Cameron Miranda
Marriage is a civil contract that can be ceremonial or based on common law. A common-law marriage is a marriage by express agreement of the parties by words uttered in the present tense for the purpose of establishing a marriage where the couple subsequently holds themselves out as married. 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. Many states in the United States no longer recognize common-law marriages, but some states did that as recently as 2019. However, all states recognize legal marriages created in other states. In 2015, the U.S. Supreme Court held 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.
| Characteristics | Values |
|---|---|
| Number of states recognizing common law marriages | 16 (as of 2019) |
| Number of states that legally permit couples to establish new common law marriages | 9 (plus Washington, D.C.) (as of 2022) |
| Number of states that will recognize common law marriages if established before the practice was abolished in that state | More than a dozen |
| Retroactive application of Obergefell v. Hodges | Recognized by some states |
| Requirements to prove a common law marriage | Exchange of words in the present tense expressing the wish to establish a marriage, and other evidence that the couple held themselves out or acted as a married couple publicly |
| Prolonged cohabitation as a requirement | No |
| Recognition of common law marriages in other states | Yes, all states recognize legal marriages created in other states |
| Common law marriage in Texas | Recognized |
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What You'll Learn
Common law marriage requirements
In the United States, common-law marriage has existed since colonial times when America was a colony of England. While the Clandestine Marriages Act of 1753 ended common-law marriages in England and Wales, it did not apply to the American colonies, and common-law marriage survived in colonial America and is still recognised in some states today.
Common-law marriage, also known as marriage without formalities or informal marriage, is a valid and legal way for a couple to marry without a formal wedding ceremony, marriage license, or marriage certificate. Common-law marriage is recognised in seven states and the District of Columbia. These states can create their own rules for who qualifies for common-law marriage, but there are some common requirements.
Firstly, both partners must have the legal right or "capacity" to marry. This usually means they must be at least 18 years old, of sound mind, and not already married to other people. Secondly, both partners must intend to be married and hold themselves out to friends, family, and the public as being a married couple. This can be demonstrated through evidence of exchanging words in the present tense expressing their wish to establish a marriage with each other. Importantly, prolonged cohabitation alone does not indicate a common-law marriage, although the amount of time a couple lives together can strengthen their case.
In states where common-law marriage was abolished before the legal recognition of same-sex marriage, courts have the power to declare same-sex relationships as common-law marriages if they would accord the same status to a heterosexual union. For example, in Pennsylvania, a same-sex common-law marriage contracted before January 1, 2005, is recognised even though same-sex marriages were not legally recognised in the state until 2014. In Texas, same-sex common-law marriages are also recognised, and couples may use the earliest date at which they satisfied all the requirements of an informal marriage as their legal marriage date.
Individuals seeking to be recognised as common-law spouses should consult an attorney familiar with the application of this status in their jurisdiction, as requirements may vary.
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Retroactive recognition
In the United States, same-sex couples can enter into a common-law marriage. Common-law marriage, also known as marriage without formalities or informal marriage, is a valid and legal way for a couple to marry in certain states.
In Pennsylvania, for example, a same-sex common-law marriage will be recognised if contracted before January 1, 2005, even though the state did not recognise same-sex marriages until May 20, 2014. Similarly, in South Carolina, a court declared a same-sex couple married since 1987, despite South Carolina only recognising same-sex marriage from November 20, 2014.
To prove a common-law marriage, couples must provide evidence and testimony regarding the exchange of words in the present tense, expressing their wish to establish a marriage. Other evidence may include publicly holding themselves out as a married couple, such as using the same last name, referring to each other as "husband" or "wife", sharing joint bank accounts, or owning property together.
It is important to note that the requirements to prove a common-law marriage may vary from state to state, and individuals seeking recognition should consult an attorney familiar with the laws in their jurisdiction.
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Social security benefits
In 2015, the US Supreme Court's decision in Obergefell v. Hodges legalised same-sex marriage and courts have since held that this applies to common-law marriages. This means that same-sex couples are entitled to have their valid common-law marriages recognised. However, it is important to note that as of 2022, only nine states (plus Washington, D.C.) legally permit couples to establish new common-law marriages, and some states have abolished the practice entirely.
To be eligible for social security benefits based on a spouse's earnings record, a marriage must generally have lasted a certain amount of time (usually nine months to a year). This is true for both same-sex and opposite-sex couples in common-law marriages. To prove a common-law marriage, couples must provide evidence such as statements affirming the marriage and demonstrating that they held themselves out as a married couple to family, friends, and the community.
In 2021, a policy change offered retroactive social security survivors benefits to some same-sex couples who lost their partners before the establishment of marriage equality. To be eligible, individuals must have applied for survivors' benefits before November 25, 2020, and been denied due to laws prohibiting same-sex marriage. This policy change aimed to address the discrimination faced by older LGBTQ+ couples who were unable to access the same legal protections as heterosexual couples.
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Common misconceptions
There are several misconceptions about common-law marriage and what it takes to establish one.
Firstly, there is no requirement for a couple to live together for a specific period of time before they can declare themselves to be in a common-law marriage. While prolonged cohabitation may be considered as evidence of a common-law marriage, it is not in itself indicative of one. The precise requirements to prove a common-law marriage may vary from state to state, but generally, evidence and testimony are taken regarding the exchange of words in the present tense expressing the wish to establish a marriage, as well as other evidence that the couple acted as a married couple publicly.
Secondly, while some states in the US no longer recognize common-law marriages contracted within the state, all states recognize legal marriages created in other states. 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.
Thirdly, while it is true that some things that courts and agencies traditionally considered as evidence of a common-law marriage may not be available for gay couples who entered committed relationships before same-sex marriage was legal, same-sex couples can still provide other forms of evidence, such as lease agreements, tax returns, and insurance policies.
Finally, it is a misconception that common-law marriage does not apply to same-sex couples. In fact, state courts have the power to declare same-sex relationships to be common-law marriages if they would accord the same status to a heterosexual union. This is true even in states where common-law marriages were abolished before the legal recognition of same-sex marriage.
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State recognition
Marriage is a civil contract that can be established either through a ceremony or common law. A ceremonial marriage is a marriage performed by a religious or civil authority, while a common-law marriage is a marriage by express agreement of the parties in the present tense, where the couple subsequently holds themselves out as married.
In the United States, only 16 states recognize common-law marriages, and the requirements to prove such a marriage may vary from state to state. However, all states recognize legal marriages created in other states. For example, in Pennsylvania, a same-sex common-law marriage will be recognized if contracted before January 1, 2005, even though the state did not recognize same-sex marriages until May 20, 2014. Similarly, in South Carolina, a court declared a same-sex couple married under common law in 1987, despite the state only recognizing same-sex marriages from November 20, 2014.
In Texas, same-sex common-law marriages are recognized. Couples can register their common-law marriage by filing a declaration with the county clerk, although this is not a requirement. If a couple chooses not to declare their common-law marriage, documents such as lease agreements, tax returns, and insurance policies may be requested to prove the marriage.
The Social Security Administration will only recognize a same-sex common-law marriage if it was established in a state that recognized common-law marriage in general. As of 2022, only nine states (plus Washington, D.C.) legally permit couples to establish new common-law marriages, while more than a dozen states will recognize common-law marriages if they were established before the practice was abolished in that state.
The Supreme Court's 2015 decision in Obergefell v. Hodges legalized same-sex marriage in every state, and courts have since held that same-sex couples are entitled to have their valid common-law marriages recognized. This means that same-sex couples can claim the same rights, benefits, and responsibilities as heterosexual couples, including Social Security benefits based on a spouse's earnings record.
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Frequently asked questions
A common-law marriage is a marriage by express agreement between the two parties, using words in the present tense, for the purpose of establishing a marriage. This is different from a ceremonial marriage, which is performed by a religious or civil authority.
Yes, same-sex couples can enter into a common-law marriage. In 2015, the U.S. Supreme Court ruled that same-sex couples have the right to marry, and this includes common-law marriages. However, only certain states recognize common-law marriages, and the requirements to prove one may vary from state to state.
To prove a common-law marriage, you must provide evidence that you and your partner exchanged words in the present tense expressing the wish to be married, and that you held yourselves out as a married couple publicly. This could include using the same last name, referring to each other in public as "husband" or "wife", sharing joint bank accounts, or owning a house together.
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