Gavin Howe
The concept of common-law marriage is a complex one, with varying practices and recognition across different jurisdictions. In the United States, for instance, there is a mix of approaches. While some states and jurisdictions recognize common-law marriages, others do not. The requirements for establishing a common-law marriage can also vary, with factors such as the duration of cohabitation, mutual agreement, and holding themselves out as a married couple being considered. However, in countries like England, where common-law marriage originated, it is a myth that unmarried couples who live together for a certain period benefit from common-law marriage rights. Cohabiting partners do not automatically gain full protection under the current laws, but they can take steps to safeguard their position, such as through cohabitation agreements or deeds of trust.
Characteristics of common-law marriage
| Characteristics | Values |
|---|---|
| Mutual agreement | In the present tense, to enter into a state of matrimony |
| Consummation of the agreement | By cohabitating as husband and wife |
| Verbal agreement | Both parties must expressly agree that they are not married |
| Holding out as married | Simply cohabiting is not enough, you must hold yourselves out to others as married |
| Intention to be married | Intention to be married is more important than the length of cohabitation |
| Tax filing | Couples should file taxes separately |
| Finances | Finances should be managed independently, without shared bank accounts or credit cards |
| Name change | Your last name does not automatically change with common-law marriage |
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What You'll Learn
Common law marriage doesn't exist in all US states
Common-law marriage is a complex concept that is recognised in only a handful of US states. It is a common misconception that living together for a certain period of time automatically results in a common-law marriage. This is not the case, and there are other requirements that must be met for a common-law marriage to be recognised.
Firstly, it is important to note that cohabitation alone is generally not sufficient to establish a common-law marriage. While living together is often a necessary condition, it is not enough to simply share a residence with someone for a certain period of time. There must also be an intention to be married and a presentation of themselves as a married couple to the wider world. This can include referring to each other as "husband", "wife", or "spouse", using the same last name, and holding themselves out as a married couple to family, friends, and the community.
However, the specific requirements for a common-law marriage vary depending on the state. For example, in the District of Columbia, there must be a mutual agreement in the present tense to enter into a state of matrimony, as well as cohabitation as husband and wife. In Texas, a common-law marriage can be dissolved by separating from your partner for two years without taking legal action. In Utah, a petition for an "unsolemnized marriage" must be filed while still in the relationship or within one year of separation.
It is worth noting that the recognition of common-law marriage is constantly evolving, and there may be ongoing legal debates and changes in individual states. As of 2023, common-law marriage is recognised in only seven US states and Washington, D.C. These include Texas, Montana, and Kansas, where specific conditions must be met. For instance, in Kansas, filing taxes together is considered evidence of a common-law marriage.
If you live in a state that recognises common-law marriage and wish to avoid it, it is recommended to sign a living together or cohabitation agreement, clarifying that you do not intend to be married. This can help safeguard your position and prevent any unintended legal consequences.
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Cohabitation doesn't automatically equal common law marriage
Cohabitation does not automatically equal common-law marriage. Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that occurs when two people who intend to be married and are legally capable of being married live together as a married couple and present themselves to the world as a married couple.
In other words, cohabitation is not enough for a common-law marriage to exist. There must also be an intention to be married and the couple must hold themselves out to others as husband and wife. Simply living together does not automatically make a couple legally married, and there is no set time period of cohabitation that changes this.
While cohabiting couples do have some legal protections, such as under the law relating to domestic abuse, cohabitation does not provide the same general legal status as marriage or civil partnership. For example, in the UK, cohabitants do not automatically benefit from the doctrine of survivorship, which allows spouses to inherit their spouse's estate upon death without a will. Additionally, there are differences in how the law treats married and cohabiting couples regarding financial matters, responsibility for children, and housing.
To safeguard their position, cohabiting couples can take steps such as creating a cohabitation agreement, which outlines certain agreements and intentions during the relationship and upon its breakdown. This can cover matters relating to property, finances, and children. A deed of trust can also be entered into when cohabitants own joint property to manage its ownership, and a will can be created to outline inheritance wishes.
It is important to note that the laws regarding cohabitation and common-law marriage vary by jurisdiction, and some areas are working towards reforming these laws to better reflect the changing dynamics between marriage and cohabitation.
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Common law marriage grants similar legal rights to formal marriage
The concept of "common-law marriage" is often used to describe various types of cohabiting couple relationships, including those that are not legally recognised as marriages. However, in certain jurisdictions, common-law marriages can grant similar legal rights to formal marriages.
In the United States, certain states recognise common-law marriages, where a couple can be legally married by living together with the intention to be married, without a formal ceremony. For example, in the District of Columbia, a common-law marriage requires a mutual agreement in the present tense to enter into matrimony and the consummation of their agreement by cohabitating as husband and wife. While the specific requirements vary by state, common-law marriages typically grant similar legal rights to formal marriages in these areas.
In Canada, while common-law marriage as a legal institution does not exist, informal cohabitation relationships are recognised and granted certain legal rights and obligations. Couples in marriage-like relationships may be granted many of the rights and responsibilities of a marriage, such as tax benefits and financial claims, without being legally considered married.
In the United Kingdom, there is no definitive law surrounding common-law marriages in England and Wales, and Scotland abolished a form of irregular marriage called 'marriage by cohabitation with habit and repute' in 2006. However, there is growing pressure to improve the rights of cohabiting partners, and legal professionals and politicians advocate for reforms to align with societal changes.
While the existence and recognition of common-law marriages vary across jurisdictions, they can grant similar legal rights to formal marriages in areas such as social security, medical and tax benefits, inheritance, and financial claims related to children. It is important to note that specific laws and requirements may differ based on the location and individual circumstances.
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Cohabitation agreements can safeguard finances, property and children
Cohabitation agreements are legal documents that outline the rights and responsibilities of unmarried couples living together. These agreements can be used to safeguard finances, property, and children in the event of a relationship breakdown or other unforeseen circumstances.
When it comes to finances, cohabitation agreements can address financial responsibilities, debt burdens, and the division of assets. This includes outlining how assets and debts will be divided in the event of a breakup or death, ensuring that both parties are protected and that assets pass as intended. Additionally, cohabitation agreements can include spousal support arrangements, such as setting terms for support payments or waiving the right to them.
Property ownership is another crucial aspect addressed in cohabitation agreements. By establishing a declaration of trust or a deed of trust, couples can outline their intentions and ownership of the property. This is especially important if the property is jointly owned or if one partner has contributed more to the purchase.
In cases involving children, cohabitation agreements can include decisions around their care, including healthcare directives and end-of-life care. While a cohabitation agreement may not provide all the necessary legal rights, it can still help outline the intentions and expectations of both parties regarding the child's upbringing. Additionally, financial provisions can be made for the benefit of the child, including lump-sum payments and property transfers under the Children Act 1989.
It is important to note that the legal enforceability of cohabitation agreements can vary depending on the jurisdiction. Therefore, it is always advisable to consult with a legal professional when considering a cohabitation agreement.
While there is no set timeframe for establishing a common-law marriage, it is a myth that simply living together for a certain period automatically creates such a marriage. Instead, it typically requires holding yourselves out as married or having the intent to be married. Cohabitation agreements can provide clarity and security for couples who choose to live together without entering into a legal marriage.
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Common law marriage has roots in English case law
The concept of common-law marriage is rooted in English case law, with the phrase "common law" itself originating from England. Historically, the term referred to non-ceremonial marriages that were considered valid under English law. The 1877 case of Meister v. Moore in the United States Supreme Court affirmed that such marriages were enforceable unless forbidden by state statute. This decision set a precedent for recognising common-law marriages in certain US states.
In England and Wales, the term "common-law spouse" is commonly used to describe unmarried couples who have cohabited for extended periods. Despite this, English law does not recognise the concept of a "common-law spouse", and cohabiting partners do not possess the same legal status or protections as married couples or civil partners. This misconception has led to calls for legal reform to grant cohabiting partners more rights and protections.
While England and Wales do not legally recognise common-law marriages, there is a limited context in which English law acknowledges the term. In territories not under British control, English courts upheld marriages by consent if it was impossible for the parties to marry according to local law requirements. This recognition extended to marriages during the Second World War in prisoner-of-war camps in German-occupied Europe and involved British civilians interned by the Japanese.
Additionally, the term "common-law marriage" has been used in specific jurisdictions, such as Washington, D.C., and a few US states, including Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. These jurisdictions recognise common-law marriage based on factors such as cohabitation, mutual agreement, and holding themselves out as husband and wife. However, the requirements and recognition vary across states, and some states have abolished common-law marriage for marriages entered into after a specific date.
In summary, while the term "common-law marriage" has roots in English case law, its legal recognition and specific requirements vary depending on the jurisdiction. It is always essential to refer to the specific laws and regulations of the relevant jurisdiction when discussing common-law marriage.
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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.
Simply living with someone for a certain period of time does not make you common-law married. In addition to cohabitation, you must also hold yourselves out to others as husband and wife.
If you live with a roommate for five years, you are generally not considered a married couple. However, in some states, if you meet the legal criteria and live in a state that recognizes common-law marriage, you may be considered married.
If you do not wish to be considered married under common law, you should sign a written statement expressing this. You should also file your taxes separately and manage your finances independently.
Common-law married couples do not have a marriage certificate or a marriage license, so they must petition the court.
