Keith Mack
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 recognized in a handful of states and the District of Columbia, along with some provisions of military law. The recognition of common-law marriage by the federal government is not dependent on whether or not a state recognizes it. Instead, the federal government will accept a common-law marriage as valid if it is recognized as such by the state in which it was contracted. This has implications for Social Security benefits and leave rights under the Family and Medical Leave Act.
| Characteristics | Values |
|---|---|
| Recognition of common-law marriage by the federal government | Depends on the state. If a state recognizes a common-law relationship as a valid marriage, the federal government will accept it. |
| States that recognize common-law marriage | Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia |
| States with limited recognition of common-law marriage | Utah, South Carolina, New Hampshire |
| States that do not recognize common-law marriage | 13 states never permitted, 28 no longer permit, and the remaining states are unclear |
| Federal agencies that recognize common-law marriage | The Social Security Administration, the United States Department of Labor |
| Evidence of common-law marriage | Statements from the couple, convincing evidence of their relationship, and proof of holding themselves out as a married couple to the community |
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What You'll Learn
Common-law marriage recognition in specific states
Common-law marriage, also known as sui juris marriage, informal marriage, or marriage by habit and repute, is a form of irregular marriage that is only recognised in a handful of US states. The origins of common-law marriage are uncertain, but it arguably dates back to colonial America, where there were few clerics or civil officials to conduct ceremonial marriages.
As of 2022, the following US states recognise common-law marriages: Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire have limited recognition of common-law marriage.
Utah's recognition of common-law marriage is somewhat ambiguous. While some sources claim that common-law marriage does not exist in Utah, others state that "non-matrimonial relationships" may be recognised as marriages within one year of the relationship ending. Utah will only recognise such a relationship if it has been validated by a court or administrative order, and the couple must meet certain requirements, such as being of legal age and capable of giving consent, cohabiting, and holding themselves out as a married couple.
New Hampshire has a similar stance, recognising common-law marriage only for probate purposes.
South Carolina, on the other hand, recognises common-law marriages that were established before a certain date.
Additionally, some states that do not typically recognise common-law marriages will still acknowledge them if they were established in a state where they are legal. For example, California, which does not recognise common-law marriages, will acknowledge a common-law marriage that was validly contracted in another jurisdiction. This is due to the Constitution's full faith and credit clause, which states that states must respect the laws of other states.
The recognition of common-law marriages varies from state to state, and each state has its own specific requirements that must be met for a common-law marriage to be recognised. These requirements often include the intention to be married, living together, and holding themselves out publicly as a married couple.
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Federal recognition of common-law marriage
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 only in a limited capacity. While the specific requirements vary, common-law marriage is currently recognised in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire have limited recognition of common-law marriage.
The recognition of common-law marriage by the federal government is not dependent on whether or not a state recognises it. If a state recognises a common-law relationship between two individuals as a valid marriage, the federal government will accept this determination. Conversely, if a state does not recognise a valid marriage, the federal government will evaluate the specific relationship between the individuals.
In one case, a couple residing in a state that did not recognise common-law marriage was deemed by the Social Security Administration to have a husband-wife relationship under the Social Security Act. The federal government's recognition of a common-law marriage may impact the application of the Social Security Act and the deeming provisions of the Act.
The United States Department of Labor has also issued an amended definition of "spouse" under the Family and Medical Leave Act of 1993 (FMLA), extending FMLA leave rights and job protections to eligible employees in a common-law marriage entered into in a state or jurisdiction where those statuses are legally recognised, regardless of the employee's current state of residence.
Additionally, specific state or jurisdiction requirements must be considered by couples contemplating filing joint returns.
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Social Security Act and common-law marriage
In the United States, common-law marriage is a form of irregular marriage that is currently only recognised in seven US states, the District of Columbia, and some provisions of military law. A further two states recognise domestic common-law marriage for limited purposes. Common-law marriage is also recognised in Canada.
The Social Security Administration (SSA) follows state law when determining whether a couple has a valid marriage. If a couple's common-law marriage was created in a state that permitted it, they may get Social Security survivors or spouses' benefits in any state. To have a valid common-law marriage, the couple must have been living in a state that recognises common-law marriage and met the basic requirements of that state. These include being free to marry, considering themselves married, and living together as a married couple.
Preferred evidence of a common-law marriage includes signed statements from both spouses and two blood relatives. If preferred evidence is not available, the SSA will ask for other convincing evidence of the marriage.
Common-law spouses can receive Social Security benefits based on their spouse's earnings record. These include spousal, survivor, and death benefits. Individuals in a common-law marriage may also be eligible for dependents' or survivors' benefits if they are divorced, as long as their common-law marriage and divorce were valid under state law.
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Common-law marriage and same-sex marriage
In the United States, common-law marriage is a form of irregular union that is only recognised in a handful of states and the District of Columbia, as well as in some military and common law contexts. It is often used colloquially to refer to cohabiting couples, which can create confusion about the legal rights of unmarried partners.
The concept of common-law marriage is distinct from that of a ceremonial marriage, which is performed by a religious or civil authority with customary formalities. By contrast, a common-law marriage is formed when a couple agrees, through words in the present tense, to establish a marriage and subsequently holds themselves out as married.
The recognition of common-law marriages, especially in the case of same-sex couples, has been a subject of debate and court cases. While the Supreme Court ruled that same-sex couples have the right to marry, the legal rights and benefits for these spouses, including in common-law marriages, are still being clarified.
In some states, such as Pennsylvania and South Carolina, same-sex common-law marriages are recognised if they were contracted before a certain date, even if same-sex marriage was not legally recognised in those states at the time. For example, a South Carolina court ruled that a same-sex couple who lived together for about 40 years had a common-law marriage, and in Pennsylvania, a same-sex common-law marriage was recognised if it was contracted before January 1, 2005.
The recognition of same-sex common-law marriages can provide important rights and benefits to couples, such as the equitable distribution of marital property in divorce proceedings, the ability to amend death certificates, and intestate succession. Additionally, under the Obergefell v. Hodges decision, state courts have the power to declare same-sex relationships as common-law marriages if they would accord the same status to heterosexual unions.
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History of common-law marriage
The history of common-law marriage dates back to medieval England, where marriages were often recognized based on the couple's intent and public acknowledgment rather than formalities. This concept evolved over time, influenced by factors such as religion, tradition, and legal developments, and found its way into the legal systems of various countries.
In the United States, the origins of common-law marriage can be traced back to the colonial era, where legal systems mirrored those of England. The Marriage Act of 1753, which applied to England and Wales, did not extend to the American colonies, allowing common-law marriages to continue in what became the United States. This was particularly relevant in colonial America, where there were relatively few clerics or civil officials to perform ceremonial marriages. As settlers moved into sparsely populated regions of the West, the need for common-law marriages expanded.
The first state in the United States to officially recognize common-law marriage was Alabama in 1847, when the Alabama Supreme Court acknowledged its validity in the case of Meagher v. Meagher. Throughout the 19th and early 20th centuries, common-law marriage gained popularity in various states, with each region shaping its laws according to cultural, social, and religious influences.
Over time, the recognition of common-law marriage has become a state-specific matter in the United States. As of 2022, it is recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire have limited recognition of common-law marriage. The specific requirements for a common-law marriage to be recognized vary by state, and couples contemplating such a union should consult the relevant state laws.
While common-law marriage has been gradually abolished in Western nation states, it continues to be recognized in some form in certain states within the United States. The term "common-law marriage" is often used colloquially to refer to cohabiting couples, creating some confusion regarding the legal rights of unmarried partners. However, a true common-law marriage is considered valid by both partners and is recognized by the state, even without a formal marriage ceremony or license.
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Frequently asked questions
The federal government will recognize a common-law marriage if the state in which the couple resides recognizes it as a valid marriage.
If the state does not recognize common-law marriage, the federal government will look at the specific relationship between the couple to determine if a husband-wife relationship exists.
A couple must reside together, hold themselves out to the world as a married couple, and otherwise behave as a married couple.
As of 2022, common-law marriages are recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire have limited recognition of common-law marriage.
