Kara Sears
West Virginia does not have a statute that specifically defines or regulates common-law marriages. However, the state may recognize common-law marriages in certain circumstances, such as when the couple has signed power of attorney papers and the marriage was contracted in a state that recognizes such a union. Ending a common-law marriage in West Virginia is similar to ending a traditional marriage and requires a legal divorce or annulment.
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What You'll Learn
Common-law marriage defined
A common-law marriage is a legally recognised marriage that does not require a marriage license or a formal ceremony. In other words, it is an informal marriage. The original concept of a "common-law" marriage is one that is considered valid by both partners but is not formally recorded with a state or religious registry, nor celebrated in a formal civil or religious service.
Community recognition of a marriage was largely what qualified it as a marriage. Civil and religious officials took no part in marriage ceremonies and did not keep registries. There were several more or less formal ceremonies to choose from, as well as informal arrangements. It was relatively common for couples to cohabit with no ceremony; cohabiting for a moderate period was sufficient to make it a marriage.
In medieval Europe, marriage came under the jurisdiction of canon law, which recognised as a valid marriage one in which the parties stated that they took one another as wife and husband, even in the absence of any witnesses. The Catholic Church forbade clandestine marriage at the Fourth Lateran Council (1215), which required all marriages to be announced in a church by a priest. England abolished clandestine or common-law marriages in the Marriage Act 1753, requiring marriages to be performed by a priest of the Church of England.
Today, common-law marriages are legally recognised in only 15 states and the District of Columbia in the US. While some provinces in Canada may extend to couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married. In Scotland, common-law marriage does not exist.
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West Virginia's stance
West Virginia does not have a statute that specifically defines or regulates common-law marriages. However, it is one of the states that recognizes common-law marriages. The state looks at each case on an individual basis and determines whether the couple meets the requirements for marriage by habit and repute.
To establish a common-law marriage in West Virginia, the couple must cohabit and live together as husband and wife. The court will consider several factors in certain cases like a divorce or separation proceeding. The court will usually consider the following aspects of West Virginia law on the common-law marriage:
- The two parties actually cohabitated in an out-of-state jurisdiction.
- The out-of-state jurisdiction had established common-law marriage laws and requirements.
- The date of actually declaring the specific type of marriage can be established by the court.
- If no common-law marriage laws exist within the other jurisdiction, the court must determine if there were any power-of-attorney documents signed before cohabitation.
Ending a common-law marriage in West Virginia is similar to ending a traditional marriage. The couple must legally dissolve the marriage through divorce or annulment. If the couple separates without a legal divorce, they may still be considered married under common law for certain purposes.
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De facto marriages
West Virginia does not recognize common-law marriages. However, the state does recognize de facto marriages, which are similar to common-law marriages in some respects.
De facto couples are entitled to almost the same rights and claims as married couples when it comes to family law matters, including property, financial settlements, maintenance, and arrangements for any children of the relationship.
To be considered a de facto couple, there are several criteria that must be met. These include:
- The couple must live together on a genuine domestic basis.
- The period of the de facto relationship must be at least two years.
- There is a child of the de facto relationship.
- The relationship is or was registered under a prescribed law of a state or territory.
- One party has made significant contributions to the relationship, and failing to recognize this would result in a serious injustice.
It is important to note that the specific criteria and requirements for de facto marriages may vary depending on the state or country's laws. The information provided here is based on the sources available and may not cover all possible situations or jurisdictions.
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Division of property
West Virginia does not have a provision in state law about common-law marriage. Common-law marriage laws have never existed in the state, and there are specific marriage requirements. However, in certain circumstances, a court may recognize a common-law marriage within a divorce or settlement procedure. For instance, if a couple in a recognized common-law marriage agrees on the division of property in the event of a future separation, West Virginia may recognize such agreements.
To establish a common-law marriage in West Virginia, the following elements must be present:
- Cohabitation: The couple must live together as husband and wife.
- Mutual Agreement: Both parties must agree that they are married and hold themselves out as such to the community.
- Public Recognition: The couple must be known as married to family, friends, and the community.
- Intent to be Married: Both parties must intend to be married and not just be living together as roommates.
In addition to these requirements, the couple must be of legal age and not be closely related by blood. The benefits of common-law marriage in West Virginia are similar to those of traditional marriage. A couple in a common-law marriage has the right to make medical decisions for each other, inherit from each other without a will, and receive spousal benefits such as social security and pension benefits.
In terms of the division of property, West Virginia is an equitable distribution state, meaning that marital property is subject to a fair, but not necessarily equal, division. Marital property includes all property acquired by either spouse during the marriage that is not separate property. Separate property is property acquired by a spouse before the marriage or during the marriage in exchange for property acquired before the marriage. If spouses retitle separate property or use it as a marital asset, courts may consider it marital property during a divorce.
If the divorcing spouses have a prenuptial agreement or other separation agreement, the court will usually accept it if it is fair to both parties. If there is no agreement or the arrangement is not fair to one party, a family law judge will make an equitable distribution of property. The judge may consider several factors when dividing the marital estate, but property division is not calculated based on fault.
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Ending a common-law marriage
Although common-law marriages are not recognized in West Virginia, the state may acknowledge such marriages in certain circumstances, such as during divorce or settlement procedures. If a couple in a common-law marriage recognized by another state or jurisdiction wishes to end their union in West Virginia, they must legally dissolve the marriage through divorce or annulment.
To ensure the validity of their common-law marriage in West Virginia, the couple should meet certain conditions. Firstly, they should have signed power of attorney papers while in the relationship. Secondly, the marriage should have been contracted in a state or district that recognized such unions according to their common-law marriage laws. Additionally, the couple must have cohabitated in an out-of-state jurisdiction.
When ending a common-law marriage in West Virginia, the process is similar to ending a traditional marriage. The couple must legally dissolve the marriage through the proper legal channels, such as divorce or annulment. Failure to obtain a legal divorce may result in the couple still being considered married under common law for specific purposes.
It is important to seek legal assistance from a qualified professional, such as a common-law marriage lawyer, to navigate the specific requirements and procedures for ending a common-law marriage in West Virginia. The lawyer will guide you through the process, ensuring that all necessary steps are taken to legally terminate the marriage.
Although this answer focuses on West Virginia, it is worth noting that the process of ending a common-law marriage can vary depending on the state and jurisdiction. For example, in Washington State, common-law marriages are not recognized, but couples in long-term relationships are granted certain rights under what the state calls a "committed intimate relationship." When ending such a relationship, courts will determine a fair and equitable outcome, considering factors such as the economic status of each partner, the type of property involved, and the length of the relationship.
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Frequently asked questions
West Virginia does not have a statute that specifically defines or regulates common-law marriage. However, it is one of the states that recognizes common-law marriage. The state looks at each case individually and determines whether the couple meets the requirements for marriage by habit and repute.
Common-law marriage is a legal concept recognized by some states in the US. It allows couples who have lived together for a certain amount of time and hold themselves out as married to be considered legally married without a formal ceremony or marriage license.
To establish a common-law marriage in West Virginia, the couple must live together as husband and wife without a marriage license or certificate. The court will consider several factors, including cohabitation in an out-of-state jurisdiction with established common-law marriage laws and requirements.
Ending a common-law marriage in West Virginia is similar to ending a traditional marriage. The couple must legally dissolve the marriage through divorce or annulment. If the couple separates without a legal divorce, they may still be considered married under common law for certain purposes.
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