Kara Sears
The recognition of common-law marriages for same-sex couples in the United States has been a complex issue due to the varying state laws and the historical denial of legal recognition for these couples. While some states like Texas, Colorado, and South Carolina have recognized common-law marriages for same-sex couples, the requirements and evidence needed to prove such marriages can be challenging. The difficulties in proving common-law marriages are not unique to same-sex couples, but the lack of legal recognition in the past has added a layer of complexity. Court rulings, such as Obergefell v. Hodges, have played a pivotal role in affirming the equal rights of same-sex couples to enter into common-law marriages and access the associated rights and benefits.
| Characteristics | Values |
|---|---|
| Recognition of common-law marriages | Only 16 states recognize common-law marriages, but all states recognize legal marriages created in other states. |
| Legal requirements | Live together, have the legal right to marry (be of legal age, sound mind, and not already married), and hold yourself out to friends and family as married (use the same last name, refer to each other in public as "husband" or "wife", share joint bank accounts, etc.). |
| Retroactivity | Same-sex couples can have their marriages dated back to before the legalization of same-sex marriage. |
| Evidence | Courts will consider different types of evidence, such as listing each other as domestic partners on forms and holding each other out as partners to the community. |
| Rights and benefits | Same-sex couples in a common-law marriage have the same rights, benefits, and responsibilities as legally married couples, including property rights, spousal support, child support, and divorce. |
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What You'll Learn
Common law marriage requirements for gay couples
The recognition of common-law marriages varies across the United States. While only 16 states recognize common-law marriages, all states recognize legal marriages created in those 16 states.
The requirements for common-law marriage are generally the same for gay and heterosexual couples. These are the four general requirements to create a common-law marriage:
- Live together: The amount of time required varies by state. Prolonged cohabitation alone is not indicative of a common-law marriage.
- Legal right to marry: Both parties must be of legal age, of sound mind, and not already married.
- Agreement to be married: This is typically evaluated through evidence and testimony regarding the exchange of words in the present tense expressing the desire to be married.
- Hold yourselves out as married: This can include using the same last name, referring to each other in public as "husband" or "wife", sharing joint bank accounts or credit cards, filing taxes jointly, or listing each other as spouses on medical documents.
In some states, such as Texas, a declaration of marriage or a signed agreement must be presented to prove a common-law marriage.
It is worth noting that same-sex couples may face unique challenges in proving common-law marriages due to the unavailability of certain legal documents before the legalization of same-sex marriage. However, courts in states like Colorado and South Carolina have recognized same-sex common-law marriages, and the U.S. Supreme Court decision in Obergefell v. Hodges ensures that same-sex couples can enter marriage contracts, including common-law marriages, on the same terms as different-sex couples.
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States that recognise common law marriages for gay couples
The recognition of common-law marriages for gay couples is a complex issue in the United States. While same-sex marriage has been legalised across all 50 states, the question of whether common-law marriages, which are marriages without a formal ceremony, apply to gay couples has been left unanswered in many states.
Currently, only 16 states recognise common-law marriages, and some of these explicitly include same-sex couples. The District of Columbia and states like Texas and South Carolina have been at the forefront of recognising same-sex common-law marriages. In a landmark ruling, a South Carolina court recognised a same-sex couple's 40-year relationship as a common-law marriage. Similarly, in Texas, same-sex couples can enter into common-law marriages, and in the event of a divorce, they are entitled to spousal support, child support, and asset division, just like heterosexual married couples.
Colorado is another state that has solidified the right of same-sex couples to marry via common law, even before the legalisation of same-sex marriage. The Colorado Court of Appeals acknowledged that same-sex couples would have different types of evidence to prove a common-law marriage, such as listing each other as domestic partners on insurance forms.
The recognition of same-sex common-law marriages is a significant step forward, especially considering the historical denial of legal recognition for gay couples. The NAACP, the leading civil rights organisation, and the Human Rights Campaign, the largest LGBTQ rights organisation in the US, have both advocated for marriage equality, emphasising the civil rights and economic benefits associated with marriage. The legal recognition of same-sex marriages, including common-law marriages, has had a positive impact on the mental health and well-being of the LGBTQ+ community.
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Evidence required to prove a common law marriage for gay couples
Same-sex couples have the same legal right as opposite-sex couples to establish a common-law marriage. However, gay and lesbian partners may have a harder time gathering the evidence required to prove that their relationship qualifies as common-law marriage. This is because, prior to the legalization of same-sex marriage, they did not have the option to file joint tax returns or list their partners as their spouse on many official documents. Additionally, due to the discrimination gays and lesbians faced in social and professional settings, same-sex couples have not always been able to hold themselves out in public as a married couple.
Despite these challenges, same-sex partners can still provide evidence to prove a common-law marriage. This evidence includes:
- An agreement or other official documents signed by both partners declaring their intention to marry
- Affidavits or testimony in court from one or both partners swearing to the existence of the informal marriage, explaining the nature of their relationship, and describing actions that demonstrated their intention to be married (such as exchanging rings and celebrating anniversaries)
- Affidavits from friends, family, or neighbours explaining their knowledge of the relationship, living arrangements, and the couple's reputation in the community as a married couple, including whether they participated in community activities as a family and referred to each other as "husband", "wife", or "spouse"
- Financial statements from any joint bank or credit accounts
- Listing each other as domestic partners on forms like life insurance
It is important to note that the requirements for common-law marriage may vary depending on the state, and not all states recognize common-law marriages. As of 2022, only nine states (plus Washington, D.C.) legally permit couples to establish new common-law marriages, while more than a dozen other states will recognize common-law marriages if they were established before the practice was abolished in that state.
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Rights and benefits of common law marriages for gay couples
The rights and benefits of common-law marriages for gay couples have been a topic of debate and court cases in recent years. While same-sex marriage is now legal in many places, there are still questions about the legal recognition of common-law marriages for gay couples, especially those who were together during a time when same-sex marriage was not legal.
In the United States, the Supreme Court's decision in Obergefell v. Hodges in 2015 stated 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 since applied this ruling retroactively to recognize common-law marriages for same-sex couples prior to the legalization of same-sex marriage. This has been further solidified by a recent decision from the Colorado Court of Appeals, which stated that Colorado courts will consider different types of evidence presented by same-sex couples to prove their common-law marriage status.
The specific rights and benefits that come with a common-law marriage for gay couples can vary depending on the state or province, as not all states recognize common-law marriages in the first place. However, once a common-law marriage is established, it is generally considered a marriage for all purposes, granting the couple the same rights, benefits, and responsibilities as any legally married couple. This includes rights to property, spousal support, child support, and inheritance, as well as eligibility for Social Security benefits based on a spouse's earnings record.
In Canada, same-sex marriage is legal across the country, but each province regulates its own laws for common-law couples. For example, in British Columbia, the Family Law Act provides gay and lesbian marriages and common-law relationships with the same rights as heterosexual marriages and common-law relationships, including property rights.
It is important to note that proving a common-law marriage can be challenging, especially for gay couples who were together during a time when same-sex marriage was not legal. Courts typically evaluate evidence such as cohabitation, co-mingling of finances, jointly filed tax returns, and how the couple represented themselves to others. However, some of this evidence may not be available to gay couples due to the legal restrictions at the time. Therefore, courts are encouraged to consider different types of evidence, such as listing each other as domestic partners on forms or holding each other out as partners to the community.
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Common law marriage and divorce for gay couples
In the United States, same-sex couples have had the legal right to marry since the Supreme Court ruling in 2017. However, the question of whether gay couples can enter into a common law marriage has been less clear. Common law marriage is a marriage without a ceremony, where couples have the same rights and obligations as a married couple with a ceremony.
While only 16 states recognize common law marriages, all states recognize legal marriages performed in other states. Some states, such as Texas, have recognized same-sex common law marriages, and a South Carolina court ruled that a same-sex couple who lived together for 40 years had a common law marriage. This ruling was significant because it applied retroactively to when the couple first got together in 1987, well before same-sex marriage was legalized.
To establish a common law marriage, couples must generally meet certain requirements, such as living together, having the legal capacity to marry, and holding themselves out as a married couple to friends and family. The precise requirements vary from state to state, and it can be challenging to prove a common law marriage due to a lack of documentation. However, courts will evaluate evidence, such as cohabitation, joint bank accounts, and tax returns, to determine whether a common law marriage exists.
The legalization of same-sex marriage has created a unique situation where gay couples may need to prove they were in a common law marriage before it was legally recognized. In these cases, courts may consider different types of evidence, such as listing each other as domestic partners on insurance forms or holding each other out as partners in the community.
Same-sex couples in a common law marriage have the same rights as other married couples in matters of divorce, spousal support, child support, and property division. However, same-sex custody litigation can be complicated if the couple cannot agree on visitation, support, or custody, and each spouse must demonstrate their legal parentage to the child.
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Frequently asked questions
A common-law marriage is a marriage without a ceremony. It 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.
No, only 16 states recognize common-law marriages. However, all states recognize legal marriages created in other states.
The requirements to prove a common-law marriage vary from state to state. Generally, evidence and testimony are presented regarding the exchange of words in the present tense, indicating the couple's intention to marry, and other evidence that the couple publicly held themselves out as married.
Yes, common-law marriages exist for gay couples in states that recognize common-law marriages. For example, in a South Carolina court ruling, a same-sex couple who lived together for about 40 years was recognized as having a common-law marriage.
