Cameron Miranda
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage without formalities, is a legally binding union between two people who have not purchased a marriage license or engaged in a ceremony overseen by an officiant. Common-law marriage is currently recognized in a few U.S. states, including Texas, Alabama, Georgia, Idaho, Ohio, and Pennsylvania, each with its own requirements. While the specific conditions vary across states, some general criteria for establishing a common-law marriage include cohabitation, holding themselves out as a married couple to the community, being of marriageable age, and not being married to anyone else. It's important to note that not all states or countries recognize common-law marriages, and the validity of such marriages may differ depending on the jurisdiction.
| Characteristics | Values |
|---|---|
| Number of states recognizing common-law marriage | 15 states and the District of Columbia |
| Requirements | Vary from state to state |
| Common requirements | Living together, holding themselves out to friends, family, and the community as "married", exchanging vows, maintaining joint finances, not being married to anyone else, being of marriageable age |
| Proof of common-law marriage | Evidence that the couple lived together, held themselves out as married, and met other requirements |
| Legal status | Same as a formalized marriage |
| Termination | Death of a partner or court-granted divorce |
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What You'll Learn
Cohabitation
In the US, common-law marriage is a legally recognised marriage between two consenting adults who have lived together for a period of time but have not obtained a marriage license or participated in a formal marriage ceremony. Common-law marriage is currently recognised in seven states and the District of Columbia, with an additional nine states recognising it with some restrictions.
In addition to cohabitation, there are several other factors that contribute to establishing a common-law marriage. One important factor is that both partners must have the legal right or "capacity" to marry. This includes meeting the minimum age requirement and not being married to anyone else. Furthermore, the couple must hold themselves out to friends, family, and the community as "married". They may introduce themselves as a married couple, refer to each other as "husband" or "wife", and even use the same last name.
Maintaining joint finances is another aspect that can support a common-law marriage claim. This includes sharing leases or mortgages, having joint bank accounts, and holding credit cards in both names. Exchanging vows or uttering words in the present tense to establish the relationship of husband and wife can also be considered. It is worth noting that in some states, such as Wisconsin, common-law marriage is not recognised, and cohabiting couples are not entitled to the same rights as a married couple regarding marital property, real estate, or custody and placement unless there is a cohabitation agreement in place.
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Intention to be married
To demonstrate this intention, a couple may present themselves as married to the public, including friends, family, and the wider community. This can involve referring to each other as "my husband" or "my wife", changing names, filing joint tax returns, having joint bank accounts, exchanging rings, celebrating anniversaries, and participating in community activities as a family.
The standard for proving intention to be married varies depending on the state, and a judge will generally consider all the circumstances to determine if the couple consistently presented themselves as married. While some states may have a duration requirement for cohabitation, such as seven or ten years, others do not, and living together for a short period, such as three days, can be sufficient if the couple holds themselves out as married.
In addition to demonstrating intention, a couple must also meet other requirements, such as being of marriageable age, not already married, and cohabiting voluntarily for a "`significant`" period, although there is no specified time frame for common-law marriage to take effect.
Common-law marriage is currently recognized in a limited number of states in the US, with each state having its own specific requirements.
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State recognition
In the United States, common-law marriage has existed since colonial times, when America was a colony of England. The Clandestine Marriages Act of 1753 ended common-law marriages in England and Wales, but this did not apply to the colonies. Today, common-law marriage is recognised in a minority of states and the District of Columbia.
There are varying requirements for common-law marriage across the states that recognise it. However, there are some general requirements that apply across the board. Firstly, both parties must be of marriageable age and neither party must be married to anyone else. Secondly, the couple must cohabit for a ''significant' period, although there is no specified time frame for this. The couple must also hold themselves out to friends, family, and the community as "married". They may do this by introducing themselves as a married couple, calling each other "my husband" or "my wife", and perhaps using the same last name. They may also maintain joint finances such as leases/mortgages, bank accounts, and credit cards.
In some states, couples must also exchange vows to be married, uttering "words in the present tense, uttered with the view and to establish the relation of husband and wife". In Texas, couples can sign a Declaration of Informal Marriage with the county clerk. Once signed, the declaration is valid proof of marriage, and the couple is considered married for all legal purposes.
It is important to note that cohabitation as an unmarried couple is not enough to establish a common-law marriage. Additionally, same-sex couples can be common-law married, as states cannot ban same-sex marriages.
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Rights and benefits
The rights and benefits of a common-law marriage are contingent on the laws of the state or country in which the marriage is established. In some places, common-law marriages are not recognised at all, and therefore confer no rights or benefits.
United States
In the United States, common-law marriages have existed since the colonial days. Only eight states in the U.S. (plus Washington, D.C.) allow couples to establish new common-law marriages. These states are:
- Alabama
- Georgia
- Idaho
- Ohio
- Pennsylvania
- South Carolina
- Texas
Some other states recognise common-law marriages if they were established before a certain date. These states and dates are:
- Alabama: 1st January 2017
- Georgia: 1st January 1997
- Idaho: 1st January 1996
- Ohio: 10th October 1991
- Pennsylvania: 1st January 2005
- South Carolina: 24th July 2019
In states that do recognise common-law marriages, couples may have the same rights as a married couple who went through a formal marriage process. These rights include:
- Inheritance rights
- Estate planning benefits
- Tax benefits, including exemption from the gift tax for gifts to each other, unlimited marital exemptions for their estate up to the federal estate tax limit, and deductions for mortgage interest if they co-own a house or have children
- The ability to use a medical power of attorney (POA) designating a common-law spouse as the person to make medical decisions when the other spouse is incapable
Canada
Canada does not have the institution of common-law marriage. However, informal cohabitation relationships are recognised for certain purposes, creating legal rights and obligations.
United Kingdom
In the United Kingdom, there are no definitive laws surrounding common-law marriages. In England and Wales, the term "common-law marriage" is used to refer to unmarried, cohabiting heterosexual couples. However, this is merely a social usage, and it does not confer any rights or obligations on the cohabiting parties. Unmarried partners are recognised for certain purposes in legislation, such as means-tested benefits.
Ireland
Ireland does not recognise common-law marriage, but the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (in force between 2010 and 2015) gave some rights to unmarried cohabitants.
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Divorce and inheritance
Common-law marriages are currently recognised in seven US states and the District of Columbia. Nine other states also recognise common-law marriage with some restrictions. The requirements for common-law marriage are set by the states, and can vary significantly.
Divorce
When seeking a divorce, individuals must typically demonstrate the validity of their common-law marriage, often through evidence like cohabitation, shared finances or public acknowledgment of the relationship. The divorce procedure for common-law marriages closely mirrors that of a traditional marriage. The couple must first establish the validity of their common-law marriage in a court of law. This typically involves presenting evidence that they cohabited for a stipulated period, intended to live as a married couple, and publicly presented themselves as such. The divorce process then begins with the submission of a formal petition to the court, outlining the reasons for the divorce and any other pertinent issues that need to be addressed, such as property division, alimony, and child custody. All states in the U.S. offer a 'no-fault' divorce option, meaning neither party is legally required to prove that the other spouse was at fault for the dissolution of the marriage.
Inheritance
Inheritance laws in the US are determined by the state. Most states are governed by common law, but some follow community property or elective community property systems. In common law states, spouses are not automatically entitled to half of the assets obtained throughout the marriage. However, many states will still give the surviving spouse the right to claim a third or even half of the deceased’s estate, regardless of the terms of the will. In Texas, a common-law spouse is afforded the same rights as a spouse in a formal marriage, including community property rights, homestead rights, and exempt property rights.
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Frequently asked questions
A common-law marriage is a legally recognised marriage between two people who haven't purchased a marriage license or participated in a formal marriage ceremony.
Common-law marriage is recognised in some form in 15 states and the District of Columbia. However, only seven states and the District of Columbia have no restrictions on common-law marriage.
Proving a common-law marriage depends on the state. In Texas, for example, you must prove that both partners were not already married to anyone else, both partners were 18 or older, and that they agreed to be married. Other states may require proof of cohabitation for a certain period, joint finances, and that the couple held themselves out to the world as a married couple.
