Kara Sears
Common-law marriage, which traces its roots to old English law, is not a nationwide phenomenon. It exists in only a small number of states in the US and some other countries. There is no specified time for a common-law marriage to take effect, but it needs to be significant. Common misconceptions include that a couple is considered common-law married after living together for seven years or after a certain number of years. However, the fundamental concept is that the parties agree to be married and tell their friends, family, and the public that they are married.
Characteristics and Values of Common-Law Marriage
| Characteristics | Values |
|---|---|
| Number of years | There is no specified time period for common-law marriage to take effect. However, it needs to be significant. In most states, cohabitation for one year is considered sufficient. |
| Recognition | Common-law marriage is not federally recognized in the US, Canada, or Australia. In the US, it is only recognized in certain states, including Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia. |
| Divorce | There is no such thing as a common-law divorce. Couples must go through the same legal divorce process as couples with a marriage license. |
| Rights | Common-law married couples enjoy the same legal and economic benefits as couples with a marriage license, including alimony, property division, child support, and child custody in the event of a divorce. |
| Name Change | A common-law marriage does not automatically change one's last name. However, it is possible to change one's name through a court petition. |
| Proof | It can be challenging to prove the existence of a common-law marriage, especially during divorce proceedings. |
| History | Common-law marriage traces its roots to old English law and was recognized in various American states due to colonization. |
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What You'll Learn
Common-law marriage requirements
Common-law marriage is a legally recognised marriage between two people who have not purchased a marriage license or engaged in a ceremony overseen by an officiant. Common-law marriage is permitted in several US states, including Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia.
There is no specified time period for a common-law marriage to take effect, contrary to the popular misconception that living together for seven years constitutes a common-law marriage. While the specific requirements vary from state to state, the fundamental concept is that the couple agrees to be married and publicly presents themselves as such to friends, family, and the community.
To be eligible for common-law marriage, both partners must have the legal right or "capacity" to marry. This typically means they must be at least 18 years old, of sound mind, and not already married to other people.
In some states, like Oklahoma, there are additional requirements for common-law marriage. Individuals must prove they are living together, financially interdependent, not related by blood, and 18 or older to be recognised as qualified common-law spouses.
It is important to note that common-law marriage is not recognised in all states, and the process of proving a common-law marriage can be complex and uncertain, especially in the case of divorce or separation.
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Common-law divorce
Common-law marriage, which traces its roots to old English law, is not recognised nationwide in the United States. Only a small number of states recognise common-law marriage, and the requirements vary between jurisdictions. The states that currently recognise 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.
There is no such thing as a "common-law divorce". In the United States, divorce is created by statutory law and must be done by statutory law in all jurisdictions. Therefore, if a couple lives in a state that recognises common-law marriage, they must pursue a standard divorce like any couple married through traditional means. This means that a common-law married couple has to go through the same legal process as a couple with a marriage license.
However, there is an additional layer of complication in a common-law divorce: proving that the couple was married in the first place. This is because there is no formula or algorithm for determining a common-law marriage. In some cases, a common-law marriage is asserted for the first time during a divorce proceeding, with one spouse filing for divorce and simultaneously arguing that a common-law marriage exists.
Furthermore, there is a legal presumption that a couple never agreed to be married if they do not commence a proceeding to prove their relationship was a marriage within two years of the end of their cohabitation and relationship. Nevertheless, this presumption can be rebutted.
It is important to note that there is a popular misconception that a couple is automatically considered common-law married after living together for a certain period, such as seven years. However, this is not true, as common-law marriage is not based on the length of time a couple is together but rather on their mutual agreement to be married and their public holding out as a married couple.
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Common-law marriage misconceptions
Common-law marriage, also known as non-ceremonial marriage, is a marriage that occurs when two people who are legally capable of being married and intend to be married, live together as a married couple and hold themselves out to the world as a married couple. Common-law marriage has its roots in old English law, but it is not a nationwide concept in the United States. Only a small number of states recognize common-law marriage, and the requirements vary from state to state.
There are several misconceptions about common-law marriage. One common misconception is that a couple becomes common-law married after living together for a certain period of time, often believed to be seven years. However, this is not true. While the specific requirements vary, the fundamental concept is that the couple agrees to be married and presents themselves to family, friends, and the public as a married couple. There is no time requirement for how long they must live together.
Another misconception is that common-law marriage is a widely recognized legal concept. In reality, it is only recognized in a small number of states and jurisdictions. Additionally, the term "common-law marriage" is often used incorrectly to describe various types of couple relationships, such as cohabitation or other legally formalized relations, which are not legally recognized as marriages.
It's also important to note that common-law marriage is not the same as a "regular" marriage. While a person who has a common-law marriage enjoys the same legal rights as someone who was married in a religious or civil ceremony, it can be challenging to prove the existence of a common-law marriage. In the event of a divorce, a common-law married couple must go through the same legal process as a couple with a marriage license, including proving that they were married in the first place.
Finally, there is a misconception that common-law marriage is an easy way to get married without the need for a formal ceremony or license. However, common-law marriage is not recognized in most places, and even in states that do recognize it, there are specific requirements that must be met. Simply living together and considering themselves as married may not be sufficient to establish a common-law marriage.
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Common-law marriage in the US
Common-law marriage is an informal marriage where couples do not have a marriage license, ceremony, or certificate. Instead, they cohabit and consent to live as spouses. They must also intend to be married and publicly hold themselves out as a married couple. This means telling friends, family, and the public that they are married. There is no time requirement for how long a couple must live together to be considered common-law married.
The states that currently recognise 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. Several other states have abolished common-law marriage but still recognise them if they were established before a certain date: Alabama (before 1 January 2017), Florida (before 1 January 1968), Georgia (before 1 January 1997), Indiana (before 1 January 1958), Ohio (before 10 October 1991), and Pennsylvania (before 1 January 2005).
It's important to note that the recognition of common-law marriage can have significant consequences. If a couple is found to have a common-law marriage, they may be granted the same rights and obligations as a married couple in that state. This includes the same legal and economic benefits, as well as the same complications in the event of a divorce or separation. For example, a common-law married couple going through a divorce would have to prove their marriage first and then go through the same legal process as a couple with a marriage license.
While the trend has been to abolish common-law marriage as an outdated doctrine, it is still an important consideration for individuals who choose to delay or skip formal marriage. Cohabitation agreements can help formalise certain rights and obligations between partners in these cases.
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Common-law marriage in other countries
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that results from an agreement between two parties to be considered married, followed by cohabitation, rather than through a statutorily defined process. It is important to note that not all jurisdictions permit common-law marriage, and the term is often used incorrectly to describe cohabitation or other legally formalized relations.
In the United States, common-law marriage is only recognized in a handful of states, including Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia. The specific requirements vary from state to state, but the fundamental concept is that both parties agree to be married and publicly hold themselves out as a married couple. Some states have also set cut-off dates, after which common-law marriages will no longer be recognized.
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. Instead, they may be defined as "unmarried spouses" and treated similarly to married spouses for specific purposes such as taxes and financial claims.
In England and Wales, the term "common-law marriage" has been used to refer to unmarried, cohabiting heterosexual couples. Historically, common-law marriages were recognized before the Marriage Act of 1753, which required marriages to be performed by a priest of the Church of England. However, this act did not apply to Scotland, and common-law marriages continued to be recognized in what are now the United States and Canada.
In Kuwait, common-law marriage has limited recognition in expatriate familial disputes, such as maintenance payments and child support dues. If the male partner comes from a country where partnerships or similar unions are recognized, a Kuwaiti court may also consider it. However, intercourse outside of marriage is illegal in Kuwait, limiting the practical application of this recognition.
Additionally, many Aboriginal nations, such as the Navajo Nation, permit common-law marriage or its historic tribal equivalent. These marriages are distinct from state marriage laws and may also include tribal ceremonial or traditional processes.
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Frequently asked questions
There is no specified time for a common-law marriage to take effect. While the most common number is believed to be seven years, it is a myth. The fundamental concept is that the couple agrees to be married and tells their friends, family, and the public that they are married.
The requirements for a common-law marriage are that the couple is eligible to be married and cohabits in a place that recognizes common-law marriage, intends to be married, and holds themselves out in public as a married couple.
Common-law married couples enjoy the same legal and economic benefits as couples with a marriage license. This includes legal rights such as alimony, allowances, shelter, and protections for the female partner in case of abuse, right to live in her partner's house, and child custody.
In the event of a divorce, a common-law married couple has to go through the same legal process as a couple with a marriage license. They must still file for divorce in court, and a court cannot divorce a couple unless there was a marriage.
