Cecily Zamora
Common-law marriage is a way for couples to marry without a formal ceremony or marriage license. However, it is not recognized in all jurisdictions. In the US, only a handful of states recognize common-law marriage, including Texas, Colorado, and Alabama. To avoid entering into a common-law marriage, it is important to understand the requirements for such a marriage in your jurisdiction. Generally, it is recommended that couples do not hold themselves out as married, for example, by filing joint tax returns, taking on the same last name, or referring to each other as husband or wife.
| Characteristics | Values |
|---|---|
| Cohabitation | Living together is a requirement for common-law marriage, but the time period can be as short as a day. |
| Agreement to be married | Both parties must agree to be married and act as though they are married. |
| Holding yourself out as married | Avoid referring to your partner as your spouse, husband, wife, or domestic partner. |
| Filing joint tax returns | Do not file federal tax returns as a married couple. |
| Joint property or debts | Do not title property or enter debts jointly using the same last name. |
| Marriage-like benefits | Do not sign an affidavit of common-law marriage to obtain health insurance or other marriage-like benefits. |
| Jurisdiction | Common-law marriage laws vary by state and country. Only a handful of states in the US recognize common-law marriage. |
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What You'll Learn
Understand the rules in your jurisdiction
Understanding the rules in your jurisdiction is crucial to avoiding common-law marriage. This type of marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is not recognized in all jurisdictions.
In the United States, only a handful of states recognize common-law marriages. To establish a common-law marriage in Texas, three requirements must be met simultaneously: both parties must consent to be married, live together, and represent themselves to others as married. In Colorado, both opposite-sex and same-sex couples can enter into a common-law marriage if they view and hold themselves out as a married couple. In Utah, a couple must agree to the marriage, and their marriage must be generally known by others for it to be recognized as a "marriage not solemnized."
In Canada, while some provinces may grant couples in marriage-like relationships certain rights and responsibilities akin to marriage, they are not legally considered married. Similarly, in Australia, the term "de facto relationship" is used for unmarried couples living in certain domestic circumstances, and while these relationships are recognized under the Family Law Act, they are not considered marriages.
In Europe, Scotland was the last jurisdiction to abolish common-law marriage in 2006, with the passage of the Family Law (Scotland) Act. This law ended the recognition of "marriage by cohabitation with habit and repute," which required couples to have lived together continuously for more than 20 days and to be generally regarded as husband and wife by their community.
To avoid being considered in a common-law marriage, it is essential to understand the specific requirements in your jurisdiction and refrain from fulfilling them. This may include not holding yourself out as married, not introducing your partner as your spouse, keeping separate finances, and explicitly agreeing with your partner that you do not intend to be considered married under common law.
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Avoid cohabitation
Cohabitation, or living together as a couple without being legally married, has become increasingly common in Western countries since the late 20th century. In the United States, there has been a notable increase in unmarried couples cohabiting over the past few decades. While cohabitation can offer financial benefits and a way to deepen the relationship, there are also potential pitfalls to be aware of, especially if one wants to avoid a common-law marriage.
Firstly, it is important to understand that common-law marriage is not recognized in most states or countries. In the US, only a handful of states, including Texas, Alabama (until 2017), and a few others, recognize common-law marriage. Therefore, if you move to a state or country that does not acknowledge common-law marriage, your union may no longer be considered binding.
To avoid a common-law marriage, it is crucial to understand the specific requirements in your jurisdiction. In Texas, for example, there are three requirements that must exist simultaneously: firstly, both parties must be over 18, unrelated, and not currently married to someone else; secondly, there must be an agreement to be married, which can be proven by living together as a married couple and representing themselves as such to others; and thirdly, both parties must have the capacity to consent to marriage.
To actively avoid a common-law marriage, one should not hold themselves out as being married. This includes introducing your partner as your spouse, referring to them as your husband or wife, or filing tax returns jointly. Additionally, keeping separate finances, not sharing bank accounts or credit cards, and maintaining separate financial records can help avoid any implications of a common-law marriage. Having a conversation with your partner and agreeing that you do not wish to be considered married under common law is also essential.
In summary, while cohabitation is a common practice for many couples, it is important to be aware of the potential implications of a common-law marriage, especially in states or countries that recognize such unions. By understanding the specific requirements and taking proactive steps to avoid meeting those requirements, one can effectively sidestep the designation of a common-law marriage.
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Don't act like a married couple
To avoid a common-law marriage, it is important not to act like a married couple. Here are some ways to ensure you don't act like a married couple and thus avoid any potential common-law marriage pitfalls:
Firstly, do not introduce your partner as your spouse, husband, or wife. Routinely refer to your partner as your boyfriend, girlfriend, or significant other. This is an easy way to ensure that you are not holding yourself out as married in the eyes of others.
Secondly, avoid behaving in a way that could be perceived as 'married couple behaviour'. This includes filing joint taxes, changing your names, sharing bank accounts or credit cards, and generally acting in a way that suggests you are financially dependent on each other. Keep your finances separate and make sure to keep records of your separate financial dealings.
Thirdly, be mindful of how you spend your time. Spending too much time together could be perceived as acting like a married couple. Ensure you maintain your independence and spend time with other friends and family, pursuing your own interests and hobbies.
Finally, be explicit about your intentions. Have an open conversation with your partner and agree that you do not want to be considered married under common law. You could even consider a written agreement to this effect.
By following these steps, you can avoid acting like a married couple and thus reduce the risk of any unintended common-law marriage implications.
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Keep finances separate
Keeping finances separate is a key step in avoiding a common-law marriage. While the rules vary by jurisdiction, it is generally recommended that you do not share bank accounts or credit cards with your partner. This includes filing taxes jointly, which can be a trigger for common-law marriage in some places.
It is important to be aware of the laws in your state or country, as these can vary widely. For example, in some U.S. states, certain assets are presumed joint in a marriage, and you may still be held legally responsible for your spouse's credit card debt, even if it was in their name only. In community property states, your property will be divided 50/50 upon divorce, whereas in common-law states, it goes by equitable distribution.
To protect your finances, you can consider drawing up a prenuptial agreement, which outlines which current and future assets and debts belong to each person, both during the marriage and in the event of a divorce. While prenups are most often used by wealthy individuals, anyone can create one, and they can be useful for keeping some property separate, such as for children from prior relationships. Similarly, a postnuptial agreement can be drawn up after the marriage has already begun.
Even if you do not intend to marry your partner, it is still a good idea to have a conversation about your financial plans and goals. This can include deciding what will stay separate and what will be combined, as well as how you will handle joint expenses and contribute to shared goals.
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Don't file joint tax returns
Filing joint tax returns is one of the ways to establish a common-law marriage in some states in the US. Common-law marriage is a way for couples to marry without a formal ceremony, and it is only recognized in a few states. While the criteria for common-law marriage vary by state, one of the primary rules is "openly and notoriously" holding out that you are married. Filing a joint tax return serves as evidence of this.
If you wish to avoid a common-law marriage, it is important to understand the rules and requirements in your jurisdiction and refrain from fulfilling them. In addition to not filing joint tax returns, this may include not introducing your partner as your spouse, not referring to them as your husband or wife, and keeping your finances separate.
It is worth noting that common-law marriage is not a trap and requires intent and agreement from both parties. Simply living together for a certain period does not automatically establish a common-law marriage. However, if all the elements of a common-law marriage were present at some point, it may still be considered valid, even if you are no longer living together.
To protect yourself, you can have an open conversation with your partner about your intentions and agree that you do not want to be considered married under common law. You may also consider creating a written agreement that explicitly states your wishes.
It is always recommended to seek professional advice regarding your specific situation to ensure you are taking the necessary steps to avoid a common-law marriage if that is your intention.
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Frequently asked questions
To avoid common-law marriage in the US, do not do the following: introduce your partner as your spouse, refer to them as your husband or wife, file joint tax returns, or take on each other's last names. It is also important to learn what the rules are for common-law marriage in your jurisdiction and not do them.
In Texas, common-law marriage is a legitimate form of marriage, and it can be established without a formal ceremony or marriage license. To avoid it, do not cohabit or live together, do not agree that you are married, and do not represent to others that you are married.
In Colorado, a common-law marriage is established by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship. To avoid it, do not cohabit, do not agree to be married, and do not hold yourself out as married.
In Australia, you only need to cohabit to be considered common-law married. To avoid this, do not live together or share the same address.
