Kara Sears
Common-law marriage is an informal marriage without a marriage license or ceremony. It is based on a couple's actions and intentions, and common-law couples have the same legal rights and obligations as formally married couples. To establish a common-law marriage, you must meet the state's criteria, which may include proving a long-term domestic partnership, mutual agreement to be married, cohabitation, and public presentation as a married couple. Same-sex couples have the same legal right to establish a common-law marriage, but they may face challenges in gathering the necessary evidence. The specific requirements and documents needed to prove a common-law marriage vary by state, so it is important to understand the laws in your state.
| Characteristics | Values |
|---|---|
| Number of States Recognizing Common-Law Marriage | 7 states and the District of Columbia |
| Requirements | Mutual agreement to be married, cohabitation, public presentation as a married couple, meeting state-specific general marriage requirements (e.g., age, mental capacity, non-consanguinity, monogamy) |
| Proof of Marriage | Affidavits, deeds showing joint property ownership, bank statements, loan documents, leases, mortgages, credit card accounts, church records, tax returns |
| Rights and Obligations | Same as formal marriages, including property rights, inheritance rights, spousal support, financial support, debt responsibility, parental responsibilities |
| Dissolution | Follows the same legal process as formal marriage dissolution, including filing a petition, serving the petition, dividing property, and determining child custody and support |
| Same-Sex Couples | Have the same legal right as opposite-sex couples, but may face challenges in gathering evidence |
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What You'll Learn
State-specific requirements
The requirements for common-law marriage vary depending on the state. Here is a list of some state-specific requirements:
Texas
Texas law allows couples to register their common-law marriage by filing a declaration with the county clerk. While it is not a requirement, this can be helpful in proving the existence of a common-law marriage. If no declaration was filed, documents such as lease agreements, tax returns, and insurance policies may be requested to prove the marriage. Texas does not require couples to be together for a specific period of time before they can declare themselves in a common-law marriage. However, if the couple separates, Texas law says that if you don't start a proceeding to prove the common-law marriage within two years after you separated, the law will consider that you weren't in a common-law marriage. Same-sex couples can enter into a common-law marriage in Texas.
Alabama
Alabama recognizes common-law marriages that began before January 1, 2017. After this date, common-law marriages are not recognized.
Colorado
Colorado recognizes common-law marriages contracted on or after September 1, 2006. Common-law spouses must be 18 or older and not prohibited by other laws.
Iowa
Iowa common-law marriage is intended to support dependents but isn't otherwise banned.
Kansas
In Kansas, couples must be mentally capable of committing, must be 18 or older, and must represent themselves as married in the community.
Montana
Montana does not prohibit common-law marriage, and it is not invalidated by the state's marriage chapter.
New Hampshire
New Hampshire uses the term "cohabitation" instead of "common-law marriage." These unions are recognized solely for inheritance purposes, such as when an estate is settled after one of the partners dies if the couple lived together for three years before the death.
It is important to note that the requirements and recognition of common-law marriages can change over time, and some states have abolished it altogether. It is always best to consult an attorney or legal professional for up-to-date and specific information regarding your state's requirements.
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Evidence of cohabitation
Duration of Cohabitation
Typically, couples must have lived together for a certain period, often several years, with no specific timeframe mandated. Some sources suggest that simply living together may not be sufficient, and other factors indicating a mutual commitment should be considered.
Joint Accounts and Finances
Documents showcasing joint financial responsibilities, such as joint bank accounts, utility accounts, credit cards, or shared expenses, indicate financial intertwining and mutual consent.
Property Ownership
Evidence of joint ownership of residential property or lease or mortgage agreements for a shared residence strengthens the claim of cohabitation and shared living arrangements.
Insurance and Beneficiary Designations
Joint insurance policies and beneficiary designations on life insurance policies or retirement accounts further demonstrate commitment and financial planning as a couple.
Affidavits from Witnesses
Testimonies from friends, family, or acquaintances who can attest to the couple's cohabitation, relationship, and public recognition of their marriage can provide compelling evidence.
Social Media and Online Presence
Online profiles and social media posts that depict the couple as married or refer to each other as spouses can be useful supplementary evidence.
Tax Returns
Filing joint tax returns as a married couple is strong evidence of the intention to be legally recognised as married. However, it is important to note that this option was not available to same-sex couples before the legalisation of same-sex marriage.
It is always advisable to seek legal guidance from a family law attorney to navigate the complexities of proving a common-law marriage and ensuring the protection of the couple's legal interests.
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Public presentation as a couple
Living together and holding yourselves out to friends, family, neighbours, and the wider community as a married couple are also essential components of public presentation. Introducing your partner as your spouse on a single occasion may not be sufficient, but when combined with other evidence, it strengthens your case. For example, living together, sharing a last name, and having joint finances (bank accounts, loans, mortgages, credit cards) are all factors that contribute to the perception of a married couple.
Additionally, legal documents such as leases, loan applications, insurance policies, and beneficiary designations can further validate your public presentation as a married couple. These documents, signed by both partners, demonstrate your mutual agreement to be recognised as spouses. While not all states require a specific duration of cohabitation, living together for an extended period, such as seven or ten years, can bolster your claim.
It is important to note that the recognition of common-law marriage varies across states, and some states may have specific additional requirements. For example, in Texas, both parties in an informal marriage must consent to be married, live together, and tell others they are married. Therefore, it is always advisable to review the specific laws and requirements of your state to ensure your public presentation as a couple aligns with the criteria for a common-law marriage.
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Mutual agreement to be married
A mutual agreement to be married is a critical component of a common-law marriage. This agreement can be verbal, as long as both parties clearly express their intention to be married. However, having a written agreement or other official documents signed by both partners declaring their intention to marry can be extremely helpful in proving the existence of a common-law marriage. This is especially important if the validity of the common-law marriage is ever questioned, such as during a divorce or when claiming benefits.
In addition to a mutual agreement, other factors are considered in determining the validity of a common-law marriage. These include cohabitation, where the couple lives together, although there is no specific duration required for cohabitation in all states. Public presentation is also crucial, where the couple publicly presents themselves as a married couple. This can include using the same last name, referring to each other as husband and wife, and filing joint tax returns.
To further strengthen the case for a common-law marriage, various documents can be used as evidence. These include deeds showing joint ownership of property, bank statements and checks showing joint accounts, loan documents, leases, mortgages, and credit card accounts in both names. Church records indicating familial status and membership information can also be used.
It is important to note that the requirements for common-law marriage vary by state, and it is fully recognized in only seven states and the District of Columbia. Same-sex couples have the same legal right as opposite-sex couples to establish a common-law marriage, but they may face additional challenges in gathering the necessary evidence. Therefore, it is essential to understand the specific requirements and laws of the state where the common-law marriage is established.
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Documents proving the relationship
Common-law marriage is an informal type of marriage without a marriage license or certificate. It is fully recognized in seven states and the District of Columbia in the US. To prove a common-law marriage, you will need documents that show a long-term domestic partnership. Here are some examples of documents that can be used as proof:
- Affidavits: There are two types of affidavits that can be used. The first is a personal affidavit, in which you and your partner state under oath that you are married, the date and location where you agreed to become spouses, and any other details that may help show a spousal relationship. The second type is a friend or family affidavit, in which friends, family, or neighbours can explain their knowledge of your relationship, your living arrangements, and your reputation in the community as a married couple.
- Deeds showing joint ownership of property: This includes property deeds, bank statements, and checks showing joint ownership of accounts, as well as loan documents, leases, mortgages, and promissory notes that show joint financial obligations.
- Documents showing name change: Providing documents that show that you or your children have assumed your partner's last name can be used as proof of a common-law marriage.
- Church records: Church records indicating familial status, membership information, and baptismal certificates of the spouses' children can also be used.
- Agreement or official document: An agreement or official document signed by both partners declaring your intention to marry can be used as evidence.
It is important to note that the requirements for common-law marriage vary by state, so be sure to check the specific laws and requirements in your state. Additionally, same-sex couples have the same legal right to establish a common-law marriage, but they may face challenges in gathering certain types of evidence due to previous legal restrictions and discrimination.
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Frequently asked questions
Common-law marriage is an informal marriage without a marriage license or ceremony. It is based on a couple's actions and intentions. Common-law marriages are recognized in seven states and the District of Columbia.
The requirements for a common-law marriage vary by state, but generally, you will need documents showing a long-term domestic partnership. This includes proof of cohabitation and public presentation as a married couple. Both spouses must be at least 18 years old and cannot be closely related.
You can prove a common-law marriage with various documents, including affidavits, property deeds, bank statements, loan documents, and church records. Written documentation, such as an agreement signed by both partners declaring their intention to marry, is especially helpful.
