Cameron Miranda
The recognition of common-law marriages varies across different states and countries. In the US, only nine states and Washington, D.C., legally recognise new common-law marriages, while over a dozen states will acknowledge those established before the practice was abolished. In 2015, the US Supreme Court ruled in Obergefell v. Hodges that same-sex couples have the constitutional right to civil marriage on the same terms and conditions as opposite-sex couples. This decision has been applied retroactively to common-law marriages established before 2015, and same-sex couples may be eligible for Social Security benefits based on their spouse's earning records. In Canada, same-sex marriage is legal across the country, and in British Columbia, the Family Law Act provides gay and lesbian marriages and common-law relationships the same rights as heterosexual marriages and common-law relationships.
| Characteristics | Values |
|---|---|
| Common law marriages recognized by U.S. states | 9 states and Washington D.C. |
| Common law marriages recognized by Canadian provinces | Varies, e.g. British Columbia |
| Requirements for common law marriage | Exchange of words in the present tense expressing the wish to be married; acting as a married couple in public |
| Benefits of common law marriage | Social Security, spousal support, child support, asset sharing, inheritance |
| Retroactive common law marriage | Possible, as per Obergefell v. Hodges |
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What You'll Learn
Common law marriage requirements for gay couples
In the United States, same-sex couples have the constitutional right to civil marriage on the same terms and conditions as opposite-sex couples. This includes common-law marriages.
As of 2022, only nine states (plus Washington, D.C.) legally permit couples to establish new common-law marriages. However, more than a dozen other states will recognize common-law marriages if they were established before the practice was abolished in that state.
To be recognized as a common-law marriage, a couple must meet the requirements for a common-law marriage in that state. While the precise requirements to prove a common-law marriage may vary from state to state, generally, evidence and testimony are taken regarding the exchange of words in the present tense that the couple wished to establish a marriage with each other and other evidence that the couple held themselves out or acted as a married couple publicly. For example, in Colorado, the Supreme Court explained that it could have been unrealistic or dangerous for some gay couples to hold themselves out in public as married. Therefore, other evidence could include when the couple did some combination of the following:
- Sharing assets and liabilities accumulated during the relationship
- Sharing the increase in value of any assets acquired prior to the relationship
- Spousal support (alimony) and child support
- Filing joint tax returns
- Listing their partners as their "spouse" on official records
Same-sex couples who were in common-law marriages before same-sex marriage was legal may also be recognized retroactively. Many courts have held that the Obergefell decision must be applied retroactively to common-law marriages that were established before the Supreme Court's 2015 decision.
In Canada, same-sex marriage is also legal across the country, but each province regulates its own laws for common-law couples and property rights. In British Columbia, the Family Law Act creates property rights that are the same for married couples and common-law spouses. As a result, the laws in British Columbia provide gay and lesbian marriages and common-law relationships the same rights as heterosexual marriages and common-law relationships. Unmarried spouses or "common-law" couples, regardless of sexual orientation, must meet the basic requirement of living in a "marriage-like relationship" for two years before the legal rights under the Family Law Act will apply.
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Social Security benefits for gay couples in common law marriages
In the United States, gay couples in common-law marriages may be eligible for Social Security benefits based on their spouse's earning records, including survivor benefits, disability benefits, and retirement benefits. This is on the condition that they can prove they had a valid, legally recognized common-law marriage. As of 2022, only nine states (plus Washington, D.C.) legally permit couples to establish new common-law marriages, but over a dozen other states will recognize common-law marriages formed before the practice was abolished in their state.
The U.S. Supreme Court's 2015 decision in Obergefell v. Hodges held that same-sex couples have a constitutional right to "civil marriage on the same terms and conditions as opposite-sex couples." This includes the right to enter into a common-law marriage, and courts have applied this decision retroactively to common-law marriages established before the 2015 ruling. As a result, same-sex couples in eligible states can access Social Security benefits by providing the same evidence of a common-law marriage as heterosexual couples. This typically includes evidence of an exchange of words in the present tense expressing the intention to be married and other proof that the couple acted as a married couple publicly.
It is important to note that prolonged cohabitation alone does not constitute a common-law marriage. Additionally, the Social Security Administration will only recognize a same-sex common-law marriage if it was established in a state that recognized common-law marriages in general. This has posed challenges for gay couples who entered into committed relationships when same-sex marriage was illegal, as they may struggle to provide traditional evidence of a common-law marriage, such as filing joint tax returns or listing their partner as their "spouse" on official records.
In Canada, the situation differs by province. In British Columbia, for example, the Family Law Act provides gay and lesbian marriages and common-law relationships with the same rights as heterosexual marriages and common-law relationships. Unmarried spouses or "common-law" couples, regardless of sexual orientation, must live in a "marriage-like relationship" for two years before these legal rights apply. This includes entitlements to property, children, and support after separation, as well as spousal support (alimony) and child support.
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Common law marriage recognition in different states
Common-law marriage, sometimes called informal marriage, is a marriage established without legal formalities like a marriage license, ceremony, or certificate. In the United States, common-law marriages are still recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia, while Utah, South Carolina, and New Hampshire have limited recognition.
The requirements to contract a valid common-law marriage differ between jurisdictions. For example, in British Columbia, the Family Law Act provides the same rights to married couples and common-law spouses regardless of sexual orientation. These rights include property rights, entitlements to children, and support after separation.
In the U.S., same-sex couples have a constitutional right to "civil marriage on the same terms and conditions as opposite-sex couples." This means that state courts have the power to declare same-sex relationships as common-law marriages if they would accord the same status to a heterosexual union. Many courts have held that this decision must be applied retroactively to common-law marriages that were established before the Supreme Court's 2015 decision, allowing same-sex couples to claim Social Security benefits based on their spouse's earning records.
To determine whether a common-law marriage exists, a court may evaluate evidence presented by the party or parties seeking to have the marriage recognized. This may include testimony regarding the exchange of words in the present tense expressing the intention to be married and other evidence that the couple acted as a married couple publicly. Prolonged cohabitation alone is not indicative of a common-law marriage, and the precise requirements may vary from state to state.
While the recognition of common-law marriages is becoming less common in the U.S., with most states abolishing the practice through laws or court decisions, some states continue to recognize these marriages if they were established before a certain date or for a specific purpose.
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Retroactive common law marriage for gay couples
In the United States, same-sex couples have the constitutional right to civil marriage, including common-law marriage, on the same terms as opposite-sex couples. This was established in the 2015 Obergefell v. Hodges case, where the U.S. Supreme Court ruled that same-sex couples must be allowed to marry on the same terms and conditions as different-sex couples, including the recognition of valid common-law marriages.
As a result, gay couples in common-law marriages may be eligible for Social Security benefits based on their spouse's earning records, just like heterosexual couples. These benefits include survivor benefits, disability benefits, and retirement benefits. However, to access these benefits, couples must provide evidence of a valid, legally recognized common-law marriage.
While the specific requirements to prove a common-law marriage may vary by state, generally, courts will evaluate evidence and testimony regarding the couple's exchange of words in the present tense expressing their intention to be married and their subsequent public presentation as a married couple. Prolonged cohabitation alone is not sufficient to establish a common-law marriage.
In addition to Social Security benefits, proving a common-law marriage can provide other important rights and benefits to same-sex spouses. These include the equitable distribution of marital property in a divorce, the ability to amend a deceased partner's death certificate to include the surviving spouse's name, and intestate succession (inheritance without a Will) from a deceased partner.
It's worth noting that as of 2022, only nine states (plus Washington, D.C.) legally permit new common-law marriages. However, more than a dozen other states will recognize common-law marriages established before the practice was abolished in their state. This retroactive recognition of common-law marriages also applies to same-sex couples, as any state laws restricting common-law marriage to heterosexual couples were deemed unconstitutional after the Obergefell decision.
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Common law marriage and divorce for gay couples
Common-Law Marriage and Divorce for Gay Couples
In the United States, same-sex couples have a constitutional right to civil marriage on the same terms and conditions as opposite-sex couples. This includes common-law marriages, which are marriages by express agreement of the parties in the present tense, without a marriage license or ceremony. As of 2022, only nine states (plus Washington, D.C.) legally permit couples to establish new common-law marriages, but over a dozen other states will recognize common-law marriages established before the practice was abolished in that state.
To be recognized as a common-law marriage, couples must provide evidence of their agreement to be married and that they acted as a married couple publicly. This may include testimony and other evidence, such as the exchange of words in the present tense expressing their wish to be married. Prolonged cohabitation alone is generally not considered sufficient evidence of a common-law marriage.
Once a common-law marriage is established, it is considered a marriage for all purposes, with the same rights, benefits, and responsibilities as a legal marriage. This includes the ability to divorce, which same-sex couples can now obtain in any U.S. state following the Supreme Court's decision in Obergefell v. Hodges in 2015. Before this decision, same-sex couples could generally only divorce in jurisdictions that recognized their marriages.
In Canada, same-sex marriage is also legal across all provinces, but each province regulates its own laws for common-law couples and property rights. In British Columbia, for example, the Family Law Act provides gay and lesbian marriages and common-law relationships the same rights as heterosexual marriages and common-law relationships. Unmarried spouses or "common-law" couples, regardless of sexual orientation, must live in a "marriage-like relationship" for two years before these legal rights apply.
Same-sex common-law spouses in both the U.S. and Canada may be eligible for Social Security or alimony benefits based on their spouse's earning records, including survivor benefits, disability benefits, and retirement benefits. However, the length of the marriage may be a factor in accessing these benefits, and same-sex couples who entered into committed relationships before the legalization of same-sex marriage may face challenges in providing traditional evidence of their common-law marriage.
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Frequently asked questions
A common-law marriage is a marriage by express agreement of the parties in the present tense, for the purpose of establishing a marriage where the couple subsequently holds themselves out as married. Common-law marriages are also known as informal marriages.
Yes, common-law marriages are now available to same-sex couples. In 2015, the U.S. Supreme Court held in Obergefell v. Hodges that same-sex couples have a constitutional right to "civil marriage on the same terms and conditions as opposite-sex couples." This means that same-sex couples are entitled to have their valid common-law marriages recognized.
Common-law marriages are marriages for all purposes, so they come with all the same rights, benefits, and responsibilities as a legal marriage. This includes spousal support, child support, and the equitable distribution of property in a divorce. Same-sex couples in common-law marriages may also be eligible for Social Security benefits based on their spouse's earning records.
