Anaya Nolan
The origins of common-law marriage are uncertain. It is argued that it is the original form of marriage, in which a couple cohabits, presents themselves as a married couple, and otherwise behaves as a married couple. Common-law marriage is not recognized in all 50 states, and the majority of states have taken steps to abolish it as a legal status. Common-law marriages are still recognized in a few states, including Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia, while Utah, South Carolina, and New Hampshire have limited recognition.
| Characteristics | Values |
|---|---|
| Origin | Arguably the original form of marriage. |
| Origin | The term has numerous origins, but in the US it was popularized during frontier times when it was much harder to obtain official marriage documentation. |
| Origin | It is sometimes mistakenly claimed that, before the Marriage Act 1753, cohabiting couples in Britain would enjoy the protection of a "common-law marriage". |
| Origin | Common-law marriage in the US appears to have originated in the harsh conditions of colonial America, where there were few clerics or civil officials to conduct ceremonial marriages. |
| Current recognition | Common law marriage is recognized in very few states, including Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, Utah, and the District of Columbia. |
| Current recognition | Some states have limited recognition, including Alabama, Florida, Georgia, Indiana, Ohio, and Pennsylvania. |
| Current recognition | The Territory of Guam and the Commonwealth of the Northern Mariana Islands do not recognize common-law marriage. |
| Requirements | Couples must meet specific requirements, such as exchanging words of intent to be married and holding themselves out as husband and wife to others. |
| Requirements | Couples must live together for a certain period, typically seven or ten years. |
| Requirements | Couples must present themselves as a married couple to their community and use the same last name. |
| Requirements | Couples must maintain joint finances, such as leases, mortgages, bank accounts, and credit cards. |
| Requirements | Neither partner must be married to anyone else. |
| Judicial proceedings | Common law marriages are subject to the same formal judicial proceedings as traditional marriages when it comes to divorce or separation. |
| Judicial proceedings | There is no such thing as a "common law divorce," and divorce must be done by statutory law in all jurisdictions. |
| Judicial proceedings | Common law spouses who meet their state's requirements are eligible for most financial benefits, including Social Security and tax benefits. |
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What You'll Learn
Common law marriage origins
The origins of common-law marriage are uncertain. It is arguably the original form of marriage, in which a couple takes up residency together, holds themselves out to the world as a married couple, and otherwise behaves as a married couple. It has been gradually abolished in Western nation states throughout the centuries.
In the United States, common-law marriages are still recognized in some states, including Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia, while Utah, South Carolina, and New Hampshire have limited recognition of common-law marriage. Each state has different requirements for a long-term relationship to qualify as a common-law marriage. For example, in Texas, a couple must live together for at least three years and share finances to be considered married by common law.
The term "common-law marriage" has numerous origins, but in the US, it was popularized during frontier times when it was much harder to obtain official marriage documentation. Instead, some states opted to consider a woman and man married if they lived together for a certain length of time and essentially acted as husband and wife.
It is sometimes mistakenly claimed that, before the Marriage Act of 1753, cohabiting couples in Britain would enjoy the protection of a "common-law marriage". In fact, neither the name nor the concept of "common-law marriage" was known at this time. Far from being treated as if they were married, couples known to be cohabiting risked prosecution by the church courts for fornication. The Marriage Act of 1753 also did not apply to Britain's overseas colonies at the time, and common-law marriages continued to be recognized in what became the United States and Canada.
Although it is claimed that common-law marriage in the US originated in English common law, this institution in the United States appears to have originated in the harsh conditions of colonial America, where the presence of relatively few clerics or civil officials necessitated a substitute for ceremonial marriage. The need expanded as settlers moved into the sparsely populated regions of the West.
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Common law marriage requirements
The requirements for common-law marriage vary depending on the state or jurisdiction in which the marriage takes place. Common-law marriage is not recognized in all 50 states of the US, and it is not considered a valid form of marriage in many places.
However, in states that do recognize common-law marriage, some general requirements include:
- Living together: While there is no statutory requirement for the length of time a couple needs to live together, generally, the longer a couple lives together, the stronger their case is for common-law marriage.
- Legal right or "capacity" to marry: Both partners must have the legal capacity to marry, which usually means they must be at least 18 years old, of sound mind, and not already married to other people.
- Intent: Both partners must intend to be married and hold themselves out as husband and wife to others. They must behave as a married couple and present themselves as such to friends, family, and the public.
Some states that recognize common-law marriage include Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, Utah, and the District of Columbia. However, it's important to note that each state has its own specific guidelines and requirements for common-law marriage. For example, in Texas, same-sex couples can enter into a common-law marriage, and there is no requirement for the couple to be together for a specific period before declaring themselves in a common-law marriage.
It's always advisable to refer to the specific laws and requirements of the state or jurisdiction in question to understand the precise criteria for common-law marriage.
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Common law marriage recognition in the US
The recognition of common-law marriage in the US varies across different states and jurisdictions. As of 2022, common-law marriages are 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 Territory of Guam and the Commonwealth of the Northern Mariana Islands do not recognise common-law marriage. However, the Commonwealth of the Northern Mariana Islands might recognise customary marriage.
The recognition of common-law marriage varies due to different state definitions and requirements. For instance, in Texas, couples can register their informal marriage by filing a declaration with the county clerk. In Utah, a petition for an "unsolemnized marriage" must be filed while the couple is still together or within one year of their separation. In New Hampshire, common-law marriages are rarely recognised and are only considered for inheritance purposes.
The origins of common-law marriage are uncertain, but it is arguably the original form of marriage, where a couple cohabits, presents themselves as a married couple, and behaves as one. It is believed that common-law marriage in the US originated in colonial America, where there were few clerics or civil officials to conduct ceremonial marriages.
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Common law marriage in colonial America
The origins of common-law marriage are uncertain. It is arguably the original form of marriage, where a couple cohabits, holding themselves out as a married couple, and otherwise behaving as one. Over time, common-law marriage has been gradually abolished in Western nation-states.
In colonial America, the harsh conditions and the presence of relatively few clerics or civil officials necessitated a substitute for ceremonial marriage. As settlers moved into sparsely populated regions of the West, the need for common-law marriage expanded. It is important to note that the concept of common-law marriage did not originate in Britain, as some have claimed. Before the Marriage Act of 1753, cohabiting couples in Britain did not enjoy the protection of common-law marriage and risked prosecution by the church courts for fornication. This act did not apply to Britain's overseas colonies, which later became the United States and Canada, where common-law marriages continued to be recognized.
In the United States today, common-law marriage is recognized in a limited number of states, including Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, Utah, and the District of Columbia. The specific requirements vary by state, but generally, couples must live together for a certain period and hold themselves out as a married couple to be considered married under common law.
Common-law marriage is not without its complexities and variations across states. While most states do not legally recognize it, they will typically acknowledge these unions if they are contracted in a state that does recognize them. For example, California does not recognize common-law marriage, but it would acknowledge a common-law marriage from Texas, where it is legal. Additionally, common-law marriage matters upon death or separation, impacting the surviving partner's benefits and the splitting of assets.
To summarize, common-law marriage in colonial America arose from the need for an alternative to ceremonial marriage due to the scarcity of clerics and civil officials. While it is no longer widely recognized in the United States, a handful of states continue to uphold it, each with its own specific requirements and guidelines.
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Common law marriage misconceptions
Common-law marriage, also known as non-ceremonial marriage, is a marriage that occurs when two eligible people who intend to be married live together and hold themselves out to the world as a married couple. It is important to note that not all jurisdictions permit common-law marriage, and misconceptions about this type of marriage are prevalent. Here are some common misconceptions about common-law marriage:
Misconception: Cohabiting for a certain period of time, such as seven years, creates a common-law marriage
One of the most pervasive myths about common-law marriage is that it automatically occurs when partners live together for a certain period, often believed to be seven years. This misconception may have arisen from the idea that cohabitation for a moderate period was once considered sufficient for a marriage to be recognised in medieval Europe. However, states do not have a specific time requirement for common-law marriage. While some states that recognise common-law marriage do have a cohabitation requirement, there is no magic number of years that automatically triggers a common-law marriage status.
Misconception: Common-law marriage is recognised in all 50 states in the US
This is another common misconception. Common-law marriage is only recognised in a small number of states and has been abolished in many others. As of 2022, common-law marriages are recognised in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire have limited recognition. Additionally, some states, like Alabama, once recognised common-law marriage but have since moved to abolish it. Therefore, it is crucial to check the laws of your specific state to understand whether common-law marriage is recognised.
Misconception: Common-law marriage grants the same rights as a "regular" marriage
While a common-law marriage is considered as legally valid as a ceremonial marriage in states that recognise it, it can be challenging to prove its existence. This distinction becomes crucial when it comes to legal rights, especially during a separation or the death of a partner. In the case of a breakup, a couple with a common-law marriage must obtain a traditional divorce, which can be complicated if the marriage is difficult to prove. Similarly, upon the death of one partner, the surviving partner's eligibility for benefits may depend on whether their union is recognised as a marriage.
Misconception: Common-law marriage existed in Britain before the Marriage Act of 1753
It is sometimes claimed that before the Marriage Act of 1753, which required marriages to be performed by a priest of the Church of England, cohabiting couples in Britain enjoyed the protection of a common-law marriage. However, this is a misconception. The term "common-law marriage" and its concept were not known at that time in Britain. Instead, couples known to be cohabiting risked prosecution by the church courts for fornication.
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Frequently asked questions
A common-law marriage is a legally recognised marriage between two people who haven't purchased a marriage license or engaged in a ceremony overseen by an officiant.
Common-law marriages are 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 origins of common-law marriage are uncertain. It is sometimes claimed that common-law marriage in the US originated in English common law, but this appears to have originated in colonial America, where there were few clerics or civil officials to conduct ceremonial marriages.
