Keith Mack
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 few states and jurisdictions. The requirements for a valid common-law marriage vary from state to state, but generally include capacity to enter into a marriage, cohabitation, public recognition, and consummation. While some states have abolished common-law marriage, others still recognise it, and the process of ending a common-law marriage is the same as a conventional divorce.
| Characteristics | Values |
|---|---|
| Number of states recognizing common law marriages | 7 states and the District of Columbia fully recognize common law marriages. 2 states recognize domestic common law marriage for limited purposes. 17 states recognize some form of common law marriage. |
| States that fully recognize common law marriages | Colorado, District of Columbia, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas |
| States that partially recognize common law marriages | Alabama, Florida, Georgia, New Hampshire, Pennsylvania, South Carolina, Utah, Idaho, Ohio |
| Requirements for common law marriages | Live together for a specified amount of time, be of legal age and sound mind, have the capacity to enter into a marriage, have the intention to be married, and be recognized as a married couple by the community |
| Divorce process | Same as conventional divorce, involving division of assets and property, spousal support, child support, and child custody issues |
| Recognition across states | States without common law marriage must recognize a common law marriage from another state, and vice versa, due to the Constitution's full faith and credit clause |
| Recognition in other jurisdictions | Domestic common law marriages are contracted within a particular jurisdiction, while foreign common law marriages are contracted outside of it |
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What You'll Learn
Common law marriage states in the US
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 number of U.S. states and jurisdictions. Common-law marriage can no longer be contracted in 27 states and was never permitted in 13 states.
The requirements for a common-law marriage to be validly contracted differ from state to state. Nevertheless, all states—including those that have abolished common-law marriage within their boundaries—recognize common-law marriages lawfully contracted in jurisdictions that permit it.
As of 2024, the following U.S. states recognize common-law marriage: Colorado, Iowa, Kansas, Montana, New Hampshire, Texas, Utah, and the District of Columbia. South Carolina and Rhode Island have limited recognition of common-law marriage.
Each of these states has its own specific rules and legal stipulations that must be met to qualify for legal protections and benefits. For example, in Iowa, a couple must mutually consent to being married, live together consistently as if they are spouses, and publicly declare their marital bond to constitute a valid common-law marriage. In Kansas, an actual agreement between the parties to live as husband and wife is necessary, and they must present themselves within society as married, such as by referring to each other with spousal titles or submitting joint tax returns.
In addition to the above, there are some states that no longer have common-law marriages but still recognize them as valid if they occurred before a certain date. These states include Georgia, Ohio, Pennsylvania, Florida, and Indiana.
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Requirements for recognition
In the United States, common-law marriage is a form of irregular marriage that survives in a limited number of jurisdictions. 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.
To have a relationship recognized as a common-law marriage, certain general requirements must be met. Both parties must be of legal age to marry and be considered of sound mind. While the legal age to marry without parental consent is typically 18, there are exceptions in some states. For example, Colorado allows minors aged 16-17 to marry with judicial approval, and Texas recognizes the legal capacity of individuals aged 16-18 with parental consent or court order.
Additionally, both parties must intend to have their marriage recognized by the law and must live together for a specified period, which varies by state. In the District of Columbia, no specific timeframe is mandated, but cohabitation for a "significant amount of time" is required.
Specific criteria for common-law marriage recognition vary by state. In Colorado, the elements include holding themselves out as husband and wife, consenting to the marriage, cohabitation, and having a reputation in the community as a married couple. Similarly, in the District of Columbia, a common-law marriage is established by the explicit intent to be married and cohabitation. In Iowa, continuous cohabitation and public declarations of being husband and wife are essential, along with the parties' intent and agreement to be married.
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Legal rights of unmarried partners cohabiting
The rights of unmarried partners cohabiting vary depending on the jurisdiction. In some places, unmarried cohabiting couples have very few rights, while in others, they may have similar rights to married couples. Here is a general overview of the legal rights of unmarried partners cohabiting, with specific examples from different jurisdictions:
Property Ownership
One of the most significant legal issues for unmarried cohabiting couples is property ownership. In most jurisdictions, property owned before cohabitation remains the property of the original owner. Property acquired during the relationship may be owned jointly, especially if purchased with funds from a joint account. However, this can be complex, and in some cases, the property may be treated as belonging solely to the person whose name is on the title or deed. If one partner has debt, their creditors may seek to attach jointly owned property as if it were solely owned by the indebted partner.
Separation and Death
When an unmarried cohabiting couple separates, there is generally no legal obligation for one partner to provide financial support to the other, as there might be in a divorce. However, some jurisdictions, like Ireland, have a Redress scheme that allows financially dependent partners to seek property adjustment orders, maintenance orders, and pension adjustment orders.
In the case of the death of one partner, the surviving partner typically has no automatic right to inherit their estate (property, money, and possessions). However, if there is a will, the surviving partner may be provided for, although they may have to pay taxes on their inheritance.
Children
The rights of unmarried cohabiting couples regarding children are generally similar to those of married couples. Both parents, regardless of marital status, have a legal right to inherit from their child, and the child has a right to inherit from both parents. In some jurisdictions, unmarried couples can apply to adopt a child jointly.
Contracts
In some jurisdictions, unmarried cohabiting couples can enter into legal contracts, such as cohabitation agreements or domestic partnerships, to outline their financial arrangements and specify how assets will be separated if the relationship ends. These contracts can provide rights similar to those of married couples, but they may not be recognised in all jurisdictions.
Other Rights
Unmarried cohabiting couples may also have certain rights in specific areas, such as protection under domestic abuse laws and eligibility for means-tested benefits.
In summary, the legal rights of unmarried partners cohabiting vary widely depending on the jurisdiction, and while there have been moves towards greater recognition of these relationships, they generally do not enjoy the same rights and protections as married couples or civil partnerships.
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Moving from a common law marriage state to a non-common law marriage state
In the United States, common-law marriage is a form of irregular marriage that is only recognised in a handful of states. These include Alabama, Colorado, the District of Columbia, Iowa, Kansas, Montana, Rhode Island, and Texas. Each state has its own rules and requirements for a long-term relationship to qualify as common law. For example, in Texas, one of the criteria is the co-mingling of assets, such as buying a house together or having a joint bank account.
If a couple has a legitimate common-law marriage in a state that allows these informal marriages and then moves to a state that doesn't permit them, their marriage should still be valid in their new place of residence. This is because of the Full Faith and Credit Clause in Article IV of the U.S. Constitution, which requires states to recognise the laws of other states, including marriage laws.
For example, if a couple is common-law married in Texas and then moves to California, which does not recognise common-law marriage, their marriage will still be recognised in California. This is because Texas, where the marriage originated, recognises it as valid. However, where official proof of marriage is required, such as in divorce or probate courts, the couple would need to provide evidence that their marriage was recognised in the state where it took place. This may involve obtaining a declaration from a court in the original state.
It is important to note that the laws regarding common-law marriage are subject to change and vary from state to state. Therefore, it is advisable to seek legal advice or consult the family laws of the specific states in question for the most up-to-date information.
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Divorce and common law marriages
Common-law marriages are legally recognised in some US states, including Texas, Colorado, Oklahoma, and Rhode Island. When a couple in a common-law marriage decides to part ways, the process is similar to that of a traditional divorce.
Firstly, the couple must establish the validity of their common-law marriage in a court of law. This involves presenting evidence of cohabitation for a stipulated period, intention to live as a married couple, and public presentation as such. Once the common-law marriage is proven, the divorce process can begin with the submission of a formal petition to the court, outlining reasons for the divorce and addressing pertinent issues like property division, alimony, and child custody.
The distribution of assets and liabilities is an important aspect of the divorce process. Common-law couples, like traditionally married couples, accumulate assets and liabilities over time, which must be distributed equitably. This may involve evaluating jointly held properties, shared debts, and other financial matters. Both parties can agree upon a division, or the court will decide on their behalf if an agreement cannot be reached.
All states in the US offer a 'no-fault' divorce option, where neither party needs to prove fault for the marriage dissolution. Couples can cite 'irreconcilable differences' or 'living separately for a specified duration', depending on state laws. Opting for this option can simplify and expedite the divorce process, reducing costs and emotional stress.
Finally, the court reviews and approves all aspects of the divorce, including property division, alimony, and child custody arrangements. A judgment of divorce is then granted, legally ending the common-law marriage. Both parties are free to enter new relationships, but it's crucial that any subsequent marriage is only pursued after obtaining the divorce judgment, or it will be considered invalid.
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Frequently asked questions
A common-law marriage, also known as sui juris marriage, is a form of irregular marriage that does not require a marriage license, ceremony, or certificate.
Common-law marriages are only recognized in a handful of states, including Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Some states have limited recognition of common-law marriages, such as Utah, South Carolina, and New Hampshire.
The requirements for a common-law marriage vary by state but generally include both parties being of legal age and sound mind, intending to be married, cohabitating, and holding themselves out as a married couple to the public.
