Kara Sears
Common-law marriage is an informal type of marriage without a marriage license or certificate. Common-law marriage is recognized in only a handful of US states and the District of Columbia, and each state has its own rules. To prove a common-law marriage, couples must provide certain documents, such as an affidavit, property deed, joint bank account statements, or other proof that they live together as spouses.
Characteristics and Values of a Common-Law Marriage
| Characteristics | Values |
|---|---|
| Recognition by the state | Common-law marriage is recognized in some states in the US and not in others. It is also not recognized in Italy. |
| Documentation | Affidavit, property deed, joint bank account, acknowledgement of paternity, joint tax returns, etc. |
| Mutual agreement to be married | Both parties must intend to be married and hold themselves out in public as a married couple. |
| Age and mental capacity | Both spouses must be at least 18 years old and have the mental capacity to understand the commitment and consequences of marriage. |
| Marital status and consanguinity | Both spouses must be unmarried and not closely related. |
| Monogamy | Both spouses must not be married to anyone else. |
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Affidavits
An affidavit is a written statement in which you swear under oath that what you are stating is true. There are two types of affidavits that can be used to prove a common-law marriage: personal affidavits and friend and family affidavits.
Personal affidavits are written statements by you and your partner, declaring that you are married. These affidavits should include the date and location where you both agreed to become spouses, details of any previous marriages, and any other information that may help demonstrate a spousal relationship.
Friend and family affidavits are statements from individuals who know you and your partner and are familiar with your relationship. These affidavits should include how they know you, the length of time you and your spouse have lived together, whether there was a public announcement of your marriage, and any other evidence that suggests you are perceived as a married couple. This could include name changes on official documents, birth certificates listing both spouses as parents, jointly held property deeds, joint bank accounts, or joint financial obligations.
It is important to note that the requirements for common-law marriage vary by state, and some states do not recognize it at all. If you live in a state that does not recognize common-law marriage, you may still be able to establish it if you previously lived in a state that does and can provide the necessary documentation.
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Joint documents
- Loan documents, leases, mortgages, and promissory notes that display joint financial commitments.
- Credit card accounts or joint bank accounts in both spouses' names.
- Tax returns filed jointly, indicating a public declaration of the marriage.
- Insurance policies that include the spouse as a beneficiary or dependent.
- Deeds or titles to property held jointly by both spouses.
- Birth certificates of children born within the marriage, recognising both parents.
- Church records, such as baptismal certificates of the spouses' children or membership information.
- Social media posts, emails, or letters where the couple refers to each other as "wife," "husband," or "spouse."
It's worth noting that same-sex couples may face additional challenges due to historical discrimination and the previous inability to legally recognise their relationships. As a result, they might have fewer traditional joint documents to rely on. However, the Obergefell v. Hodges ruling in 2015 affirmed that common-law marriages between same-sex couples are legally recognised and granted them the same rights as opposite-sex couples in this regard.
To ensure you have the most relevant and comprehensive understanding of the requirements in your state, it is always advisable to consult with a family law attorney or seek legal counsel. They can guide you through the process and help you protect your rights.
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State recognition
The specific requirements to establish a common-law marriage differ depending on the state. However, some general marriage prerequisites are standard across all states. For instance, in most states, both spouses must be at least 18 years old or have parental consent if younger. Additionally, all states prohibit marriage between close relatives (incest) and polygamy.
To prove a common-law marriage in a state that recognises it, couples must generally demonstrate three key elements: living together, mutual agreement to be married, and holding themselves out as married in public. Living together goes beyond sharing a residence; it implies a spousal relationship rather than a roommate situation. The mutual agreement to be married signifies that both parties intend to be married and have consented to the arrangement. Finally, holding themselves out as married entails publicly presenting themselves as a married couple. This may include filing joint tax returns, owning property together, having joint bank accounts, or referring to each other as spouses in official documents.
Same-sex couples have the same legal right to establish a common-law marriage. However, they may face challenges gathering the necessary evidence due to historical discrimination and legal restrictions. As a result, judges are encouraged to take a broader view when assessing evidence of a same-sex common-law marriage.
If a couple lives in a state that does not recognise common-law marriage, they may still establish one if they previously resided in a common-law state and can provide written documentation as proof. Seeking legal advice from a family law attorney is advisable to understand the specific requirements and laws in their state.
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Mutual agreement
Verbal affirmations are essential in expressing the couple's intent to be married. These affirmations can be made to friends, family, and the wider community, indicating that the couple considers themselves spouses. Joint financial decisions also play a role in demonstrating mutual agreement. This includes sharing finances, making joint purchases, and planning for the future as a married couple. Legal documents, such as affidavits, property deeds, or other official documents signed by both partners, further solidify the mutual agreement. These documents serve as written proof of the couple's intention to be legally recognised as spouses.
The specific requirements for proving mutual agreement may vary depending on the state or country. For example, in Texas, a common-law marriage is legally referred to as an "informal marriage" and is recognised under the Texas Family Code. To establish a mutual agreement in Texas, both individuals must live together as spouses and represent themselves as a married couple to the public, in addition to agreeing that they are married. Other states and countries may have their own unique criteria for recognising common-law marriages.
It's important to note that not all jurisdictions permit common-law marriage. However, those that do not recognise it may still respect the validity of such marriages lawfully entered into in another state or country. Same-sex couples may also face additional challenges in gathering evidence to prove their relationship qualifies as a common-law marriage due to historical discrimination and legal restrictions.
To summarise, mutual agreement in a common-law marriage means both parties explicitly agreeing to be married and presenting themselves as such to the public. This agreement is demonstrated through verbal affirmations, joint financial decisions, and legal documentation. The specific requirements and recognition of common-law marriages vary by jurisdiction, so it is important to understand the laws in one's state or country.
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Previous marriages
To prove a common-law marriage, couples must demonstrate that they meet the requirements of a valid common-law marriage in their state. This includes satisfying general marriage requirements, such as both spouses being at least 18 years old, having the mental capacity to understand the commitment, and not being married to anyone else.
In the context of previous marriages, if one partner was previously married and is now widowed or divorced, they can provide the date of their former spouse's death or the date of their divorce. This information can be included in a personal affidavit, which serves as evidence of a common-law marriage. This affidavit should also include details such as the date and location where the couple mutually agreed to become spouses and any other information that helps demonstrate a spousal relationship.
Additionally, friend and family affidavits can be used to support the claim of a common-law marriage. These affidavits should include details such as how the person knows the couple, the length of time the couple has lived together, and any observations that indicate a marital relationship.
It is important to note that the requirements for common-law marriage vary by state, and not all states recognize common-law marriage. Therefore, it is advisable to consult with a family law attorney to understand the specific requirements and laws in your state.
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Frequently asked questions
A common-law marriage is an informal marriage without a marriage license or certificate. It is fully recognized in seven states and the District of Columbia in the US.
To prove a common-law marriage, you must show evidence by providing certain documents. These may include an affidavit, property deed, joint bank account statements, or any other official document signed by both partners declaring their intention to marry.
Yes, other ways to prove a common-law marriage include having joint ownership of property, registering as husband and wife on applications, executing a will referring to your partner as your spouse, exchanging rings, and filing joint tax returns.
If your state does not recognize common-law marriage, you may still be able to establish one if you previously lived in a common-law state and can provide written documentation as proof.
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