Gavin Howe
Common-law marriage is a legal scenario that allows couples to be married without a formal wedding ceremony, marriage license, or marriage certificate. Common-law marriage is not recognized nationally and its existence varies from state to state. Today, some states recognize it fully, some have restrictions, and others have abolished it. Common-law marriage is recognized in seven states and the District of Columbia, with each having its own requirements that couples must meet. To be considered a common-law marriage, couples must cohabit, agree to be married, and hold themselves out as married.
| Characteristics | Values |
|---|---|
| Number of states that recognize common-law marriage | 7 states and the District of Columbia (15 states and DC according to another source) |
| Requirements for common-law marriage | Cohabitation, agreement to be married, holding yourself out as married |
| Rights of common-law couples | Same rights as married couples in states that recognize common-law marriage, including financial benefits like Social Security |
| Ending a common-law marriage | Common-law couples must file for divorce in states where the practice is recognized |
| Recognition across states | States that do not recognize common-law marriage must recognize marriages from other states |
| Common-law marriage in other countries | Does not exist in the UK, Australia, or Canada |
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What You'll Learn
Common-law marriage requirements vary by state
In the United States, common-law marriage has existed since colonial times, when America was a colony of England. Common-law marriage is a legally recognised marriage between two people who have not purchased a marriage license or engaged in a ceremony overseen by an officiant.
Today, common-law marriage is only recognised in a handful of states and the District of Columbia. While the specific requirements vary by state, common-law marriages typically require cohabitation, an agreement to be married, and holding oneself out as married to friends, family, and the community. For example, in Colorado, a couple was found to be unmarried because they filed individual tax returns and one party used her maiden name on important documents.
States that do not have common-law marriages cannot deny common-law marriages in other states. This means that if a couple is common-law married in a state that recognises this form of marriage, their marriage is still valid if they move to a state that does not recognise common-law marriages. However, couples in states that do not recognise common-law marriage may not be entitled to any type of support or distribution of assets if they separate.
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Common-law marriage recognition in other 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 survives in only a few US states. 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 number of states that recognise common-law marriages varies across sources, with figures ranging from seven to 15. This variation may be due to the dynamic nature of the law, with some states recognising common-law marriages established before a certain date or for limited purposes. For example, Alabama and Georgia previously recognised common-law marriages but now only recognise marriages before 2017 and 1997, respectively.
The recognition of common-law marriages can be complex, as states have their own unique requirements that couples must meet. These requirements can vary across states and may change over time. Generally, a couple is considered common-law married when they live together for a period (cohabitation) and hold themselves out to friends, family, and the community as "married". However, cohabitation as an unmarried couple is not sufficient to establish a common-law marriage.
In states that allow common-law marriage, couples may have the same rights as those who underwent a formal marriage process. Common-law spouses who meet their state's requirements are eligible for most financial benefits, including Social Security. However, they cannot file joint tax returns with the IRS if they live in a state that does not recognise common-law marriage.
Despite the varying degrees of recognition, all states should acknowledge common-law marriages established in other states that permit them. This is due to the Full Faith and Credit Clause in the United States Constitution, which prevents states from blocking other states' laws that contradict their own.
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Rights of common-law spouses
The rights of common-law spouses vary depending on the laws of the state or jurisdiction in which the marriage takes place. Common-law marriage is a way for couples to be recognised as married without formal procedures, but it is important to note that it is not recognised in all places.
In the United States, some states such as Texas, Colorado, and New Hampshire recognise common-law marriages. In Texas, couples must agree to be married, live as spouses, and be represented as such. Common-law spouses in Texas enjoy rights such as 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. Similarly, in New Hampshire, common-law marriages are recognised posthumously to ensure surviving spouses can inherit without difficulty.
On the other hand, Alabama abolished common-law marriage in 2017, and in Utah, the status of common-law marriage is unclear. While government websites claim it does not exist, other legal sources state that "non-matrimonial relationships" may be recognised as marriage within one year of ending.
In Canada, while some provinces may grant couples in marriage-like relationships similar rights and responsibilities as married spouses, they are not legally considered married. They may be defined as "unmarried spouses" and treated the same as married spouses for certain purposes such as taxes and financial claims.
In England, Wales, and Northern Ireland, the term "common-law marriage" is used socially to refer to unmarried, cohabiting heterosexual couples, but it does not confer any legal rights or obligations on the couple. 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.
Due to the varying recognition and rights associated with common-law marriage, it is important for couples to understand the implications and seek legal advice if necessary to protect themselves legally and personally.
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Proving a common-law marriage
A common-law marriage is a legally recognised marriage between two people who have not purchased a marriage license or engaged in a ceremony. Common-law marriages are currently recognised in seven states and the District of Columbia, though the specific requirements vary from state to state.
To prove a common-law marriage, couples must generally satisfy the same general marriage requirements in their state, such as being at least 18 years old and having the mental capacity to understand the commitment and consequences of marriage. They must also prove that they established their marriage relationship while living in a state that recognised common-law marriages and that they lived together and held themselves out in public as a married couple. This can be done through the use of affidavits, lease agreements, tax returns, insurance policies, and other documents.
For example, in Texas, a common-law marriage may be proved by evidence that the couple lived together in Texas as husband and wife, that they represented themselves to others as being married, and that they had an agreement to be married. Texas law also places a two-year statute of limitations on court proceedings to prove a common-law marriage, meaning that if court proceedings are not filed within two years of the separation, Texas law presumes the marriage never existed unless proven otherwise.
It is important to note that common-law marriages are not recognised in all states, and the requirements for proving a common-law marriage may vary depending on the state. As such, it is always best to consult with an attorney or a family law practice guide for specific information and guidance.
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Ending a common-law marriage
When it comes to ending a common-law marriage, the process can be similar to that of a traditional marriage dissolution. Here are some key things to keep in mind:
As with any marriage, the first step is to consider whether you want to separate or get a divorce. If you're thinking about separation, it's important to be mindful that common-law marriages still confer the same legal rights and responsibilities as traditional marriages. This means that even if you separate, you may still be legally tied to your partner in certain respects. For example, you may need to continue sharing finances or be responsible for each other's debts. Therefore, if you're thinking of separating, it's advisable to seek legal advice to understand your specific rights and options.
If you decide to get a divorce, the process will depend on the laws of your specific state or country. In some jurisdictions, common-law marriages can be ended through an annulment, which declares the marriage invalid from the start. This may be an option if certain requirements were not met when the common-law marriage was established or if there is evidence of fraud or coercion. However, annulments can be difficult to obtain, and not all states offer them as a means to end a common-law marriage.
More commonly, ending a common-law marriage will involve a legal process similar to that of a traditional divorce. This typically includes dividing assets and debts, determining spousal support or alimony, and if children are involved, establishing child custody and support arrangements. The specific process will vary depending on your location, so it's crucial to consult with a local family law attorney who can guide you through the unique requirements and procedures in your area.
As with any divorce, it's important to gather all the necessary documentation, including financial records, property deeds, and any other relevant information. This will help ensure that you and your soon-to-be ex-spouse can divide your assets and responsibilities fairly and efficiently. Additionally, if there are children involved, you'll need to focus on creating a stable environment for them and establishing a parenting plan that works for everyone.
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Frequently asked questions
A common-law marriage is a legal marriage that does not require a civil or religious ceremony. It is a valid way for a couple to marry without a formal wedding ceremony, marriage license, or marriage certificate.
Common-law marriage is recognized in a few places, including Texas, Colorado, Iowa, Rhode Island, and the District of Columbia within the United States. It is also recognized by Aboriginal nations like the Navajo Nation. However, it is important to note that the majority of U.S. states do not recognize common-law marriage. Outside of the U.S., common-law marriage is not recognized in Canada, Australia, or the U.K.
The requirements for a common-law marriage vary depending on the jurisdiction. In Texas, there are three elements that must be met, but no specific time requirement. Generally, a couple must live together for a period of time (cohabitation) and hold themselves out to their community as married.
In states that recognize common-law marriage, couples may have the same rights as those who went through a formal marriage process. This includes benefits like spousal support and asset division in the event of separation or death.
Proving a common-law marriage can be challenging due to the lack of a marriage certificate or public record. Documents such as lease agreements, tax returns, and insurance policies may be used to demonstrate cohabitation and representation as a married couple.
