Kara Sears
The concept of common-law marriage, also known as sui juris marriage, informal marriage, or marriage by habit and repute, is a form of irregular marriage that does not require a civil or religious ceremony. Instead, it recognizes two parties that cohabitate and consent to live as spouses. While it is widely believed that common-law marriage exists, the reality is that only a few states and jurisdictions in the United States legally recognize it, and each has its own unique requirements for a long-term relationship to qualify as common law. Outside of these limited areas, common-law marriage is not considered a valid form of marriage that carries any legal rights. This misconception may stem from the historical context of the term, which originated in the 19th century to describe couples who lived together but lacked legal recognition of their union.
| Characteristics | Values |
|---|---|
| Number of U.S. states where common law marriage is recognized | 7 or 9 |
| U.S. states that recognize common law marriage | Colorado, District of Columbia, Alabama, Montana, Iowa, Kansas, New Hampshire, Pennsylvania (if before 9/2003), South Carolina, Utah, Rhode Island, Texas, Ohio (if before 10/1991), Idaho (if before 1996), Georgia (if before 1997), and Oklahoma |
| U.S. states that recognize both putative marriage and common law marriage | Colorado, Montana, and Texas |
| U.S. states that recognize domestic common law marriage after the fact for limited purposes | 2 |
| Number of jurisdictions in the U.S. where common law marriage is possible | 9 |
| Number of U.S. states that do not recognize common law marriage | Majority or most |
| U.S. state where the status of common law marriage is unclear | Utah |
| Country where common law marriage is widespread | Canada |
| Country where common law marriage is virtually impossible | Britain |
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What You'll Learn
Common law marriage in the US
In the United States, 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 is currently only recognised in a handful of states. The term is often used colloquially to refer to cohabiting couples, regardless of their legal rights.
Common-law marriage is a way for couples to be legally recognised as married without a marriage license, ceremony, or certificate. For a couple to be considered married under common law, they must meet the requirements of their state. These requirements include cohabitation and consent to live as spouses, but the specifics vary depending on the state.
While most states do not contract common-law marriages, they will typically recognise these unions if they are contracted in a different state. This is because the United States Constitution's full faith and credit clause states that states must respect the laws of other states. For example, Ohio and California, which do not have common-law marriage, would recognise a couple as legally married if they were common-law married in a state that recognises it, such as Colorado or Texas.
The recognition of common-law marriage varies widely across the US. Some states have abolished it but still recognise common-law marriages that began before a certain date or for a specific purpose. Other states, like Alabama, Florida, Georgia, and Ohio, recognise common-law marriages created before a certain date in the past.
The requirements to contract a valid common-law marriage differ between jurisdictions. In Colorado, for example, the Supreme Court revised the elements for common-law marriage in 2021 in light of changing social practices and Supreme Court rulings.
The finding of a common-law marriage can have significant consequences, as it grants couples the same rights and obligations as a formally married couple in their state.
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Common law marriage in the UK
In the UK, common-law marriage is a concept that refers to a marriage-like relationship between two people who live together for a certain period of time but without actually getting married or registering their partnership formally. This type of arrangement is not recognised in the UK, though it is recognised in some other countries. For example, in the United States, common-law marriage is recognised in some states, and couples who meet certain criteria can enjoy many of the same legal benefits as married couples.
In the UK, couples who live together are sometimes called common-law partners. However, this is just another way of saying a couple are living together, and it does not confer any of the rights and protections that married or civil-partnered couples have. For instance, unmarried couples do not have the same rights when it comes to finances, responsibility for children, and housing, as well as inheritance.
Unmarried couples in the UK can take steps to protect themselves and their assets, such as drawing up a legal agreement called a cohabitation contract or living together agreement. This outlines the rights and obligations of each partner towards each other. A separate legal agreement about how to share property, called a 'declaration of trust', can also be made. It is recommended that couples get help from a family law solicitor when drawing up these agreements.
In Scotland, cohabiting couples have had certain protections since 2006. For example, household goods bought during the relationship are ruled to be jointly owned, and financial provisions are made for decisions made during the relationship, such as one partner taking time away from their career for childcare. Surviving partners are also protected and allowed access to their deceased partner's estate, even without a will.
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Common law marriage misconceptions
Common-law marriage, also known as non-ceremonial marriage, sui iuris marriage, informal marriage, or marriage by habit and repute, is a marriage that occurs when two eligible people who intend to be married live together as a married couple and hold themselves out to the world as a married couple. Common-law marriage is not recognized in all jurisdictions, and even in places where it is recognized, there are specific requirements that must be met.
Despite the prevalence of common-law marriage in some places, several misconceptions surround this topic. One of the most pervasive myths is that a couple automatically enters into a common-law marriage after cohabiting for a certain period, often believed to be seven years. This is inaccurate; there is no specific time requirement for common-law marriage. While the duration of cohabitation may be a factor in determining the validity of a common-law marriage, it is not the sole criterion.
Another misconception is that common-law marriage is recognized everywhere. In reality, only a small number of states in the US recognize common-law marriage, and each of these states has its own unique rules and requirements. Additionally, while some provinces in Canada may grant couples in marriage-like relationships similar rights and responsibilities as married spouses, they are not legally considered married.
Furthermore, there is a misconception that common-law marriage is a commitment that can be decided solely by the couple. While the couple's agreement to be married is essential, it is the legal system that ultimately decides if a common-law marriage exists. The court may consider factors such as the couple's public presentation as a married couple, their cohabitation, and their mutual assumption of marital rights and duties.
Lastly, there is a misconception that common-law marriage is a separate type of marriage with different legal implications. In reality, a common-law marriage is as legally binding as a "regular" marriage. If a common-law marriage is valid, the couple is entitled to the same legal rights and economic benefits as couples with marriage licenses. However, if the couple splits up, they must obtain a traditional divorce, as there is no such thing as a "common-law divorce."
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Rights and obligations of common law spouses
The rights and obligations of common-law spouses vary depending on the jurisdiction. In some places, common-law marriage is not legally recognized, and common-law spouses may have no rights or obligations unless they have separately and legally secured protection. In other places, common-law spouses may have similar rights and obligations to married spouses, including property rights, inheritance rights, and spousal support obligations.
In England and Wales, the term "common-law marriage" refers to unmarried, cohabiting heterosexual couples, but this is merely a social usage and confers no legal rights or obligations. Unmarried partners may be recognized for certain purposes, such as means-tested benefits, but in many areas of the law, they have no special rights. When a cohabiting relationship ends, ownership of assets is decided by property law, and courts cannot reallocate assets as they can in a divorce.
In Canada, informal cohabitation relationships are recognized for certain purposes, creating legal rights and obligations. While couples in marriage-like relationships may be granted many of the rights and responsibilities of marriage, they are not legally considered married and are defined as "unmarried spouses."
In the United States, the recognition of common-law marriage varies by state. Couples who qualify for common-law marriage have the same property rights, inheritance rights, and spousal support obligations as traditionally married couples. However, without a formal marriage license, disputes over the existence of the marriage can complicate the divorce process and matters related to property division, spousal support, and child custody.
To secure rights and obligations in a common-law relationship, couples can consider alternatives such as cohabitation agreements, domestic partnerships, civil unions, or traditional marriage. Cohabitation agreements are legal contracts that outline the rights and responsibilities of each partner, covering property division, financial support, and other vital matters. Domestic partnerships and civil unions offer many of the same benefits as marriage, such as health insurance, inheritance rights, and hospital visitation rights, but their recognition may vary by state.
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Recognition of common law marriage in different states
In the United States, 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 survives in a few states. The term "common-law marriage" is often used colloquially to refer to cohabiting couples, regardless of their legal rights. The origins of common-law marriage are uncertain, but it is arguably the original form of marriage, where a couple took up residency together and held themselves out as a married couple.
Recognition of Common-Law Marriage in Different States
Common-law marriage is currently recognized in the following US states:
- Alabama (if created before 1st January 2017)
- Colorado
- District of Columbia
- Florida (if created before 1st January 1968)
- Georgia (if created before 1st January 1997)
- Indiana (if created before 1st January 1958)
- Iowa
- Kansas
- Montana
- New Hampshire
- Ohio (if entered before 10th October 1991)
- Oklahoma
- Pennsylvania (if entered before September 2003 or 1st January 2005)
- Rhode Island
- South Carolina
- Texas
- Utah (status is not clear, but recognized under certain conditions)
- Idaho (if created before 1st January 1996)
Each state has different requirements for a long-term relationship to qualify as a common-law marriage. These requirements include living together for a specified amount of time, which varies by state, and meeting the legal requirements for marriage, such as being of legal age and having the mental capacity to marry.
Some states, like Alabama, have abolished common-law marriage but still recognize such marriages if they began before a certain date. Utah's status is unclear, with government websites claiming it does not exist, but some legal websites stating that "non-matrimonial relationships" may be recognized as marriage within one year of ending.
Additionally, states without common-law marriage must recognize such marriages from other states, provided the relationship meets all the requirements of a common-law marriage in a state where it is recognized. For example, if a couple with a common-law marriage in Colorado moves to Ohio, which has limited recognition, Ohio will still recognize their marriage as legal.
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Frequently asked questions
Common law marriage exists in very few states in the US. The states that recognize common law marriage are Colorado, District of Columbia, Alabama, Montana, Iowa, Kansas, New Hampshire, Pennsylvania (if it was entered before 2003), South Carolina, Utah, Rhode Island, Texas, Ohio (if entered before 1991), Idaho (if it was entered before 1996), Georgia (if entered before 1997), and Oklahoma.
The requirements for a common-law marriage vary from state to state. However, the general requirements include cohabitation for a certain period, consent to live as spouses, and the intention to establish a marriage.
A common-law marriage grants the same rights and obligations as a legal marriage. This includes property rights, spousal support, and legal protections.
