Gavin Howe
Common-law marriages, also known as sui juris marriages, informal marriages, or marriages in fact, have been recognised for centuries. In ancient Greece and Rome, marriages were private agreements between individuals and estates, with community recognition as the main qualifier. In medieval Europe, canon law recognised marriages in which parties stated they took each other as husband and wife, even without witnesses. Today, common-law marriages are recognised in various forms across the world, including in some U.S. states, the Caribbean, and limited recognition in Kuwait. However, the recognition of common-law marriages has decreased over time, with many states and countries no longer permitting them.
| Characteristics | Values |
|---|---|
| Number of U.S. states that recognize common-law marriages | 7, plus the District of Columbia and some provisions of military law |
| U.S. states that recognize common-law marriages | Alabama (before 2017), Alaska (before 1964), California (before 1895), Colorado, Florida (before 1968), Montana, New Hampshire (for probate purposes only), Oklahoma, Rhode Island, Texas, Utah, Washington, D.C., and some Aboriginal nations |
| U.S. states that no longer recognize common-law marriages | 28, including California, Nevada, and Alabama |
| U.S. states that never permitted common-law marriages | 13 |
| U.S. states that recognize both putative marriage and common-law marriage | Colorado, Montana, and Texas |
| U.S. states that recognize common-law marriages for limited purposes | 2 |
| U.S. jurisdictions that recognize common-law marriages | All, if validly contracted in the originating jurisdiction |
| Caribbean islands that recognize common-law marriages | English-speaking islands with statutes similar to those in England |
| Countries that do not recognize common-law marriages | Australia, Ireland, and Kuwait (except in the case of expatriate familial disputes) |
| Countries that recognize common-law marriages | Kuwait (in the case of expatriate familial disputes), and the U.S. (in some states) |
| Regions that recognize common-law marriages | The English-speaking Caribbean and England |
| Historical recognition of common-law marriages | Ancient Greece and Rome, medieval Europe, and the early days of the American colonies |
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What You'll Learn
Common-law marriage in the US
The recognition of common-law marriages varies across states. While some states have stopped allowing these informal marriages through laws or court decisions, others continue to recognise them. For example, Alabama and Georgia previously recognised common-law marriages but now only acknowledge marriages contracted before 2017 and 1997, respectively. On the other hand, Colorado, Iowa, Kansas, Oklahoma, Rhode Island, and Texas are among the states that currently recognise common-law marriages.
The requirements for common-law marriage also differ across states. Generally, couples must cohabit, have the legal right or "capacity" to marry, and intend to be married. However, the specific criteria and duration of cohabitation vary. For instance, in New Hampshire, common-law marriages are recognised posthumously to ensure surviving spouses can inherit without difficulty. In contrast, Oklahoma requires proof of cohabitation, financial interdependence, non-blood relation, and both partners being at least 18 years old.
The history of common-law marriage in the US can be traced back to the Marriage Act of 1753, which did not apply to Britain's overseas colonies at the time, including what are now the United States and Canada. Common-law marriages continued to be recognised in these regions. The US Supreme Court's decision in Meister v. Moore in 1877 further affirmed that non-ceremonial marriages could be lawful and enforceable if not explicitly prohibited by state law.
Today, the full faith and credit clause in the US Constitution ensures that states with contradictory laws regarding common-law marriage must still recognise such marriages from other states. This recognition extends to validly contracted foreign common-law marriages, with all states recognising them as they do all validly contracted foreign marriages.
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Common-law marriage in the UK
Common-law marriage, or cohabitation, refers to a couple that lives together for a long time without being married or in a civil partnership. While some countries legally recognise common-law marriages, providing couples with similar rights, protections, and obligations as legally married couples, this is not the case in the UK.
In the UK, common-law partners do not have rights similar to those of married couples. This means that cohabiting does not create any automatic legal rights, regardless of how long a couple has been living together. For example, cohabiting couples do not have the same property rights as married couples, and there is no entitlement to financial support in the event of a breakup or to inherit a deceased partner's assets (unless the surviving partner is mentioned in a will).
In England and Wales, cohabiting couples are treated as separate individuals and are not awarded special legal status. However, couples can formalise aspects of their status by drawing up a legal agreement called a cohabitation contract or living together agreement, outlining the rights and obligations of each partner. Additionally, a declaration of trust can be made regarding how property is shared.
In Scotland, common-law marriage was abolished in 2006 under the Family Law (Scotland) Act 2006. However, before 2006, there was a type of irregular marriage called 'marriage by cohabitation with habit and repute', which was available to couples who had lived together and were considered married. Under the current rules of intestacy for Scotland, unmarried partners can apply to the courts for a share of their deceased partner's estate, but this process may be lengthy and challenging.
While common-law marriage is not recognised in the UK, there are still ways for unmarried couples to protect their finances and family's financial future. Life insurance, for example, can pay out a lump sum upon death to help support daily living costs or repay mortgages. Additionally, cohabitation agreements can provide protections similar to marriage, such as equal shares of assets or access to pensions, and allow couples to agree on what happens in the event of a breakup or death.
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Common-law marriage in Kuwait
Common-law marriages have been recognised for centuries, dating back to ancient Greece and Rome, where marriages were private agreements between individuals and estates. In medieval Europe, canon law recognised marriages in which the parties stated their intention to be husband and wife, even without witnesses. Today, common-law marriages are recognised to varying degrees in several countries, including the United States, Canada, and Kuwait, though the specifics differ across jurisdictions.
In Kuwait, common-law marriages or partnerships have limited recognition in expatriate familial disputes, such as maintenance payments and child support dues. The family courts in Kuwait apply the law of the male partner's country of nationality to address family matters. Therefore, if the male partner hails from a country that recognises partnerships or similar unions, a Kuwaiti court may also consider it. However, extramarital relations are illegal in Kuwait, limiting the practical application of such recognition to exceptional cases, such as illegitimate children born abroad to parents who have since separated and relocated to Kuwait. No recognition is granted to couples with Kuwaiti nationals or to homosexual couples.
The process of marriage in Kuwait differs based on the religious backgrounds of the couple. For Muslim weddings, the groom marries the bride's ranking male family member (usually her father) in a ceremony officiated by a religious figure or judge and witnessed by two males. The bride's representative signs the contract, along with the witnesses and the officiator. The contract includes details like the groom's number of wives, the dowry amount, and the religion of the couple. Under Islamic law, a Muslim man can marry a non-Muslim woman of a "book" faith (Jewish or Christian), but a Muslim woman must marry a Muslim man.
Expatriates wishing to marry in Kuwait can do so in a church or under Sharia law in the courts. They must post marriage banns and obtain a Certificate of No Impediment (CNI) from their respective embassies, confirming their single status or legal termination of any previous marriage. While marriage registration in Kuwait is not possible, expatriates can arrange to have their local marriage certificates deposited with the General Register Office in their home country for record-keeping and future certified copies.
While common-law marriages have a long history, their recognition varies across jurisdictions. In Kuwait, they are only recognised in specific contexts, such as expatriate familial disputes, and even then, they face limitations due to the country's laws on extramarital relations. The recognition of marriages in Kuwait primarily depends on the male partner's nationality and the religious backgrounds of the couple, with Islamic law governing Muslim marriages and allowing polygamy for men.
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Common-law marriage in Aboriginal nations
The recognition of common-law marriages varies across different jurisdictions and nations. In the United States, common-law marriage, also known as sui juris marriage, informal marriage, or marriage by habit and repute, is only recognised in seven states, the District of Columbia, and certain provisions of military law. Many Aboriginal nations within the United States, such as the Navajo Nation, permit common-law marriages or their historic tribal equivalents. These nations allow their citizens to marry through tribal ceremonial and traditional processes.
In Australia, the term "common-law marriage" is not recognised in the same way as it is in common law. Instead, the term "de facto relationship" is often used to describe relationships between any two persons who are not married but are living together and sharing domestic responsibilities. However, since March 1, 2009, de facto relationships have been recognised in the Family Law Act, which is applicable in states that have referred their jurisdiction.
Historically, Aboriginal Australians had their own unique kinship and marriage systems that differed from common law. Reciprocity was a fundamental principle, where marriage linked two families or groups of kin with mutual obligations and responsibilities. Infant betrothal was common, and marriages were often arranged by parents, with gift-giving and the rendering of services playing a role in cementing relationships. The age of marriage for girls was typically around 12 or 13, while men's first marriages were delayed until their late 20s, allowing for the practice of polygyny. While Aboriginal women had fewer rights than their husbands, they were not markedly oppressed within their societies.
In terms of inheritance, Western Australia introduced special provisions for intestate Indigenous people in the Aboriginal Affairs Planning Authority Act 1972. This Act recognised "traditional" marriages and legitimised the children of such unions. However, the Queensland Law Reform Commission in 1993 refrained from approaching this area, acknowledging the complexity of consulting with the Aboriginal community and the breadth of customary law.
In summary, while common-law marriage recognition varies across jurisdictions, many Aboriginal nations within the United States permit such practices. Australia does not recognise common-law marriages under common law, but de facto relationships have gained some recognition. Historically, Aboriginal Australians maintained their own marriage customs, and while inheritance laws have considered Indigenous customary law, a comprehensive approach to recognising it across Australian jurisdictions is still evolving.
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Common-law marriage in the Caribbean
Due to their colonial past, the islands of the English-speaking Caribbean have statutes concerning common-law marriage similar to those in England. However, the term "common-law marriage" in the Caribbean is also widely described, by custom as much as by law, as any long-term relationship between male and female partners.
In Jamaica, a common-law marriage is recognized after a couple has cohabited for at least five years as if they were married. This recognition is primarily for limited legal purposes, such as property division and inheritance. Under the Property (Rights of Spouses) Act of Jamaica, a common-law spouse has the right to property acquired by either spouse during the relationship. However, common-law spouses do not have the same automatic inheritance rights as legally married spouses. Instead, they must prove that they satisfy the five-year habitation requirement to claim inheritance from their deceased partner's estate in the absence of a will.
In Guyana, common-law marriages are also recognized, provided that the man and woman have lived together for a stipulated number of years as husband and wife.
It is important to note that the recognition of common-law marriages can vary across different Caribbean islands, and individuals should refer to the specific laws and regulations of their respective countries.
In a broader context, common-law marriages or informal marriages are recognized to varying degrees in different parts of the world. For example, in the United States, common-law marriages are recognized in some states, including Colorado, Montana, Texas, and the District of Columbia. However, most U.S. states have stopped allowing these informal marriages through laws or court decisions. Internationally, common-law marriages have limited recognition in Kuwait for expatriate familial disputes, and Aboriginal nations like the Navajo Nation also permit them.
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Frequently asked questions
Common-law marriage has been recognized in the US since the country's formation, though it has gradually been abolished in most states. As of 2022, only seven US states and the District of Columbia recognize common-law marriages, with an additional two states recognizing them after the fact for limited purposes.
Common-law marriage has never been legally recognized in the UK, though the term has been used colloquially to refer to unmarried, cohabiting heterosexual couples.
Common-law marriages have some limited recognition in Kuwait in the case of expatriate familial disputes, such as maintenance payments and child support dues. However, intercourse outside of marriage is illegal in Kuwait, so such recognition can only apply in exceptional cases.
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