Cameron Miranda
The concept of common-law marriage is a relic from the early days of the American colonies when it was difficult to travel to find someone to officiate a wedding. Today, common-law marriage is a pervasive myth, with many people believing that a couple becomes common-law married when they live together for seven years. However, this is not true. Common-law marriage is only recognized in a small number of states, including Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia. While there is no time requirement for common-law marriage in these states, couples must satisfy certain requirements, such as being eligible to be married, cohabiting, intending to be married, and holding themselves out in public as a married couple. In some places, such as New Brunswick, a couple may be considered common-law after living together for 12 consecutive months, which entitles them to certain tax benefits.
Characteristics and Values of Common Law Marriage
| Characteristics | Values |
|---|---|
| Number of cohabiting couples in the UK | 3.5 million |
| Cohabitation recognition in Canada | 12 months |
| Cohabitation recognition in New Brunswick, Canada | 2 years |
| Cohabitation recognition in the US | Varies by state |
| States recognizing common-law marriage in the US | 11 |
| Common time period for common-law marriage | 7 years |
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What You'll Learn
Common-law marriage is a myth in most places
The concept of common-law marriage is a myth in most places. While it is true that an increasing number of couples are choosing to live together without getting married, common-law marriage is not a nationwide phenomenon. In fact, it is only recognised in a handful of states in the US and in certain provinces in Canada.
Common-law marriage, which has its roots in old English law, is a legal relic from the early days of the American colonies. At that time, travelling to find someone to officiate a wedding was difficult, and cohabiting and having children out of wedlock was socially unacceptable. Common-law marriage gave those couples legitimacy and a way to pass on property.
Today, common-law marriage is becoming less common as societal attitudes towards cohabitation have changed. It is no longer socially unacceptable to cohabit without being married, and therefore, there is less need for a legal framework like common-law marriage to provide legitimacy.
That being said, there are still some places where common-law marriage is recognised. In the US, the following states recognise common-law marriage: Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia. Additionally, Alabama, Pennsylvania, Ohio, Idaho, Georgia, and Florida had recognised common-law marriages entered into before they were abolished. In Canada, the province of New Brunswick recognises common-law relationships and grants the same rights and entitlements to same-sex couples as to other people living together in a family relationship.
It is important to note that the requirements for a common-law marriage vary by jurisdiction. For example, in some places, a couple must live together for at least 12 consecutive months to be considered common-law spouses, while in other places, there is no time requirement. Therefore, it is always best to consult a legal professional to understand the specific rules and requirements that may apply to your situation.
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There are no time requirements for common-law marriage
There is no statutory requirement for the length of time a couple needs to live together to be considered common-law married. While the myth that a couple is automatically considered common-law married after cohabiting for seven years is pervasive, it is simply not true. The amount of time a couple must live together to be considered common-law married varies. The longer a couple lives together, the stronger their case is for common-law marriage. However, it is essential to note that cohabitation as an unmarried couple is generally not enough to establish a common-law marriage.
In the United States, common-law marriage is recognized in only a few states, including Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia. These states can create their own rules for who qualifies as common-law married. While some states have abolished common-law marriage, others, like Pennsylvania, Ohio, Idaho, Georgia, Florida, and Alabama, continue to recognize them if they were entered into before the abolition date.
In Canada, unmarried committed partners who live together for a certain period of time or have children together are afforded some rights and benefits similar to those of married couples. For example, the federal Canada Pension Plan recognizes the entitlement of common-law spouses to pension credits. To qualify as common-law partners for tax purposes, a couple must live together as spouses for at least 12 continuous months or live together and have a child together.
In New Brunswick, Canada, the Family Services Act was amended to extend support obligations beyond married and common-law couples. Additionally, under provincial pension plans, if a couple separates, they may be entitled to a share of their partner's pension credits if they have lived together continuously for two years.
In Scotland, there have been several forms of "irregular marriage," including marriage by cohabitation with habit and repute, which was part of Scots law until 2006. While "common-law marriage" is not a term used in Scots law, the concept of marriage by cohabitation with habit and repute is similar to common-law marriage in other jurisdictions.
In India, the Supreme Court defined a "relationship in the nature of marriage" as akin to a common-law marriage, requiring cohabitation for a "significant" period without specifying a time frame.
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Common-law couples have tax benefits
The definition of a common-law partner differs across countries and even states. In Canada, a common-law partner is defined as someone of the opposite or same sex who has lived or is living with you as a spouse for at least 12 continuous months or who has been living with you and is the natural or adoptive parent of your child. In New Brunswick, same-sex couples have the same rights and entitlements as other people living together in a family relationship.
In Canada, common-law couples are treated the same as married couples for income tax purposes. While marital status does not affect tax rates, it does offer potentially significant benefits for tax purposes. Here are some ways common-law couples have tax benefits:
Transfer of tax credits
Common-law couples can transfer some tax credits from their spouse's return to theirs and claim all or part of certain amounts that their spouse or common-law partner qualifies for if they do not need to use them. For example, credits such as the GST/HST credit, the CCB, and the CWB can be transferred.
Pooling of credits and expenses
As a couple, common-law partners can pool certain expenses and have one spouse claim the total. Pooled credits include medical expenses for yourself, your spouse, children under the age of 18, and other dependents such as parents or grandparents.
Combining charitable donation credits
By having one partner claim the combined amount of both partners' charitable donations, common-law couples can achieve significant savings, especially if the donations total over $200.
Splitting of pension income
Common-law couples can split pension income to reduce their overall tax liability. If one spouse has eligible pension income and is the higher earner, splitting the pension income may lead to a lower tax rate for the couple.
It is important to note that while there are benefits to being in a common-law relationship for tax purposes, there may also be disadvantages. For example, the couple's combined income may disqualify them from some benefits programs that they were previously entitled to as single individuals. Additionally, only one partner may be eligible to receive certain tax credits, such as the eligible dependent credit, the Guaranteed Income Supplement (GIS), and the Allowance offered under the Old Age Security program.
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Common-law marriage is recognised in certain US states
In the United States, common-law marriage is a form of irregular union that is currently recognised in a handful of states. These include Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire also have limited recognition of common-law marriage.
The recognition of common-law marriage varies across different states. Some states, like Alabama, Florida, Georgia, Indiana, Ohio, and Pennsylvania, have abolished common-law marriage but still recognise such marriages formed before a specific date or for a specific purpose. For example, in Alabama and Florida, common-law marriages are recognised if they were created before January 1, 2017, and January 1, 1968, respectively.
To be considered a common-law marriage, couples must meet the requirements set by their state. Generally, a common-law marriage is an informal union where couples do not have a marriage license, ceremony, or certificate. Instead, they may file a legal "Declaration of Informal Marriage" or meet a set of criteria that varies by state. For instance, in Texas, couples must provide evidence of agreeing to be married, living together as husband and wife within the state, and holding themselves out to the public as a married couple.
The time period for which a couple must live together to be considered common-law spouses varies. While some sources suggest a minimum of 12 consecutive months, others indicate that the duration depends on the specific rights being claimed and the state in question.
It is important to note that common-law marriage is distinct from cohabitation, which refers to couples living together without a legal marriage. Cohabiting couples do not automatically acquire the same rights as married couples, and their legal remedies upon separation may be limited.
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Common-law couples have pension credit entitlements
The concept of "common-law marriage" is a widely recognised term for couples cohabiting and sharing a life together without legal marriage. However, it is a common myth that unmarried couples who live together benefit from a "common-law marriage". There is no such thing as a common-law marriage, and the laws surrounding cohabitation are often outdated and in need of reform. This is particularly true in England, where the Family Justice system lags behind other jurisdictions.
Despite this, common-law couples do have some pension credit entitlements, depending on the region. In Canada, the federal Canada Pension Plan recognises the entitlement of common-law spouses to pension credits. After 12 months of living together, common-law couples can apply for credit splitting if they then live apart for the same duration. Additionally, under provincial pension plans, common-law couples may be entitled to a share of their partner's pension credits if they have lived together continuously for two years.
In New Brunswick, same-sex couples have the same rights and entitlements as other people living together in a family relationship. While the amount of time required to live together to be recognised as a common-law couple varies, a common-law partner for tax purposes is defined as someone who has lived with you as a spouse for at least 12 continuous months or is the parent of your child.
In the UK, Pension Credit is available to those over the State Pension age of 66 who are on a low income. It is a means-tested benefit that can top up your weekly income to a guaranteed minimum level. Mixed-age couples, where only one partner is over State Pension age, must claim Universal Credit until both partners reach retirement age, at which point they may be eligible to claim Pension Credit as a couple.
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Frequently asked questions
Common-law marriage is a marriage-like status that is assumed to be reached when a couple has lived together for a certain period of time. It is a relic from the early days of the American colonies when it was difficult to travel to find someone to officiate a wedding. Common-law marriage gave legitimacy to cohabitating couples and allowed them to pass on property.
There is no set number of months or years that qualifies a couple as common-law. However, the most common number that is assumed to trigger common-law marriage is seven years. It is important to note that common-law marriage is not recognized nationwide and only exists in a small number of states.
Common-law spouses are entitled to similar tax credits and survivor benefits as married couples. They may also be eligible for pension credits if they have lived together for a certain period of time, typically 12 consecutive months.
