Anaya Nolan
Common-law marriage is a way for couples to be legally married without a formal ceremony. However, the term common-law marriage is often used incorrectly to describe cohabitation or other legally formalized relations. Only eight states in the U.S. (plus Washington, D.C.) allow new common-law marriages, but other states may recognize older common-law marriages. To be considered a common-law marriage, the relationship must be significant and both partners must intend to be married. Judges will consider a couple's actions and how they present themselves to others to determine if a common-law marriage exists.
| Characteristics | Values |
|---|---|
| Number of states that recognize common-law marriages in the US | 8 (plus Washington, D.C.) |
| States that recognize common-law marriages | Colorado, Iowa, Rhode Island, Kansas, Oklahoma, Texas, Alabama (before 2017), Georgia (before 1997) |
| Requirements | Both partners must mutually agree to be married, present themselves as a married couple to the public, and cohabitate |
| Evidence | Tax and bank information (e.g., joint tax returns, bank accounts, credit cards), lease agreements, insurance policies, written agreements |
| Same-sex marriage | Recognized |
| Dissolution | Couples must file for divorce |
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What You'll Learn
Common-law marriage requirements
Common-law marriage, also known as marriage without formalities or an informal marriage, is recognised in a minority of US states. These include Colorado, Iowa, Rhode Island, Kansas, Oklahoma, and Texas. Some other states recognise common-law marriages that were established before a certain date.
If one partner dies before the common-law marriage is established, the surviving partner must provide evidence of the marriage to inherit property or receive benefits. This can include documents such as lease agreements, tax returns, and insurance policies, as well as testimony from family and friends.
In Texas, couples can register their common-law marriage by filing a declaration with the county clerk. This may be useful in the event of a dispute, as it can be challenging to prove the existence of a common-law marriage without a formal record.
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Proving your common-law marriage
Proving a common-law marriage is important when a relationship is ending (divorce) and in determining inheritance rights. If you want to take advantage of the rights of a married couple, you will typically need to prove that:
- You established your marriage relationship while living in a state that recognized common-law marriages.
- Both of you intended for your relationship to be a marriage.
- You lived together and held yourself out in public as a married couple.
The exact evidence you'll need to prove a common-law marriage will depend on your state's laws. However, some examples of evidence that may help to prove a valid common-law marriage include:
- An agreement or other official documents signed by both partners declaring your intention to marry.
- Documents showing that you or your children assumed your partner's last name.
- Documents showing that you lived together, such as a lease.
- Documents showing that you told others that you were married, such as a social media post.
- Documents showing that you included your partner on your health insurance.
- Documents showing that you made your partner the beneficiary of a life insurance policy.
If there is a dispute as to whether a common-law marriage existed, it may be necessary to go to court to prove the marriage. An experienced family lawyer can help you understand your state's laws regarding common-law marriages and guide you in gathering evidence and documentation to support your position.
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Common-law marriage in different states
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 is currently only recognised in a handful of U.S. states. These include Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia.
Some states, such as Alabama and Georgia, previously recognised common-law marriages but now only acknowledge marriages that were established before a certain date (2017 and 1997, respectively). Other states that recognise common-law marriages that existed prior to a specific date include Ohio (before September 2003), Idaho (before 1996), and Pennsylvania (before October 1991).
The requirements for a common-law marriage to be recognised vary from state to state. Generally, both partners must intend to be married and share their lives in a committed, intimate relationship with all the legal and social responsibilities of marriage. Conduct that can demonstrate this intention includes presenting yourselves as a married couple to family, friends, and the community, and referring to each other as "husband," "wife," or "spouse" in both informal and formal contexts. While cohabitation is not always necessary, it would be challenging to convince a judge of the intention to be married if the couple does not live together.
It is important to note that if a common-law marriage is recognised in one state, it must be recognised by all other states, even if they do not typically acknowledge common-law marriages. This is due to the full faith and credit clause in the United States Constitution, which prevents states from blocking each other based on contradictory laws.
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Alternatives to common-law marriage
Domestic Partnerships
Domestic partnerships, also known as civil unions, are a popular alternative to marriage for couples, providing many of the same benefits. Domestic partnerships are legal relationships under state laws, providing committed, unmarried couples who are living together with certain guaranteed rights. For example, if something happens to your partner, you automatically inherit their assets, get hospital visitation rights, and can add your partner to your health plan.
Cohabitation Agreements
In a cohabitation agreement, the couple decides what rights and obligations each partner owes to each other. These agreements are contracts negotiated between a couple and can be as narrow or broad as desired.
Marriage
Marriage is the final alternative to common-law marriage. Marriage is primarily regulated by state laws, not federal laws, so each state will have a different definition. To get married, one must obtain a marriage certificate from the local government.
It is important to note that the benefits of each alternative vary by state, so it is important to consult a legal professional to ensure your relationship is adequately protected.
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Benefits of common-law marriage
Common-law marriage refers to a legal framework in which a couple who lives together for an extended period is seen as legally married, even without a formal wedding ceremony or marriage license. While common-law marriage is not recognized in all states, it does offer several benefits in the states that do recognize it. Here are some advantages of common-law marriage:
Legal Recognition
One of the primary benefits of common-law marriage is that it provides legal recognition of a couple's relationship, granting them the same rights and responsibilities as formally married couples. This recognition can be especially important for same-sex couples in states that previously did not allow same-sex marriage.
Financial Benefits
Common-law spouses may enjoy various financial benefits, such as tax advantages, including exemptions from gift taxes and deductions for mortgage interest. They may also be eligible for employment perks like family leave and access to retirement accounts or pension plans. Additionally, common-law spouses can benefit from combining health insurance policies, potentially reducing premiums.
Inheritance Rights
Common-law spouses have the same inheritance rights as formally married couples. They can inherit their spouse's property with a valid will and are eligible for spousal retirement and survivor benefits. However, it is important to note that in the absence of a will, the surviving spouse may not be entitled to any inheritance.
Social Security Benefits
If a couple meets the Social Security Administration's (SSA) requirements for a common-law marriage, they may qualify for spousal Social Security benefits, including disability benefits and survivor benefits.
While common-law marriage offers these benefits, it is important to note that it also has certain drawbacks and can create legal and financial complexities if not carefully documented and planned. It is always advisable to understand the specific requirements and legal implications in your state before relying on common-law marriage for rights and protections.
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Frequently asked questions
A common-law marriage is a legally recognised marriage between two individuals without a marriage licence or ceremony.
Common-law marriage is not recognised in all countries or states. In the US, only eight states and Washington, D.C. allow new common-law marriages. These include Colorado, Iowa, Kansas, Rhode Island, Oklahoma, and Texas. Other states may recognise common-law marriages from before a certain date or for limited purposes. Canada and Australia do not recognise common-law marriage.
Proving a common-law marriage can be complicated and uncertain. It is best to consult a lawyer or the party requesting proof to understand the specific requirements. Typically, couples must provide evidence of their intention to be in a common-law marriage, such as presenting themselves as a married couple to the public and sharing a committed, intimate relationship.
A common-law marriage that meets state requirements is as valid and legally binding as a formalised marriage. Benefits include flexibility and avoiding traditional institutions.
Dissolving a common-law marriage is similar to ending a formal marriage. Couples must file for divorce, and if court proceedings are not filed within two years of separation, a common-law marriage is presumed to have never existed.
