalised, property division can be unfair. For example, a judge may not award anything to a spouse whose partner bought a camper with a tax refund before they were legally married. However, some judges may recognise the unfairness of this situation and split the value of the camper between the spouses.
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Social Security benefits
The Social Security Administration (SSA) recognizes the marriages of same-sex couples in all states, as well as some non-marital legal relationships, such as common-law marriages, civil unions, and domestic partnerships. This recognition is important for determining eligibility for Social Security benefits, including retirement, survivors, Medicare, SSD, and SSI benefits.
Same-sex couples who were previously unable to marry due to discriminatory laws can now receive retroactive Social Security survivors' benefits. In 2021, the SSA expanded benefit eligibility for survivors of such couples. A surviving spouse can generally claim benefits on their late partner's earnings record if they are at least 60 years old and were legally married for at least nine months before their partner's death. Same-sex partners whose relationships predate the legalization of same-sex marriage may qualify for survivor benefits if they meet certain criteria, such as demonstrating that they would have been married at the time of their partner's death if not for state laws prohibiting same-sex marriage.
To establish a common-law marriage, couples must meet certain requirements, such as living in a state that recognizes common-law marriages, having the legal capacity to marry, and demonstrating the intention to be married through their actions, such as living together, sharing finances, and holding themselves out as a married couple to their community. The SSA will only recognize a common-law marriage if it was established in a state that recognized such marriages.
It is important to note that eligibility for SSDI benefits, a type of Social Security benefit, requires the individual to be unable to work at any job in the national economy. The SSA uses a five-step review process to determine eligibility for these benefits.
If you are in a same-sex marriage or a non-marital legal relationship and think you may qualify for Social Security benefits, it is recommended to apply even if you are unsure of your eligibility. Applying will protect you from losing any potential benefits by preserving your filing date.
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Intestate succession (inheritance without a will)
Intestate succession, or inheritance without a will, is a legal process that determines the distribution of a deceased person's assets when they die without leaving a valid will. This process is governed by state laws, and the specific rules may vary depending on the state where the deceased person resided.
In the context of same-sex partners, intestate succession can be more complex due to historical legal restrictions on same-sex marriages. While the Obergefell v. Hodges ruling in 2015 legalised same-sex marriage across the United States, some same-sex couples may still face challenges when it comes to inheritance, especially if they were unable to enter into a ceremonial marriage before this ruling.
In general, intestate succession laws prioritise spouses, registered domestic partners, and blood relatives as heirs. Unmarried partners, including those in common-law relationships, may have no legal standing to inherit their deceased partner's property through intestate succession in certain states. This is further complicated by the fact that some states do not recognise same-sex marriages, even if they were legally performed in another state.
Same-sex couples who were unable to legally marry before the Obergefell decision may still be able to establish a common-law marriage, depending on the state. This can provide a pathway to rights and benefits, including inheritance. However, proving a common-law marriage can be challenging, especially if one partner has passed away. Evidence such as joint tax returns or official records listing the partner as a spouse may not be available for same-sex couples who established their relationship when same-sex marriage was illegal.
To avoid the complications of intestate succession, it is crucial for same-sex couples to consult with a lawyer and engage in estate planning. This may include writing a will, setting up a living trust, establishing joint ownership, and granting power of attorney for healthcare and financial decisions. By taking these proactive steps, same-sex couples can ensure that their wishes are respected and that their partner is protected in the event of their death.
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Custody and child support
Same-sex couples in common-law marriages or relationships face unique challenges when it comes to child custody and support, especially if they are unmarried or live in a state that does not recognise their union. The laws regarding same-sex marriage and family relationships are constantly evolving, making it crucial for couples to understand their rights and seek legal counsel when necessary.
Custody
When it comes to child custody, the best interests of the child are typically prioritised by state courts. This often includes recognising the benefits of the child having a relationship with both parents. In the case of married couples, both individuals are presumed to be the legal parents of the child and thus have equal rights to custody and visitation. However, for unmarried couples, the outcome of custody disputes depends on the legal parental status of the individuals involved.
For unmarried couples, the biological parent typically has presumptive custody rights, and the non-biological parent may need to adopt the child or obtain a parentage judgment to establish their own custody and visitation rights. This process can be complicated and may require legal action, such as "second-parent adoption", to ensure the non-biological parent's rights are protected. In some cases, a non-biological parent may be considered a “third party” and may not have standing to sue for visitation or custody.
Same-sex couples can also create co-parenting or parenting agreements to outline their intentions regarding custody, visitation, and financial responsibilities. These agreements can be particularly important for unmarried couples, as they establish both partners' commitment to co-parenting and can address financial issues related to child support. However, even with a written agreement, the outcome of custody disputes cannot be guaranteed.
Child Support
In most cases, the parent who does not have physical custody of the child is expected to provide child support to the custodial parent. However, if one parent is not the biological or legal parent, they may not be required to pay child support unless they have taken steps to establish their parental rights, such as through adoption or a parentage judgment.
Impact of Marriage Recognition
The recognition of same-sex marriage has had a significant impact on the rights of same-sex couples regarding child custody and support. After the Obergefell v. Hodges decision, all states are required to recognise the right of same-sex couples to marry. As a result, state courts view each parent in a married same-sex couple as having equal visitation and custody rights to any children born during the marriage.
Additionally, the Obergefell decision has been applied retroactively to common-law marriages established before the Supreme Court's ruling in 2015. This means that any state laws restricting common-law marriage to heterosexual couples were deemed unconstitutional, and same-sex couples may be able to retroactively establish their common-law marriage status to access certain benefits.
State-Specific Laws
It is important to note that laws regarding child custody and support for same-sex couples can vary by state. For example, in New Jersey, the law recognises the importance of both legal and de facto parentage, allowing for the concept of a "psychological parent" who may have legal rights and responsibilities even without a biological or adoptive relationship with the child. Consulting with a local family law attorney can help same-sex couples understand their specific rights and obligations regarding custody and child support.
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Frequently asked questions
Common-law marriage is a legally recognised marriage that is validated through customary law and cohabitation, rather than a wedding ceremony.
Yes, same-sex partners can enter into common-law marriages. However, this is a recent development, and same-sex couples have faced challenges in proving their common-law marriages due to the previous illegality of same-sex marriage.
Same-sex couples may face difficulties in providing traditional evidence of common-law marriage, such as joint tax returns or listing each other as spouses on official records. However, courts are increasingly recognising alternative forms of evidence, such as listing each other as domestic partners on insurance forms or presenting themselves as partners to their community.
A common-law marriage provides the same legal rights as a ceremonial marriage, including matters of property division, spousal support, child support, and divorce. Same-sex couples may also be eligible for Social Security benefits based on their spouse's earnings record if their marriage meets certain duration requirements.
Yes, there may be additional complexities in same-sex common-law marriages, particularly regarding children's issues in divorce. Each spouse must demonstrate their legal parentage of the child, which can be established through birth or legal adoption during the marriage.
