Kara Sears
Common-law marriage is a legally recognised marriage that does not require a marriage license or ceremony. It occurs when two people who are legally capable of being married and intend to be married live together and hold themselves out to the world as a married couple. The requirements for common-law marriage vary depending on the state or country, and not all jurisdictions permit it. In the United States, only a small number of states and the District of Columbia recognise common-law marriages, and each has its own specific requirements. For example, in Colorado, common-law marriage includes living together at the same permanent address and presenting themselves as spouses, while in New Hampshire, common-law marriages are stricter and are very rarely recognised.
| Characteristics | Values |
|---|---|
| Legal recognition | Common-law marriage is not recognized in most states. However, some states do recognize it, including Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, and Utah, as well as the District of Columbia. |
| Prerequisites | A common-law marriage does not require a marriage license or a formal ceremony. |
| Legal capacity | Both partners must be legally capable of getting married, typically requiring them to be at least 18 years old, of sound mind, and not already married. |
| Intent | Both partners must intend to be married and hold themselves out as a married couple to friends, family, and the public. |
| Cohabitation | The couple must live together as a married couple, but the length of time required varies by jurisdiction. |
| Same-sex couples | Same-sex couples can be common-law married. |
| Benefits | Common-law spouses may enjoy benefits such as inheritance rights, social security benefits, and the ability to file joint tax returns in recognizing states. |
| Separation | A common-law marriage must be legally ended through divorce in states where it is recognized. |
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What You'll Learn
Common-law marriage requirements
Common-law marriage, also known as non-ceremonial marriage, is a marriage that occurs without the need for a marriage license or a formal ceremony. While it is often assumed that a couple can become common-law married simply by cohabiting for a long period, the requirements are more complex and vary depending on the state or country.
In the United States, common-law marriage is not recognized by the federal government but is permitted in some states. These include Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, and Utah, as well as the District of Columbia. Each of these jurisdictions has its own specific requirements for common-law marriage, which may include living together at the same permanent address and presenting themselves as spouses. For example, in New Hampshire, common-law marriages are very rarely recognized and are typically only acknowledged when determining inheritance after one party's death.
To be considered common-law married, both partners must have the legal capacity to marry, meaning they must be at least 18 years old, of sound mind, and not already married. They must also intend to be married and hold themselves out to friends, family, and the public as a married couple. This can include referring to each other as "spouse" or "partner," taking the same last name, or changing social media profiles to match.
It is important to note that the recognition of common-law marriage varies widely, and many states in the U.S. have taken steps to abolish it. While some states, like Alabama and Georgia, previously recognized common-law marriages, they now only acknowledge marriages that occurred before a certain date. Other states, like Idaho, Pennsylvania, and South Carolina, only recognize common-law marriages that began before a specified date.
If a couple has a valid common-law marriage in a state that recognizes it, their marriage will generally be respected in other states as well. However, it is always advisable to consult the specific laws and requirements of the relevant state or jurisdiction to understand the legal status of common-law marriage in that particular region.
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States that recognize common-law marriage
In the United States, common-law marriage is a form of irregular marriage that is currently recognised in a handful of states. These include Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, Utah, and the District of Columbia. While Alabama, Florida, Georgia, Indiana, Ohio, and Pennsylvania have not recognised new common-law marriages since 2017, 1968, 1997, 1958, 1991, and 2005, respectively, they still acknowledge common-law marriages that were entered into before these dates.
Each state has specific requirements that must be met for a common-law marriage to be recognised. For example, in Iowa, couples must mutually consent to being married, live together consistently as if they are spouses, and publicly declare their marital bond. In Texas, couples must agree to marry, live together within the state, and represent to others that they are married. Alternatively, they can file a Declaration of Informal Marriage with the County Clerk. In Montana, there is no mandatory time period of cohabitation required, but both parties must have the legal capacity to marry each other, share mutual consent, and validate their union by living together while maintaining a reputation in public as husband and wife.
In states that recognise common-law marriage, couples must meet certain requirements to gain marital status, including living together for a specified amount of time. Common-law couples in these states enjoy many benefits similar to legally married couples, such as the ability to file joint tax returns and receive spousal social security benefits. However, it is important to note that not all states recognise common-law marriage, and the laws can vary, so it is essential to check the specific requirements and regulations in each state.
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Common-law marriage misconceptions
There are several misconceptions surrounding common-law marriage. Firstly, it is a myth that common-law marriage occurs automatically after partners live together for a certain period of time, typically believed to be seven years. This misconception may have arisen from the historical practice of "marriage by cohabitation with habit and repute" in Scotland and a few other jurisdictions, which is distinct from common-law marriage. In reality, common-law marriage is not based solely on the duration of cohabitation but requires the fulfilment of specific criteria.
Another misconception is that common-law marriage is recognised nationwide in certain countries, such as the United States and the United Kingdom. However, the recognition of common-law marriage varies across different states or jurisdictions. For example, in the US, only a small number of states fully recognise common-law marriage, including Colorado, Iowa, Kansas, and Rhode Island. Other states may have abolished it or set a cut-off date for recognition, such as Alabama, Georgia, and Ohio. Similarly, in the UK, Scotland abolished "marriage by cohabitation with habit and repute" in 2006, and common-law marriage is not recognised in other parts of the UK.
Additionally, there is a misconception that common-law marriage applies to any cohabiting couple, regardless of their legal capacity to marry or their intention to be married. On the contrary, for a common-law marriage to be valid, both partners must be legally capable of marrying and must mutually intend to be married. They must also hold themselves out to the world as a married couple, which may involve referring to each other as "spouse" or "partner" and sharing the same last name.
Furthermore, some people believe that common-law marriage provides the same legal rights as a "regular" marriage. While it is true that a common-law marriage is legally recognised and affords similar economic and legal benefits as a licensed marriage, it is important to note that the specific rights and protections may vary depending on the jurisdiction. Additionally, in the event of a split, a common-law marriage may require a traditional divorce process, similar to that of a ceremonial marriage.
Lastly, there is a misconception that a couple can unilaterally decide they are in a common-law marriage. However, it is the legal system, rather than the couple, that ultimately determines whether a common-law marriage exists. Proving the existence of a common-law marriage can be challenging, and it may require providing certain legal documents or meeting specific criteria defined by the jurisdiction.
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Legal rights of common-law spouses
The legal rights of common-law spouses vary depending on the jurisdiction. In some places, common-law marriages are not legally recognised, and common-law spouses have no legal rights or obligations. In other jurisdictions, common-law marriages are recognised and provide spouses with similar rights to those in a formal marriage.
In the United States, some states recognise common-law marriages, while others do not. In states that do recognise common-law marriages, couples may have similar rights to those in a formal marriage, including healthcare benefits, hospital visitation rights, the right to make emergency medical decisions, access to personal records, rights in property division upon separation, child custody rights, spousal support rights, inheritance rights, and tax deductions. However, proving a common-law marriage can be difficult without legal registration or a formal record.
In Canada, while some provinces may extend to common-law couples many of the rights and responsibilities of a formal marriage, they are not legally considered married. They may be legally defined as "unmarried spouses" and treated the same as married spouses for certain purposes such as taxes and financial claims.
In England and Wales, the term "common-law marriage" is used to refer to unmarried, cohabiting heterosexual couples, but this is merely a social usage that does not confer any legal rights or obligations. Unmarried partners may be recognised for certain purposes, such as means-tested benefits, but in most areas of the law, cohabitants have no special rights.
It is important to note that the laws and requirements for common-law marriage can vary by jurisdiction, and individuals should seek legal advice specific to their situation.
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How to end a common-law marriage
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that occurs when two people who are legally capable of being married and intend to be married live together as a married couple and hold themselves out to the world as a married couple.
To end a common-law marriage, the first step is to determine whether your common-law marriage was valid when you entered it. Not all jurisdictions permit common-law marriage, and some states have abolished it. For example, Pennsylvania abolished common-law marriage in 2005, and Scotland abolished "marriage by cohabitation with habit and repute", the last form of irregular marriage, in 2006. If your common-law marriage is legally recognized, you will need to file for divorce to dissolve the relationship officially. This process can be legally complex, especially if you need to prove the validity of the relationship. A common-law divorce attorney can guide you through this process and help you gather evidence. You will need to follow the legal procedures and dissolution proceedings required by the state, including residency and other divorce requirements. All states allow spouses to use a no-fault divorce process, which is usually faster, less expensive, and less stressful than a contested, fault-based divorce. If there are children involved, legal paternity must be established before custody or child support can be determined.
For couples who do not qualify for common-law marriage, a family law attorney can provide advice on creating legal agreements, such as cohabitation contracts or estate plans, to protect their rights. A cohabitation agreement is a legal document that defines each partner's rights and responsibilities in the relationship and can address financial contributions, property ownership, and how assets will be divided if the relationship ends.
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Frequently asked questions
A common-law marriage is a marriage that is legally recognised without the need for a marriage license or ceremony. It is a marriage that occurs when two people who are capable of entering into a legal marriage and intend to be married, live together as a married couple and present themselves as such to the world.
Only 15 states and the District of Columbia recognise common-law marriages. These include Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas and Utah. However, each state has its own requirements that couples must meet, so it is important to check the specific laws of your state.
The requirements for a common-law marriage vary by state, but generally, both partners must have the legal capacity to marry, which usually means being at least 18 years old and not already married. Both partners must also intend to be married and hold themselves out as a married couple to friends, family and the public.
Yes, same-sex couples can be common-law married. States cannot ban same-sex marriages, and case law and federal statutes support this. States that do not have common-law marriages must recognise common-law marriages from other states.
