Gavin Howe
Kansas is one of the minority of states that recognizes common-law marriages. However, couples must meet specific requirements to establish a valid union and have their relationship legally recognized as a common-law marriage. These requirements include that both parties must be unmarried, not closely related, and be of sound mind and body, as well as being at least 18 years old. Both parties must also have a present agreement to marry, which can be inferred from their behavior and mutual recognition of each other as spouses. Additionally, the couple must hold themselves out as a married couple to their community, which can be demonstrated in various ways, such as referring to each other as spouses, sharing a last name, and financially supporting each other. While cohabitation and having children together can contribute to a couple's case, they are not required for a common-law marriage to be legally recognized in Kansas.
| Characteristics | Values |
|---|---|
| Recognition of common-law marriage | Kansas does recognize common-law marriage. |
| Legal requirements | Both parties must be at least 18 years old, unmarried, not closely related, and have the mental and physical capacity to marry. |
| Present agreement to marry | Both parties must have a present intention to be married, which can be inferred from their behavior and mutual recognition as spouses. |
| Holding out as spouses | The couple must publicly hold themselves out as married, such as referring to each other as spouses, sharing a last name, and emotionally and financially supporting each other. |
| Proof of common-law marriage | Affidavit of Common Law Marriage, joint tax returns, joint bank accounts, deeds with both names, etc. |
| Legal rights and responsibilities | Common-law marriages are entitled to the same legal rights and responsibilities as formally recognized marriages, including property inheritance, healthcare benefits, and medical decision-making. |
| Termination of common-law marriage | Common-law marriages can only be terminated by divorce or death, and the couple must go through legal divorce proceedings to divide property and address custody and support matters. |
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What You'll Learn
Kansas recognises common-law marriage
Kansas does recognise common-law marriage, but the current recognition is based on legal precedents established through court decisions, not explicit laws. This means that the requirements to prove a common-law marriage can change over time as new cases arise and legal interpretations evolve.
To prove a common-law marriage in Kansas, several requirements must be met. Firstly, both parties must have the capacity to marry, meaning there are no legal impediments such as being closely related, being married to someone else, or not meeting the minimum age requirement of 18 years old. Secondly, both parties must have a "present agreement" to marry, which means they intend to be spouses in the present, not just in the future. This agreement can be inferred from their behaviour and the way they mutually recognise each other as spouses. Thirdly, the couple must "hold each other out" to their family, friends, and the community as a married couple. This can be demonstrated in various ways, such as referring to each other as spouses, having a family together, sharing a last name, emotionally and financially supporting each other, and presenting themselves as a married couple to the public.
It is important to note that simply living together or having children together is not sufficient to establish a common-law marriage. The relationship must embody an intent to be part of a marital relationship, and both parties must consent to be married. If the relationship is based on friendship or uncertainty about marriage, it does not qualify as a common-law marriage.
To provide evidence of a common-law marriage, various documents can be used, such as filing a joint tax return, having a joint bank account, owning property together, or having the same last name. Additionally, an affidavit of common-law marriage, which is a sworn statement, can be filled out to name each other as dependents.
Once a common-law marriage is established in Kansas, the couple is entitled to the same legal rights and responsibilities as couples in formally recognised marriages. These rights include the right to inherit property, access health care benefits, and make medical decisions for each other. In the event of a separation or divorce, the couple must go through the same legal process as formally married couples to divide their property and address custody and support matters if they have children.
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Proving common-law marriage in court
Kansas does recognize common-law marriages, but the onus of proving such a marriage lies with the person asserting it. The recognition of common-law marriage is based on legal precedents established through court decisions, not explicitly defined in laws. These precedents guide how the courts interpret and apply the requirements for common-law marriage.
To prove a common-law marriage in court, several requirements must be met. Firstly, both parties must be eligible to marry, meaning there are no legal impediments to the marriage. This includes ensuring that neither party is married to someone else, they are not closely related, and they meet the minimum age requirement of 18 years. Additionally, both parties must have the mental and physical capacity to enter into a marriage.
Secondly, there must be a "present agreement" to marry. This agreement does not need to be in writing but can be inferred from the couple's behavior and their mutual recognition of each other as spouses. They must intend to be spouses in the present, not just sometime in the future.
Thirdly, the couple must "hold each other out" as a married couple to their family, friends, and the wider community. This can be demonstrated in various ways, such as referring to each other as spouses, sharing a last name, emotionally and financially supporting each other, and presenting themselves as a married couple to the public. Living together and having children together can also contribute to the case but are not sufficient on their own.
In court, various forms of evidence can be presented to prove a common-law marriage. This may include affidavits, deposition testimony, exhibits, and other documentation. For example, exchanging rings, referring to each other as husband and wife, identifying each other as next of kin, and jointly filing taxes or owning property can all be compelling evidence of a common-law marriage.
It is important to note that the requirements for a common-law marriage to be recognized can change over time, so staying updated on the latest developments is crucial. Seeking legal advice is highly recommended to ensure that all the necessary steps are taken to establish a valid common-law marriage.
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Legal rights of common-law spouses
Kansas is one of seven states that legally recognize common-law marriages. However, the recognition of common-law marriage is based on legal precedents established through court decisions, not explicitly defined in laws. This means that the requirements for a common-law marriage to be recognized could change over time. Therefore, staying updated on recent developments regarding common-law marriage in Kansas is essential.
To be considered common-law married in Kansas, a couple must meet the following requirements:
- Both parties must be at least 18 years old and have the mental capacity to enter a marriage.
- There should be no legal barriers to marriage, for example, a previous marriage that has not been legally dissolved, or the spouses being closely related.
- The couple must mutually consent to be married and "hold themselves out as spouses" to the public. This can include referring to each other as spouses, having a family together, sharing a last name, and emotionally and financially supporting each other and their families.
- There must be a "present agreement" to marry, which can be inferred from the behavior of the two people involved or the way in which they mutually recognize each other as spouses.
Once a common-law marriage is established in Kansas, the couple is entitled to the same legal rights and responsibilities as couples in formally recognized marriages. These rights include:
- The right to inherit property from their spouse.
- Access to health care benefits.
- The right to make medical decisions for each other.
- In the case of a separation or divorce, the couple must go through a legal process to divide their property and address custody and support matters if they have children.
It is important to note that cohabitation is not required for a common-law union to be legally recognized in Kansas. However, living together may help demonstrate a shared life as a married couple and contribute to a case for common-law marriage. If needed, the Attorney General for Kansas has prepared an Affidavit of Common Law Marriage, which is a sworn statement that spouses can fill out to name each other as dependents.
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Requirements for a valid common-law marriage
Kansas does recognize common-law marriages, but it is crucial to meet specific requirements and stay updated on the established guidelines. Here are the requirements for a valid common-law marriage in Kansas:
Capacity to Marry
Both parties must have the capacity to marry, meaning there must be no legal impediment or bar to the marriage. This includes the age requirement—both individuals must be at least 18 years old—and neither can be married to someone else. Additionally, the spouses cannot be closely related and must possess the mental and physical ability to marry.
Present Agreement to Marry
The couple must have a "present agreement" to marry, which means they intend to be spouses in the present, not just sometime in the future. This agreement doesn't need to be in writing or take any particular form. Instead, it can be inferred from their behavior and how they mutually recognize each other as spouses.
Holding Out as Spouses
The couple must "hold each other out" as spouses to their family, friends, and the community. They should present themselves as married to the public, which can be demonstrated in various ways. This includes referring to each other as spouses, sharing a last name, having a family together, and emotionally and financially supporting each other.
Affidavit of Common Law Marriage
While not mandatory, one mechanism to show a common-law marriage is by completing an Affidavit of Common Law Marriage. This is a sworn statement prepared by the Attorney General for Kansas, which allows couples to name each other as dependents.
It's important to note that simply living together or having children together is not sufficient to establish a common-law marriage. The relationship must embody an intent to be part of a marital relationship, and both parties must agree on the terms of their relationship and follow through on those agreements.
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Ending a common-law marriage
In Kansas, there are specific requirements that must be met for a common-law marriage to be recognized as valid. These requirements include: both partners must be at least 18 years old and capable of consenting to the marriage, the couple must agree to be married and hold themselves out as a married couple to the public, and they must cohabit and share a life together. If these requirements are met, the common-law marriage is recognized as legally valid and granted the same rights and protections as a licensed marriage.
Now, when it comes to ending a common-law marriage in Kansas, the process is similar to that of a traditional divorce. Here are the steps that need to be followed:
Firstly, it is important to understand that even though Kansas recognizes common-law marriages, it does not have specific laws for their dissolution. This means that the process of ending a common-law marriage will follow the same legal process as a divorce. You will need to file a petition for divorce with the district court in the county where you or your spouse resides. One of the parties must be a resident of Kansas for at least 60 days before filing for it.
In your petition, you will need to provide information about your common-law marriage, including the date and place it was established, and any relevant details about shared property, children, and other matters that need to be addressed in the divorce. Serving your spouse with the divorce papers is an important step, you can do this through a sheriff's deputy or a private process server. They will need to sign and return the served documents to the court.
As with any divorce, the court will need to make decisions regarding property division, child custody, and support. If you and your spouse can reach agreements on these matters through mediation or negotiation, the process will be faster and less costly. If you cannot agree, the court will make these decisions for you based on what it believes to be fair and in the best interests of any children involved. Finally, once all issues have been resolved, the court will issue a divorce decree, officially ending your common-law marriage. You and your former spouse will then be free to marry other people if you choose.
It is always advisable to seek legal guidance when ending a common-law marriage, as it can be a complex process with important consequences. An experienced family law attorney can help you navigate the specific laws and requirements in Kansas and ensure your rights are protected.
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Frequently asked questions
Both parties must be unmarried, not closely related, and be 18 or older. They must have the mental and physical capacity to marry and must have a "present agreement" to marry. This means that they intend to be spouses in the present and not just in the future. They must also "hold themselves out" to their community as a married couple.
Proof of a common-law marriage can include presenting yourself and being perceived by others as a married couple. This can be shown through behaviour, such as referring to each other as spouses, having a family together, sharing a last name, and emotionally and financially supporting each other. Additionally, legal documents, such as filing joint tax returns, having a joint bank account, or owning property together, can also be used as evidence. In the case of a dispute, a court may need to determine the existence of a common-law marriage.
Yes, couples in a recognised common-law marriage in Kansas have the same rights as traditionally married couples. These rights include the ability to inherit property from each other, access health care benefits, and make medical decisions on each other's behalf. In the event of a separation or divorce, common-law marriages are also subject to the same legal processes as traditional marriages.
No, a common-law marriage can only be terminated through a legal divorce or the death of one of the spouses, similar to a traditional marriage.
