Cecily Zamora
Common-law marriage, a concept that has been around for many years, is a legal status that arises from the nature of a relationship rather than a marriage certificate or ceremony. In the past, Mississippi recognized common-law marriages, but this changed in 1956. Now, Mississippi law requires a valid license for marriages, and common-law marriages are not recognized. This has led to issues for couples who live together without legal marriage and later separate, as there is no legal framework for dividing assets or determining child custody. Additionally, Mississippi's strong moral code and family values make cohabitation technically illegal, though this statute is often ignored without enforcement.
| Characteristics | Values |
|---|---|
| Common law marriage recognized in Mississippi | No, not since 1956 |
| Requirements for common law marriage | Shared intent to be married, treating the relationship as a marriage, cohabitation, sharing property |
| Legal effects of cohabitation in Mississippi | No division of assets or property accumulated during cohabitation after separation, custody and support of children born to unmarried couples is addressed by Chancery courts |
| Cohabitation agreement | A written agreement outlining specifics of cohabitation and property division in the event of a relationship termination, may be unenforceable or invalid in Mississippi |
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What You'll Learn
Common law marriage was recognised in Mississippi until 1956
Common-law marriage, where a couple lives together and presents themselves as married without legally registering their union, was once recognized in the state of Mississippi. This recognition was in place up until 1956, when a significant change in the state's legal approach to marriage took place. Until that point, Mississippi had a long history of acknowledging common-law marriages as legally valid, providing certain conditions were met. This meant that couples who lived together and held themselves out to the public as married, without actually undergoing a formal marriage ceremony or obtaining a marriage license, could still be considered legally married in the eyes of the law.
The requirements for establishing a common-law marriage in Mississippi typically included factors such as cohabitation, mutual agreement to be married, and public recognition of the relationship as a marriage. These couples were, for all intents and purposes, considered just as married as those who had undergone a traditional marriage ceremony. This had important legal implications, especially regarding property rights, inheritance, and child custody in the event of a relationship breakdown or the death of one partner.
However, in 1956, Mississippi took a decisive step away from this tradition by enacting a statute that effectively ended the recognition of common-law marriages within the state. From that point onwards, couples could no longer enter into a valid marriage simply through cohabitation and mutual agreement. Instead, they were required to obtain a marriage license and participate in a marriage ceremony officiated by an authorized individual, such as a member of the clergy or a judge.
The change in legislation brought Mississippi into line with a growing number of states that were moving away from recognizing common-law marriages. This shift reflected evolving social and legal attitudes towards marriage and family structures. While common-law marriage had provided a degree of flexibility and recognition for couples who, for various reasons, chose not to formalize their relationship through a traditional marriage, there were also concerns about the potential for abuse and the lack of clarity around the rights and responsibilities of the spouses.
The end of common-law marriage recognition in Mississippi marked a significant legal and cultural shift. It underscored the state's position that marriage was a formal legal contract that required specific procedures to be followed for validity. While this change did not diminish the importance of cohabitation or long-term committed relationships outside of marriage, it did draw a clear line regarding the legal definition of marriage and the requirements for entering into this contractual union.
As a result of this historical change, Mississippi residents today cannot enter into a common-law marriage within the state. Any couple wishing to be recognized as legally married in Mississippi must adhere to the formal requirements set out by state marriage laws, which include obtaining a marriage license and participating in a marriage ceremony.
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Mississippi law now requires a valid marriage license
Common-law marriage was abolished in Mississippi effective April 5, 1956, and Mississippi law now requires a valid marriage license for all marriages. Any common-law marriage established before this date will continue to be recognized.
To obtain a marriage license in Mississippi, couples must apply at any circuit court within any county. Both partners must be present during the application, and the cost of the license is $20 to $23. There are no residency requirements for obtaining a marriage license in Mississippi, and there is no waiting period; couples will be issued a license the same day they apply for it.
Once a couple has obtained a marriage license, they must solemnize the marriage with a ceremony and return the completed license to the issuing court for the marriage to be valid. The person who performs the marriage ceremony must complete and sign the relevant section and return the record to the circuit clerk within five days. Mississippi does not require officiants to register with the state before the wedding ceremony, but a minister may be required to submit a copy of their ordination credentials to the clerk's office along with the completed marriage license.
Mississippi law previously imposed a three-day waiting period before a marriage license was issued, but this was eliminated in 2012. Additionally, the state no longer requires couples to obtain a blood test for syphilis before receiving a marriage license.
It is important to note that Mississippi does not recognize same-gender marriages. Any marriage between persons of the same gender is considered null and void, even if it is valid in another jurisdiction.
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Cohabitation is technically illegal in Mississippi
> if any man and woman shall unlawfully cohabit [...] they shall be fined [...] and imprisoned in the county jail not more than six months; and it shall not be necessary, to constitute the offence, that the parties shall dwell together publicly as husband and wife, but it may be proved by circumstances which show habitual sexual intercourse.
The "gist" of criminal cohabitation is "habitual sexual intercourse", but evidence of this alone is not sufficient to prove unlawful cohabitation; the couple must actually reside or dwell together as well. Despite this, criminal charges are rarely enforced due to how common cohabitation is. If charges were to be brought, they would be a misdemeanour that would have to be proven beyond a reasonable doubt.
Cohabitation can also have an impact on civil affairs. For example, it can affect alimony payments. Under Mississippi law, cohabitation is considered a material change in circumstances and is therefore grounds for terminating alimony payments.
Cohabitation can also affect child custody agreements and the division of property upon the termination of a relationship. In Davis v. Davis, the Mississippi Supreme Court held that where a man and woman had lived together for thirteen years without being married, the woman was not entitled to share in the assets accumulated by her companion during their relationship.
In addition, cohabitation agreements may be unenforceable or invalid as violations of Mississippi public policy. Mississippi courts are unlikely to validate cohabitation agreements because the Mississippi legislature has expressly forbidden cohabitation by statute.
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There is no legal division of assets for unmarried couples
In Mississippi, common-law marriage was recognised until 1956. After a policy change, Mississippi law now requires a valid license for all marriages. As a result, there is no legal recognition of common-law marriages in Mississippi, and therefore, no legal division of assets for unmarried couples.
When an unmarried couple separates, there is no legal entitlement to a division of assets accumulated during the relationship. This means that any property acquired together will be divided according to the property laws of Mississippi. For example, if a couple jointly owns a home, the value of the property will likely be divided equally between them. However, if the home is in only one person's name, that individual will usually retain full ownership of the property.
In Mississippi, marital property is presumed to include any property or debts acquired during the marriage. This includes any income earned or real estate purchased by either spouse. However, Mississippi's laws do not provide a specific definition of marital property. Instead, judges may decide on a case-by-case basis, considering the fair market value and emotional value of assets.
Mississippi provides two ways in which a spouse's non-marital property can become marital property. The first is the Family Use Doctrine, where property owned by a single, unmarried adult can become marital property if it is used by the family during the marriage. The second is through commingling, where non-marital and marital resources are combined, resulting in the entire asset being considered marital property.
It is important to note that unmarried couples in Mississippi may face challenges when it comes to property division. Seeking legal assistance from a qualified professional is advisable to navigate these complexities.
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Common law marriage requires shared intent
Common-law marriage was recognized in Mississippi until 1956. After that, Mississippi law required a valid license for all marriages. Since common-law marriage is no longer recognized in Mississippi, couples who live together without the legal benefits of marriage do so at their own risk. When such couples separate, there can be no legal division of assets accumulated during the relationship.
The most fundamental requirement for a common-law marriage is "shared intent". Both partners must intend to be married, even though they have never formalized their marriage in the traditional sense. This shared intention to be married must be demonstrated through concrete actions. For example, evidence of intentions might include signing a written agreement acknowledging that they consider themselves married, holding themselves out as a married couple to friends, family, and their community, calling their partner their spouse, husband, or wife, exchanging wedding rings, and celebrating anniversaries of their commitment.
However, the fact that a couple lives together is not evidence on its own that they have a common-law marriage, as cohabitation has become prevalent in recent years, with many people choosing to “test the waters” before marriage. In Mississippi, cohabitation, or the act of an unmarried couple living together, is technically illegal, although the Mississippi Supreme Court has recognized that the anti-cohabitation statute is generally ignored and goes unpunished.
In Mississippi, persons who cohabitate may enter into a cohabitation agreement, which is a written agreement that outlines the specifics regarding the extent of cohabitation and what happens in the event the relationship is terminated, including how certain property accumulated during the relationship would be divided. However, be aware that Mississippi courts may be unwilling to enforce cohabitation agreements as they may be seen as violations of public policy and attempts to resurrect the old common-law marriage doctrine.
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Frequently asked questions
No, Mississippi does not recognize common-law marriage and hasn't since 1956.
Common-law marriage is a legal status that arises out of the nature of your relationship with a significant other, rather than because of a marriage certificate or a civil or religious marriage ceremony.
The most fundamental requirement for a common-law marriage is shared intent. Both partners must intend to be married, even if the marriage hasn't been formalized in the traditional sense.
Cohabitation, or the act of an unmarried couple living together, has civil and criminal legal effects in Mississippi. While the Mississippi Supreme Court has recognized cohabitation, it does not foster a common-law marriage, and there is no legal division of assets accumulated during the relationship.
You can enter into a cohabitation agreement, which outlines the specifics of your cohabitation and what happens in the event that the relationship is terminated.
