Cecily Zamora
Common-law marriage is a real and legal alternative to a formal, licensed marriage. It is a way for couples to enjoy the economic and legal benefits of marriage, such as tax breaks, inheritance rights, and social security, without having to undergo a marriage ceremony. Common-law marriage is not recognized everywhere, and the requirements vary depending on the location. For example, in the United States, only a small number of states recognize common-law marriage, including Colorado, Iowa, Kansas, and Texas. To be considered married by common law, both partners must not be married to anyone else and must intend to be married, holding themselves out as a married couple to friends, family, and the public.
| Characteristics | Values |
|---|---|
| Already married | Cannot be already married |
| Capacity to marry | Both partners must be capable of getting married |
| Intention | Both partners must intend to be married |
| Behave as a married couple | Both partners must hold themselves out to friends, family, and the public as being a married couple |
| Cohabitation | Must be living together in a way that seems to society that the couple is married |
| Time period | Must have cohabited for a "significant" period of time. However, there is no specified time for the common-law marriage to actually take effect. |
| Voluntariness | Must be living together voluntarily |
| Marriageable age | Must be of marriageable age |
| Country/State | Common-law marriage is not recognized in all countries/states |
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What You'll Learn
Common-law marriage requirements
Common-law marriage, also known as marriage without formalities or an informal marriage, is a valid and recognised type of marriage in some places. However, it is not recognised everywhere, and the requirements for what constitutes a common-law marriage differ depending on the location.
United States
Common-law marriage is recognised in only a small number of states in the US. These include Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia.
States that allow common-law marriage can set their own rules for who qualifies. Common requirements include:
- Both partners must be at least 18 years old, of sound mind, and have the legal capacity to marry.
- Both partners must not be already married to other people.
- Both partners must intend to be married and behave as a married couple, holding themselves out to friends, family, and the public as being a married couple.
- 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.
India
In India, the Supreme Court has defined a "relationship in the nature of marriage" as being akin to a common-law marriage. The requirements for this are:
- Both partners must be of marriageable age and qualified to marry.
- Both partners must not be already married.
- Both partners must be living together in a way that seems to society that the couple is married, for a significant period of time.
- Both partners must be living together voluntarily.
Norway
In Norway, couples who live together and have children together are given some marriage-like rights. For example, couples with children can receive an inheritance of up to $34,000 if their partner dies without having written a will.
Kuwait
In Kuwait, common-law marriage has limited recognition in the case of expatriate familial disputes, such as maintenance payments and child support dues. However, this recognition does not extend to couples where one or both parties are Kuwaiti or to homosexual couples.
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Common-law marriage recognition in different states
Common-law marriage, also known as informal marriage, is a marriage that is established without legal formalities such as a marriage license, a religious ceremony, or a civil ceremony. It grants couples all the rights and benefits of marriage, including inheritance rights and other estate planning benefits. However, it is important to note that common-law marriages are not recognized in all jurisdictions, and the requirements to contract a valid common-law marriage differ between jurisdictions.
In the United States, as of 2022, common-law marriages are recognized in a limited number of states, including Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Some other states, such as Utah, South Carolina, and New Hampshire, have limited recognition of common-law marriages, often for specific purposes like inheritance. The requirements for a valid common-law marriage vary by state, but generally include factors such as the capacity to marry, public recognition of the marriage, and the intention to be married.
It is worth noting that the recognition of common-law marriages has been evolving, with some states, such as Alabama and Georgia, previously recognizing them but now only acknowledging marriages entered into before a certain date. The Full Faith and Credit Clause in the United States Constitution, however, prevents states from blocking other states with contradictory laws. This means that if a couple has a valid common-law marriage in one state, their marriage is still recognized if they move to a state that does not ordinarily allow common-law marriages.
Outside of the United States, common-law marriages or partnerships have limited recognition in certain countries. For example, Norway grants some marriage-like rights to cohabiting couples with children, including inheritance rights. In Kuwait, common-law marriages or partnerships are recognized in expatriate familial disputes, but only when the male partner's country of nationality acknowledges such unions. Ireland, on the other hand, does not recognize common-law marriages, but previously had the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, which granted some rights to unmarried cohabitants.
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Common-law marriage and divorce
Common-law marriage, which traces its roots to old English law, is not a nationwide concept. It exists only in a small number of states in the US, such as Colorado, Iowa, Kansas, Rhode Island, and Texas. Outside of the US, common-law marriage has limited recognition in Kuwait in the case of expatriate familial disputes. In Norway, couples who live together and have children are given some marriage-like rights, including inheritance laws.
To be considered a common-law marriage, both partners must intend to be married and behave as a married couple. This includes referring to each other in public as "partner," "spouse," etc., taking the same last name, and changing social media accounts to match. Additionally, both partners must be of marriageable age, not already married, and cohabiting voluntarily for a significant period.
If you are in a common-law marriage and are considering divorce, it is important to understand the local laws governing such marriages. The process of divorcing from a common-law marriage is similar to that of a traditional marriage. However, a key difference is that common-law married couples must first prove they are legally married before they can divorce, as there is often no paper trail for these marriages. This proof can include evidence of cohabitation, shared finances, or public acknowledgment of the relationship.
In some states, there may be a statute of limitations for petitioning for a divorce from a common-law marriage. For example, Texas has a two-year statute of limitations, after which it is as if the couple was never married. Additionally, if common-law married couples do not obtain a formal divorce decree, they may encounter issues such as being unable to legally marry again.
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Common-law marriage and inheritance
Common-law marriage is a type of legal marriage that arises without the formal requirements of a license, witnesses, and an officiated ceremony. It is currently recognized in only a few 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 recognize common-law marriage, a common-law spouse can inherit from a decedent's estate, whether the decedent died with or without a valid will. For example, in Texas, a common-law spouse is entitled to the same rights and privileges as those in a formal or traditional marriage, including community property, homestead rights, exempt property, and family allowance. However, proving a common-law marriage can be challenging and often requires evidence such as a signed declaration of informal marriage, joint tax returns, shared bank accounts, property records, and witness testimony.
On the other hand, in states that do not recognize common-law marriage, the surviving significant other may face difficulties in inheriting their loved one's estate. They may not be entitled to any inheritance unless there is an estate plan in place. This can result in a dire situation for the surviving partner, especially if there are also issues with healthcare and financial decision-making.
It is important to note that the recognition of common-law marriage varies internationally. For example, Norway grants some marriage-like rights to cohabiting couples with children, including inheritance rights. In contrast, Ireland does not recognize common-law marriage, but previously had the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, which provided some rights to unmarried cohabitants.
To summarize, common-law marriage and inheritance rights vary depending on the state or country of residence. While some jurisdictions recognize common-law marriage and afford equal inheritance rights, others do not, which can lead to challenges for surviving partners. Seeking legal advice and understanding the specific requirements and evidence needed to prove a common-law marriage is crucial in navigating these complexities.
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Common-law marriage and tax
Common-law marriage is a form of legal marriage that is available in some jurisdictions. The requirements for a common-law marriage vary by location, but they generally include factors such as being of marriageable age, not already being married, cohabiting for a "significant" period, and holding yourself out as married to friends, family, and the public.
In the United States, common-law marriage is only recognised in a small number of states, including Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, Texas, South Carolina, Utah, and the District of Columbia. If a couple enters into a common-law marriage in a state that recognises it, their marriage will continue to be recognised for tax purposes even if they move to a state that does not recognise common-law marriages.
In terms of tax, a common-law marriage that meets state requirements is just as valid and legally binding as a formalised marriage. This means that common-law married couples are required to file taxes as married, and they are eligible for the same tax breaks as couples with marriage licenses. For example, a common-law wife in a state that recognises such marriages will be considered the taxpayer's spouse for the purpose of filing a joint income tax return. Additionally, under the provisions of section 151(b) of the Internal Revenue Code of 1954, a taxpayer in a common-law marriage is entitled to an exemption of $600 for his common-law wife when making a separate income tax return, provided that she has no gross income and is not the dependent of another taxpayer.
However, it is important to note that there is no such thing as common-law divorce. If a common-law married couple separates, they will need to get a traditional divorce, which can be tricky to navigate as it often comes down to one partner's word against the other. Additionally, when filing a joint tax return as a common-law married couple, your tax liability becomes "joint and several", meaning that each partner is responsible for the taxes in full.
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Frequently asked questions
A common-law marriage is a marriage that is considered valid by both partners, but is not formally recorded with a state or religious registry, nor celebrated in a formal civil or religious service. Common-law marriages are only recognised in certain states.
No, to enter into a common-law marriage, both partners must not be already married, informally or formally, to anyone else.
Common-law marriages are legally binding and are afforded the same rights as a formal marriage. This includes entitlements to inheritance and social security benefits.
