Keith Mack
Common-law marriage, or non-ceremonial marriage, is a legally recognised marriage between two people who have not purchased a marriage licence or had their marriage solemnised by a ceremony. In New Hampshire, common-law marriage is recognised only to a limited extent. The state does not allow people to form common-law marriages, but it will recognise them for purposes of inheritance. The requirements for common-law marriage in New Hampshire are cohabitation for three or more years, acknowledgement of each other as spouses, behaving as a married couple, and being regarded as spouses by the community.
| Characteristics | Values |
|---|---|
| Common-law marriage recognition | Recognized only in limited circumstances |
| Marriage formation | Does not allow new common-law marriages |
| Marriage recognition | Recognizes common-law marriages from other states |
| Marriage license | Not required for common-law marriage |
| Ceremony | Not required for common-law marriage |
| Inheritance | Recognizes common-law marriage for inheritance purposes |
| Criteria | Cohabitation, acknowledgement, behavior, community regard |
| Time | Recognizes common-law marriage after three or more years |
| Death | Requires death of one partner to trigger statute |
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What You'll Learn
New Hampshire's common law marriage recognition
Common-law marriage, or non-ceremonial marriage, is a legally recognised marriage between two people who have not purchased a marriage licence or had their marriage solemnised by a ceremony. Common-law marriage has existed in the United States since 1877, and while most American jurisdictions do not allow it, a minority of states do.
New Hampshire does not allow people to form new common-law marriages, and it only recognises common-law marriage in limited circumstances. The state does not recognise common-law marriage for purposes of tax benefits, health insurance coverage, or any other benefits married couples enjoy. However, New Hampshire does recognise common-law marriage in the event of the death of one spouse.
In the case of In re Buttrick, 134 N.H. 675 (1991), the Merrimack County Probate Court found that the petitioner, Charlene L. Miller, was entitled to a spousal share of the estate of Clifton R. Buttrick, Sr. by virtue of the fact that the petitioner and the decedent were "deemed to have been legally married" at the time of Buttrick's death.
The relevant statute is RSA 457:39, which requires three conditions to be met:
- Cohabitation for three or more years preceding the death of one partner
- Acknowledgement of each other as spouses
- Behaviour as if they were a married couple, and not merely romantic partners, in their dealings with each other
In the case of In re Estate of Bourassa, 157 N.H. 356 (2008), the petitioner, Deborah Beck, appealed a decree of the Rockingham County Probate Court, arguing that she was Bourassa's common-law spouse pursuant to RSA 457:39 (2004). The court affirmed the lower court's decision, finding that Beck and Bourassa failed to acknowledge one another as husband and wife, as required by the statute.
In summary, while New Hampshire does not generally recognise common-law marriage, it will recognise a common-law spouse upon the death of the other party for inheritance purposes only. The surviving spouse can attempt to secure a fair share of the decedent's estate, but the standard for proving a common-law marriage for inheritance purposes is high.
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Common law marriage requirements
In the United States, common-law marriage has existed since 1877, and it is still technically recognised in 10 states and the District of Columbia. Five other states also recognise common-law marriage with some restrictions. Common-law marriage is a non-ceremonial marriage that is legally recognised without a marriage license or a ceremony.
New Hampshire does not allow people to form new common-law marriages, and it only recognises common-law marriage in limited circumstances. The state does not recognise common-law marriage for tax benefits, health insurance coverage, or any other benefits that married couples enjoy.
However, New Hampshire does recognise common-law marriage in the event of the death of one of the spouses. The requirements for this are:
- Cohabitation: The couple must have lived together for at least three years before one of them died.
- Acknowledgement: They must have acknowledged each other as spouses.
- Behaviour: They must have behaved as a married couple, and not merely romantic partners.
- Community Regard: They must have held themselves out as a married couple to their family, friends, and community, and the community must have regarded them as spouses.
If these requirements are met, the surviving spouse can file a legal action to secure their fair share of their deceased partner's assets. This is the only way in which New Hampshire will recognise new common-law relationships that began within its borders.
It is important to note that the recognition of a common-law marriage depends on individual state laws, and most American jurisdictions do not allow it. Therefore, it is always advisable to seek legal advice for specific situations.
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Common law marriage inheritance
In New Hampshire, marriage is controlled by statute, and the state does not allow people to form common-law marriages. However, New Hampshire will recognize common-law marriages for inheritance purposes in limited circumstances.
If a couple lives together for at least three years and one of them dies, the surviving partner can file a legal action to receive their fair share of their deceased partner's assets, provided the following criteria are met:
- The couple acknowledged each other as spouses.
- They behaved as a married couple, not just romantic partners, in their interactions.
- They held themselves out as a married couple to their family, friends, and community.
New Hampshire courts will also recognize common-law marriages that were established in other states as fully legal and valid. In such cases, if the couple resides in New Hampshire at the time of their separation, they will have to go through a formal divorce process, dividing their assets and liabilities and making decisions about custody and visitation.
In New Hampshire, the term "property" in the context of divorce includes all tangible and intangible assets. Tangible property includes real estate, furniture, cars, electronics, and bank accounts, while intangible property covers employment benefits, pension or retirement benefits, and savings plans.
It is important to note that New Hampshire's laws on property distribution differ from many other equitable distribution states. While most states differentiate between "marital property" and "separate property," New Hampshire recognizes both types of property as subject to division in a divorce. This means that any property owned by the couple at the time of divorce is up for distribution, regardless of when or how it was acquired.
In summary, while New Hampshire does not allow the formation of new common-law marriages, it will recognize them for inheritance purposes under specific conditions. The state also recognizes common-law marriages established in other states and will facilitate the dissolution of such marriages through formal divorce proceedings. The state's property distribution laws during divorce are comprehensive and aim to ensure a fair division of assets between spouses.
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Common law marriage history
In the United States, common-law marriage, or "non-ceremonial" marriage, has existed since 1877. Common-law marriage is a legally recognised union between two people who have not purchased a marriage license or solemnised their marriage through a ceremony. Instead, a couple must mutually acknowledge each other as spouses and live together for a certain period.
New Hampshire does not allow people to form new common-law marriages, and it only recognises common-law marriage in limited circumstances. The state defines common-law marriage as a union between two people who are free to marry, consider themselves married, live together as a married couple, and meet certain other requirements.
New Hampshire will only recognise new common-law relationships that began within its borders for inheritance purposes. If a couple lives together for at least three years and one of them dies, the surviving spouse can file a legal action to secure their fair share of their deceased partner's assets. To do so, they must prove that they acknowledged each other as spouses, behaved as a married couple, and were regarded as such by their community.
If a couple establishes a valid common-law marriage in another state, New Hampshire courts must recognise it as fully legal and valid. In such cases, the couple must go through a formal divorce if their relationship ends while residing in New Hampshire, dividing their assets and liabilities and making decisions about custody and visitation.
The history of common-law marriage in New Hampshire can be traced back to at least 1842, with the publication of the Revised Statutes (RS). The language of the statute regarding marriage, RSA 457:39, remains almost exactly the same as it was in 1842.
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Common law marriage in other states
In the United States, common-law marriage is a form of irregular marriage that is currently recognised in seven states and the District of Columbia, with two additional states recognising it for limited purposes. Common-law marriage, also known as sui juris marriage, informal marriage, marriage by habit and repute, or marriage in fact, does not require a marriage license, ceremony, or certificate. Instead, it is based on custom, church law, or local law.
While the specific requirements may vary by state, common-law marriage generally involves a couple meeting certain conditions, such as cohabitation, holding themselves out as a married couple to the public, and agreeing to be married. For example, in Texas, a couple can establish an informal marriage by living together as husband and wife and representing themselves as married to others within the state.
It is important to note that not all states recognise common-law marriage. Some states, like California and Nevada, do not have common-law marriage but will recognise a common-law marriage established in another state. On the other hand, some states, like New Hampshire, only recognise common-law marriage in limited circumstances, such as for inheritance purposes if a couple has lived together for at least three years and meets other criteria.
The recognition of common-law marriage has evolved over time, with some states abolishing it while others continue to uphold it. As of 2023, the states that fully recognise common-law marriage, even if established before a certain date, include Alabama, Florida, Georgia, Idaho, Indiana, Ohio, and Pennsylvania. It's important to refer to the specific laws and requirements of each state to understand the current status and conditions of common-law marriage recognition.
Additionally, marriage under tribal law is distinct from state marriage law. Many Aboriginal nations, such as the Navajo Nation, permit common-law marriage alongside their traditional tribal marriage processes.
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Frequently asked questions
A common-law marriage is a legally recognised marriage between two people who have not purchased a marriage license or had their marriage solemnised by a ceremony.
New Hampshire does not allow people to form new common-law marriages, but it does recognise common-law marriages in limited circumstances, such as for inheritance purposes.
The couple must cohabit for three or more years, acknowledge each other as spouses, behave as a married couple, and be regarded as spouses by their community.
Traditional marriages require a marriage license and typically involve a wedding ceremony. Common-law marriages do not require a license or ceremony and are formed simply by two people believing they are married and acting accordingly.
