Keith Mack
Common-law marriage, also known as marriage without formalities or informal marriage, is a valid and legal way for a couple to marry in certain states. Common-law marriages have very specific requirements and are not formed simply by living together for a certain period of time. To certify a common-law marriage, couples must typically prove that they meet the legal requirements for a valid common-law marriage, including that they lived together, agreed that they were married, and held themselves out in public as a married couple. This can be done through various documents, such as affidavits, property deeds, birth certificates, financial statements, and more. The specific requirements and recognition of common-law marriage vary by state, and it is recommended to consult with a family attorney to understand the legal implications of a common-law marriage.
| Characteristics | Values |
|---|---|
| Number of states that recognize common-law marriage | 7 states and the District of Columbia |
| States that recognize common-law marriage | Texas, South Carolina (as of 2019) |
| Requirements for common-law marriage | Both parties must be legally eligible for marriage, neither party is already married, both parties agree that they are married, and hold themselves out in public as a married couple |
| Documents that establish common-law marriage | Affidavits, birth certificates, deeds showing joint ownership of property, bank statements, credit card accounts, church records, driver's license or social security number card showing a name change, etc. |
| Proof of common-law marriage in Texas | Declaration of Informal Marriage |
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What You'll Learn
Proving eligibility for common-law marriage
Common-law marriage, also known as marriage without formalities or informal marriage, is a valid and legal way for a couple to marry in certain states. It is important to note that common law marriage has fallen out of favour in the United States, and most states no longer allow it. However, if you are in a state that does recognise common-law marriage, there are several ways to prove eligibility.
Firstly, it is important to understand the specific requirements that apply in your state. For example, in most states, both spouses must be at least 18 years old and have the mental capacity to understand the commitment and consequences of marriage. All states also have laws that prohibit marriage between close relatives (incest) or marriage to more than one person (bigamy).
If you are trying to prove a common-law marriage, you will need to show that you meet the legal requirements for a valid common-law marriage in your state. This may include providing evidence such as an agreement or other official documents signed by both partners declaring their intention to marry. For same-sex couples, this may be more challenging as they may not have been able to list their partner as their spouse on official documents before same-sex marriage was legalised. In these cases, judges are encouraged to take a broad view and consider these realities when assessing evidence.
Additionally, you may need to prove that you established your marriage relationship while living in a state that recognised common-law marriages and that you both intended for your relationship to be a marriage. This can be demonstrated through your conduct, such as referring to each other as "wife" or "husband" in correspondence or on social media, and holding yourselves out in public as a married couple.
If you and your partner agree, you can also sign a Declaration of Informal Marriage with the county clerk, which serves as valid proof of marriage. Alternatively, if no declaration was filed, you may need to go to court to prove your marriage and provide documents such as lease agreements, tax returns, and insurance policies.
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Evidence of common-law marriage
In Texas, a common-law marriage can be established in one of two ways. First, a couple can file a legal "Declaration of Informal Marriage", which is a legally binding document. The form must be completed by both marriage partners and sworn or affirmed in the presence of the County Clerk. The second way to establish a common-law marriage in Texas is to meet a three-prong test, showing evidence of the following: an agreement to be married, cohabitation within the State of Texas, and representation to others within the State of Texas that the parties are married.
In Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, and the District of Columbia, common-law marriages are also recognized. The exact evidence needed to prove a common-law marriage will depend on the state's laws, but some general examples of evidence that may help prove a valid common-law marriage include:
- An agreement or other official documents signed by both partners declaring their intention to marry
- Documents showing one spouse has assumed the surname of their common-law spouse
- Deeds showing title to property held jointly by both parties
- Bank statements and checks showing joint ownership of accounts
- Loan documents, leases, mortgages, and promissory notes that show joint financial obligations
- Friend and family affidavits: Affidavits from people who know the couple and are familiar with their relationship will be helpful to prove their common-law marriage. Friends and family should include in their affidavits how they know the couple, the length of time the couple has lived together, whether there was a public announcement of the marriage, and whether friends, neighbors, and family think the couple is married.
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Affidavits from friends and family
An affidavit is a written statement from a friend or family member who can attest to the genuine nature of the marriage. It is a letter addressed to the relevant government body, confirming that the writer is a witness to the marriage and knows certain facts about it. The affidavit serves as a personal testimonial that the marriage is genuine and not arranged for the purpose of obtaining immigration benefits, for example.
The person writing the affidavit is known as the affiant. Affiants are typically friends, family members, or religious leaders. Affiants do not need to be US citizens or residents, but they should be close confidants who are very familiar with the couple's life together. The affiant should be able to testify about their personal experiences with the couple and share observations that led to the conclusion that the couple has a real marriage.
The affidavit should include a sworn statement, such as "I swear, under penalty of perjury, that the foregoing is true and correct to the best of my knowledge." It should also include details such as how the affiant knows the couple, the length of time the couple has lived together, and whether there was a public announcement of the marriage, such as a social media post.
In the case of a common-law marriage involving an inmate in Texas, the Texas Department of Criminal Justice (TDCJ) has an Affidavit of Informal Marriage form. Both the inmate and their common-law spouse can submit the affidavit to the warden. The inmate can file an unsworn affidavit, while the spouse's affidavit must be certified by a notary.
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Legal rights of common-law spouses
In the United States, common-law marriage is a valid and legal way for a couple to marry without the formalities of a ceremony or a marriage license. While the recognition of common-law marriage varies across states, all U.S. jurisdictions recognize common-law marriages that were validly contracted in the originating jurisdiction.
In Texas, for example, common-law marriage is legal and can be proved by signing a Declaration of Informal Marriage. This declaration serves as proof of a valid marriage in the state. Additionally, the Texas Department of Criminal Justice (TDCJ) provides an Affidavit of Informal Marriage form for visitation purposes.
In terms of legal rights, common-law spouses in states that recognize such marriages generally have the same rights as formally married couples. This includes inheritance rights, where the surviving spouse may be eligible for continued financial support upon the death of their partner. Common-law spouses may also qualify for various federal benefits, such as spousal retirement and disability benefits. They can file joint tax returns, which can result in tax advantages, and they typically have the legal authority to make medical decisions and access important medical information for their spouse if they are incapacitated.
However, it is important to note that the term "common-law marriage" is sometimes used to refer to unmarried cohabiting couples, which does not confer the same legal rights as a valid common-law marriage. In England and Wales, for instance, the concept of common-law marriage has no legal grounding, and cohabiting couples do not automatically gain the rights of married spouses. In Canada, while some provinces may grant couples in marriage-like relationships similar rights as married spouses, they are not legally considered married.
Given the variability and complexity of common-law marriage laws, it is advisable to consult with an experienced family law attorney to understand the specific rights and requirements in your jurisdiction.
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Divorcing a common-law spouse
In the United States, common-law marriages are only recognised in a few states. The requirements for common-law marriage are set by the states, and can vary significantly. For example, in Texas, a common-law marriage is a valid marriage without the formalities of a ceremony or a marriage license.
If you are looking to divorce a common-law spouse, there are a few things to keep in mind. Firstly, you must establish the validity of your common-law marriage in a court of law. This involves presenting evidence of cohabitation for a defined period, intention to live as a married couple, and public presentation as such. Evidence can include joint tax returns, insurance policies, shared property, statements to third parties, use of the same last name, wearing wedding rings, social media posts, and other legal documents.
Once the marriage is validated, you can file a formal petition to initiate the divorce process, outlining reasons for the divorce, and addressing issues like property division, alimony, and child custody. All states in the U.S. offer a 'no-fault' divorce option, where neither party is legally required to prove fault by the other spouse.
During the divorce process, assets and liabilities accumulated during the marriage must be distributed equitably, and if children are involved, child support may be mandated. It is important to consult with an experienced family law attorney to ensure your rights are protected and to navigate the legal intricacies surrounding common-law divorce.
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Frequently asked questions
A common-law marriage, also known as an informal marriage, is a legal marriage without a ceremony or other formalities. It is created when a couple meets certain specific legal requirements, including mutually agreeing to become spouses and holding themselves out in public as a married couple.
To prove a common-law marriage, you must provide evidence that you and your partner mutually agreed to be married and hold yourselves out in public as a married couple. This can include affidavits from friends and family, documents such as bank statements, leases, or insurance policies that list your partner as your spouse, and any other evidence that suggests that you acted like a married couple and that others thought of you as such.
Couples in valid common-law marriages generally have the same legal rights and obligations as any other married couple. This includes the right to inherit property from your spouse if they die without a will and the ability to file taxes jointly.
