Anaya Nolan
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that results from an agreement between two people to consider themselves married, followed by cohabitation, without a statutorily defined process. Common-law marriage is not recognized in all jurisdictions, but those that do not typically respect the validity of such marriages lawfully entered in another state or country. The recognition of common-law marriage varies across different states and territories, with some recognizing it while others do not.
| Characteristics | Values |
|---|---|
| Definition | A common-law marriage is a marriage that results from the parties' agreement to consider themselves married, followed by cohabitation, rather than through a statutorily defined process. |
| Legal Status | Common-law marriages are only recognised in some states and countries. As of March 11, 2020, there are eight states that recognise common-law marriages in the US. These include Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. Washington, D.C. also recognises common-law marriages. |
| Requirements | The requirements for a common-law marriage vary depending on the location. In Texas, the requirements include that neither partner was married, both are 18 or older, they agree to be married, they live together in Texas, and they represent themselves to others as married. In Colorado, a common-law marriage is established through mutual agreement or consent to enter into the legal and social institution of marriage, followed by conduct that demonstrates this agreement. |
| Evidence | Evidence that may be considered in proving a common-law marriage includes statements from friends, relatives, and other relevant parties; joint bank accounts or shared credit cards; cohabitation agreements; and documents such as lease agreements, tax returns, and insurance policies. |
| Benefits and Protections | Common-law marriages are generally recognised as equivalent to traditional marriages in terms of benefits and protections. These may include social security, tax credits, alimony, allowances, shelter, protections against domestic violence, child custody, and inheritance rights for children. |
| Dissolution | The process for separating a common-law marriage is similar to that of a traditional divorce. |
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What You'll Learn
Common law marriage requirements
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that results from an agreement between the parties to consider themselves married, followed by cohabitation, rather than through a statutorily defined process.
Not all jurisdictions permit common-law marriages, but they will typically respect the validity of such marriages lawfully entered into in other states or countries. In the US, common-law marriages were historically a matter of convenience because it was difficult to locate someone qualified to perform a marriage ceremony, and they allowed couples to avoid the stigma of living together, having a child, and not being married. Today, most states no longer recognize common-law marriages, but if you move to a state that does not recognize it, you will not be considered "unmarried".
As of March 11, 2020, there were eight states that recognized common-law marriages: Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. Washington, D.C., also recognizes common-law marriages.
The requirements for a common-law marriage vary depending on the jurisdiction, but there are some general requirements that are common across most jurisdictions. Both parties must be capable of entering into a marriage, and there must be a mutual agreement or consent to enter into the legal and social institution of marriage. This agreement is typically followed by conduct that demonstrates the agreement, such as living together, representing themselves as a married couple to others, and sharing financial obligations. Some states, like Texas, require that both partners are 18 or older and are not married to anyone else.
While the length of the relationship is not a determining factor in most jurisdictions, some states, like Iowa, have specific rules regarding the length of time a couple must live together to be considered common-law married. In other states, like Texas, there is no requirement for a specific length of time, and a common-law marriage may be established in one day.
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Recognition across states
Recognition of common law marriages varies across US states. Only a handful of states have common law marriages, while a few others have limited common law marriage. Some states have abolished it but still recognise common law marriages if they began before a certain date or for a specific purpose.
All US states must recognise common law marriages that were established in other states that allow them. For example, a couple that is common-law married in Colorado (a common law marriage state) and moves to Ohio (a limited common law marriage state) will still be recognised as legally married in Ohio. This is because of the Constitution's full faith and credit clause.
However, there are some complexities. While all states recognise out-of-state common law marriages, there are some exceptions. For example, common law marriages cannot be contracted in the Territory of Guam or the Commonwealth of the Northern Mariana Islands. Additionally, there may be challenges in proving a common law marriage if marital validity is contested due to the lack of a marriage certificate or other public records.
Furthermore, while a common law marriage may be recognised in one state, the couple may not have access to all the benefits of a married couple in another state. For example, common-law married couples cannot file joint tax returns with the IRS if they live in a state that does not recognise common law marriage. They must file separately or as the head of the household.
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Rights and protections
In other states that do not recognize common-law marriage, cohabiting couples may still have some legal rights and protections. For instance, in California, "palimony" refers to a judge's award of financial support from one unwed partner to another after a breakup. Additionally, the Domestic Violence Act of 2005 and Section 125 of the Criminal Code provide protections for female partners in common-law marriages, including alimony, allowances, shelter, and child custody.
It is important to note that the recognition of common-law marriage can vary internationally. For example, in Canada, common-law marriage is not recognized, but informal cohabitation relationships are acknowledged for certain purposes, creating some legal rights and obligations. Similarly, in the UK, a 2008 poll showed that 51% of respondents incorrectly believed that cohabitants had the same rights as married couples.
To fully understand the rights and protections afforded by a common-law marriage, it is essential to seek legal advice from a qualified attorney, especially when dealing with complex issues such as divorce, property division, or inheritance.
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Divorce process
The divorce process for common-law marriages is similar to that of traditional marriages. However, there are some unique considerations due to the absence of a marriage license or formal documentation. Here is a step-by-step guide to the divorce process for common-law marriages:
- Validation of Common-Law Marriage: Before initiating the divorce process, the couple must establish the validity of their common-law marriage in a court of law. This involves providing evidence to satisfy the court that a common-law marriage existed. This can include documents such as lease agreements, tax returns, insurance policies, joint bank accounts, shared credit cards, witness testimonies, and statements from friends and family affirming the relationship's public portrayal as a marriage.
- Filing for Divorce: Once the common-law marriage is validated, the process of divorce initiation begins. In most states, this involves filing a petition for divorce with the court and serving your spouse. This step is crucial to officially start the divorce process.
- No-Fault Divorce Option: All states in the U.S. offer a 'no-fault' divorce option, which means neither party needs to prove fault or provide reasons for the dissolution of the marriage. Couples can cite irreconcilable differences or choose this option after living separately for a specified duration, depending on state laws. The 'no-fault' option simplifies the process and reduces emotional stress.
- Distribution of Assets and Liabilities: Similar to traditional marriages, common-law couples accumulate assets and liabilities during their union. These must be distributed equitably during the divorce process. This may involve evaluating jointly held properties, shared debts, and other financial matters. Both parties can agree on a division, or the court will decide if an agreement cannot be reached.
- Finalization by the Court: The divorce process concludes with the court's final decisions and decree. The judge will make determinations regarding property division, child custody, and spousal support. Once the judge approves the divorce decree, the common-law marriage is officially terminated.
It is important to note that the specific requirements and procedures may vary depending on the state, as not all states recognize common-law marriages. Consulting with an attorney, especially one experienced in family law, is strongly advised to navigate the complexities of the divorce process and ensure your rights are protected.
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Evidence of marriage
Evidence of a common-law marriage is required when couples need to prove their union in a legal context. For example, when separating from your partner and seeking a divorce, or when trying to inherit property from your partner's estate. The exact evidence needed to prove a common-law marriage varies depending on the state, but some examples include:
- An agreement or other official documents signed by both partners declaring their intention to marry.
- Documents showing that one spouse has assumed the surname of their common-law spouse.
- Deeds showing title to property held jointly by both parties.
- Bank statements and checks showing joint ownership of accounts.
- Loan documents, leases, mortgages, and promissory notes indicating joint financial obligations.
- Credit card accounts in the names of both common-law spouses.
- Church records indicating familial status, membership information, or baptismal certificates of the spouses' children.
- Affidavits from friends and family who are familiar with the relationship and can attest to the couple's intention to be married, the length of time they have lived together, and any public announcements of the marriage.
- Driver's licenses or social security cards showing a name change that matches the spouse's name.
- Signed statements from both spouses and, if applicable, blood relatives attesting to the belief that there was a marriage between the two persons.
It is important to note that common-law marriage is not recognized in all states, and the requirements for proof may vary. Same-sex couples have the same legal right as opposite-sex couples to establish a common-law marriage, but they may face additional challenges in gathering the necessary evidence due to historical discrimination and legal restrictions.
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Frequently asked questions
Common-law marriage, also known as non-ceremonial marriage, is a marriage that results from the couple's agreement to consider themselves married, followed by cohabitation, rather than through a statutorily defined process.
Common-law marriage is recognized in seven states and the District of Columbia. Nine states recognize it with some restrictions, and many states no longer recognize it. All states, however, recognize legal marriages from other states.
The requirements for a common-law marriage vary depending on the state. In most states, couples must live together for a certain amount of time (usually one year) and hold themselves out to friends, family, and the community as "married". Some states, like Texas, do not require a couple to be together for a specific period of time.
In some states, common-law marriages are treated the same as traditional marriages, granting the couple the same legal rights and benefits as a formally married couple. These rights may include property rights, alimony, and child custody.
Common-law marriages can be proven through various documents, such as lease agreements, tax returns, insurance policies, and affidavits of informal marriage. In some cases, a couple may need to petition the court to recognize their marriage.
