Cecily Zamora
Common-law marriage is a marriage that is considered valid by both partners, but is not formally recorded with a state or religious registry, nor celebrated in a formal civil or religious service. In the US, common-law marriages are only recognized in a small number of states, including Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, and Texas. While there is no statutory requirement for the length of time a couple needs to live together to be considered common-law married, generally, the longer a couple lives together, the stronger their case is for common-law marriage. In most states, a couple must live together for at least a year to be considered common-law married.
| Characteristics | Values |
|---|---|
| Legal recognition of common-law marriage | Varies by country and state/province |
| Requirements for common-law marriage | Live together (cohabitation) for a certain period (no statutory requirement, but generally at least a year or seven years) |
| Both partners must have the legal capacity to marry (e.g., be at least 18 years old and not already married) | |
| Both partners must intend to be married and behave as a married couple in public | |
| Name change | No automatic name change, but possible with court petition and paperwork |
| Benefits and rights | Common-law married couples may be entitled to similar benefits as formally married couples, including spousal benefits, estate planning, and inheritance |
| Unmarried cohabitants may have some rights in certain jurisdictions, such as for means-tested benefits |
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What You'll Learn
Common-law marriage requirements vary by state
The requirements for common-law marriage vary across different states. Common-law marriage traces its roots back to England, where many couples lived together and acted as husband and wife for long periods without an official ceremony. Over time, England's case law recognized these relationships. As England colonized America, many of these practices, including family law related to marital status, were adopted.
In the US, common-law marriage is only recognized in a small number of 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, like Idaho, Pennsylvania, and South Carolina, only recognize common-law marriages that existed before a certain date. For example, Ohio only recognizes common-law marriages that began before October 10, 1991. Other states have grandfathered in marriages created by common-law marriage due to certain circumstances. For instance, New Hampshire recognizes common-law marriages only for inheritance purposes.
To enter into a common-law marriage, a couple generally must satisfy these requirements: be eligible to marry and cohabit in a place that recognizes common-law marriage; intend to be married; and hold themselves out in public as a married couple. There is no statutory requirement for the length of time a couple needs to live together, but the longer they live together, the stronger their case is for common-law marriage.
A common-law marriage that meets state requirements is as valid and legally binding as a formalized marriage. It lasts until a court grants a divorce or a partner dies. 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.
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Common-law marriage and same-sex couples
The recognition of common-law marriages varies across different states. Some states, such as Idaho, Pennsylvania, and South Carolina, only acknowledge common-law marriages before a specific date. For instance, Ohio only recognizes common-law marriages that were established before October 10, 1991. Other states, such as New Hampshire, recognize common-law marriages for limited purposes, such as inheritance.
While the specific requirements may differ across states, there are generally four conditions that need to be met to establish a common-law marriage:
- Cohabitation: The couple must live together, although the required duration varies by state. It is important to note that prolonged cohabitation alone does not automatically establish a common-law marriage.
- Legal Capacity to Marry: Both partners must have the legal right to marry, which typically means they must be at least 18 years old, of sound mind, and not already married to someone else.
- Intent: Both partners must intend to be married and hold themselves out as a married couple to friends, family, and the public. This can include using the same last name, referring to each other as "husband" or "wife," or sharing joint bank accounts.
- Agreement: There must be an exchange of words in the present tense expressing the couple's wish to establish a marriage with each other.
Regarding same-sex couples, the Supreme Court's ruling in Obergefell v. Hodges affirmed their right to marry. Additionally, the 2022 Respect for Marriage Act further strengthens protections for same-sex marriages. While debates and legal cases continue over the specific rights and benefits for same-sex spouses, state courts have the authority to declare same-sex relationships as common-law marriages if they would grant the same status to heterosexual unions. This ruling has been applied retroactively in some cases, recognizing same-sex common-law marriages that existed before same-sex marriage was legally recognized in certain states. For example, a South Carolina court ruled that a same-sex couple who lived together for about 40 years had a common-law marriage, even though South Carolina did not recognize same-sex marriages until 2014. Similarly, in Pennsylvania, a same-sex common-law marriage contracted before January 1, 2005, would be recognized, even though same-sex marriages were only legally recognized in the state in 2014.
It is important to note that the recognition of common-law marriages is not uniform across the United States, and many states no longer recognize them at all. As of 2019, only 16 states recognize common-law marriages. However, all states are required to acknowledge legal marriages performed in other states, including common-law marriages.
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Common-law marriage in other countries
In Canada, while some provinces may grant couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married. They may, however, be legally defined as "unmarried spouses" and treated as such for many purposes, such as taxes and financial claims.
In Australia, the term "de facto relationship" is often used to describe relationships between any two persons who are not married but are living in certain domestic circumstances. De facto relationships have been recognized in the Family Law Act (Commonwealth) since March 1, 2009, and are applicable in states that have referred their jurisdiction on de facto couples to the Commonwealth's jurisdiction. Western Australia is the only state that has not referred its jurisdiction, where state legislation is still valid.
In Norway, couples who live together and have children together are given some marriage-like rights. Norwegian inheritance laws were changed in 2008 so that couples with children could receive a sum of money if their partner dies without a will.
In Ireland, while common-law marriage is not recognized, the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (in force between 2010 and 2015) gave some rights to unmarried cohabitants. Following the Marriage Act 2015, which legalized same-sex marriage, civil partnerships are no longer available, but couples already in one may apply to convert it into a marriage.
In Israel, common-law status grants couples virtually the same benefits and privileges as married couples.
In Kuwait, common-law marriage has limited recognition in expatriate familial disputes, such as maintenance payments and child support dues. However, no recognition is extended to couples where one or both parties are Kuwaiti or to homosexual couples.
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The history of common-law marriage
The concept of common-law marriage has a long and complex history that has evolved over time, with varying degrees of recognition across different jurisdictions. The phrase ""common law" itself originates from England, referring to non-ceremonial marriages that were considered valid under English law. In medieval England, common-law marriages were often recognized based on the couple's intent and public acknowledgment, with less emphasis on formalities.
The roots of common-law marriage in the United States can be traced back to colonial times, when America was a colony of England. During this period, the presence of few clerics or civil officials made it difficult to perform ceremonial marriages, leading to the emergence of common-law marriages as a substitute. The first state to officially recognize common-law marriage was Alabama, following the 1847 Supreme Court case Meagher v. Meagher, which set a precedent for other states to follow.
In 1753, England abolished clandestine or common-law marriages with the Marriage Act, requiring marriages to be performed by a priest of the Church of England. However, this did not apply to its colonies, and common-law marriages continued to be recognized in what became the United States and Canada. Over time, as societies evolved, common-law marriage found its way into legal systems, adapting to cultural and societal changes.
Today, common-law marriage is recognized in a limited number of jurisdictions, including certain states in the United States and some provinces in Canada. In the United States, common-law marriages are recognized in seven states and the District of Columbia, with varying requirements for each jurisdiction. For example, in New Hampshire, common-law marriage is recognized for probate purposes only, while Utah requires judicial validation of common-law marriages.
While the specific requirements may vary, common elements of common-law marriage include cohabitation, mutual consent, and public acknowledgment of the union. The length of time a couple lives together is considered on a case-by-case basis, and there is no statutory requirement. Additionally, both partners must have the legal capacity to marry, intending to be married, and cannot already be married to other people.
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The process of changing your name
There is no definitive timeline for a couple to be considered common-law married. The duration of cohabitation is considered on a case-by-case basis, although generally, the longer a couple lives together, the stronger their case for common-law marriage. Some states, like Idaho, Pennsylvania, and South Carolina, only recognize common-law marriages before a certain date, and others only recognize them for specific purposes, such as inheritance. Same-sex couples also have the right to marry under common law.
Now, onto the process of changing your name. While the reasons for name changes vary, from marriage or divorce to gender identity change, adoption, or personal preference, the process can be challenging due to the legal intricacies involved. Here is a general step-by-step guide to changing your name:
- Understand the Legal Requirements: The process differs based on your state or country of residence. In the United States, each state has its own laws and processes, so it is essential to consult the specific requirements for your state. In Canada, all provinces except Quebec recognize common-law name changes, allowing name changes by "general usage" without government registration or a court order.
- Make a Legal Name Change Request: Submit a formal request to initiate the name change process. This may involve gathering documentation, filing a petition, and setting a court date if a court order is required. A court order is typically the most efficient way to change your name, and it may be necessary for institutions like banks or government entities to officially accept the change.
- Notify Relevant Institutions: Once your name change is official, you must notify various institutions and update your records. This includes important government agencies, such as the Social Security Administration, the Bureau of Consular Affairs (for passports), the Federal Communications Commission, the Selective Service System, and the Department of Motor Vehicles. Additionally, inform your employer, banks, doctors, mortgage providers, insurance companies, and credit card companies.
- Consider Seeking Legal Assistance: The name change process can be complex, and legal professionals can provide valuable guidance. Name change lawyers can help expedite and streamline the process, especially in more complicated cases or when dealing with adoption or personal reasons for the name change. Many lawyers offer flat fees for their services, ensuring that all legal documentation and updates are handled correctly.
- Update Your Records: Obtain updated copies of your vital documents, such as your birth certificate, marriage certificate, or divorce decree, reflecting your new name. These documents will serve as proof of your name change when dealing with various institutions and can be requested from the appropriate government offices.
- Use Online Services: Utilize online services that offer direct legal assistance or automated form processing to facilitate the name change process. These services can help you navigate the administrative aspects of changing your name across various accounts and records.
Remember, while you are free to use an alias or nickname at any time, a legal name change ensures that your new name is recognized by government institutions and other entities. The process may take weeks or months, depending on the complexity of your specific situation and the requirements of your state or country.
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Frequently asked questions
Common-law marriage traces its roots back to England. In the past, many couples lived together and acted as husband and wife for a long period of time without an official ceremony. They were married in the eyes of the community. Over time, England's case law recognized these relationships.
There is no statutory requirement for the length of time a couple needs to live together. The court considers the amount of time a couple lives together on a case-by-case basis. Generally, the longer a couple lives together, the stronger their case is for common-law marriage. In most states, the requirement is to live together for at least a year.
Both partners must have the legal capacity to marry, intend to be married, and hold themselves out in public as a married couple.
Common-law marriage is not recognized nationwide. Some states that allow common-law marriage are Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia.
