Cecily Zamora
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 U.S. states, including Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, Utah and the District of Columbia. However, it is not recognised in Australia, Canada or Ireland. To be considered a common-law marriage, a couple must live together for a consistent period, such as seven or ten years, and present themselves as a married couple to their community.
| Characteristics | Values |
|---|---|
| Number of U.S. states recognizing common-law marriage | 7 + DC (as of 2023) |
| Legal recognition | Legally recognized as a marriage in states that allow it |
| Requirements | Live together for a consistent period (e.g., 7 or 10 years), introduce themselves as a married couple, maintain joint finances, neither partner is married to anyone else |
| Benefits | Eligible for financial benefits like married couples, including tax returns, social security, and medical benefits |
| Separation | Requires a divorce in states where it is recognized |
| Same-sex couples | Recognized in some states, e.g., Pennsylvania |
| Other countries | Abolished in England since 1753, not recognized in Ireland, not recognized in Australia, informal cohabitation recognized in Canada |
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What You'll Learn
Common-law marriage requirements
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage without formalities, is a valid and legal way for a couple to marry in certain states and countries. It is a marriage that results from the couple's agreement to consider themselves married, followed by cohabitation, rather than through a statutorily defined process.
In the United States, common-law marriage is recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia. Each of these states has its own specific requirements that must be met for a common-law marriage to be recognized. While the requirements vary by state, some common requirements include:
- Living together: There is no statutory requirement for the length of time a couple needs to live together, but generally, the longer they live together, the stronger their case is for common-law marriage.
- Legal right or "capacity" to marry: Both partners must have the legal capacity to marry, typically meaning they must be at least 18 years old and of sound mind, and cannot already be married to other people.
- Intent: Both partners must intend to be married and hold themselves out as a married couple to friends, family, and the public.
- Proof: Proving a common-law marriage can be important, especially when a relationship is ending or in determining inheritance rights. Some states provide for registration of an informal or common-law marriage based on a declaration of each of the spouses on a state-issued form. In Texas, couples can sign a Declaration of Informal Marriage with the county clerk, which serves as valid proof of marriage. For couples that choose not to declare their common-law marriage, documents such as lease agreements, tax returns, and insurance policies may be requested to prove the marriage.
It is important to note that not all jurisdictions permit common-law marriage, but they will typically respect the validity of such a marriage lawfully entered in another state or country. Additionally, same-sex couples can also enter into a common-law marriage in states that recognize it.
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Common-law marriage benefits
Common-law marriage, recognised in some US states, is a legal framework in which a couple who lives together for an extended period is seen as legally married, even without a traditional ceremony or marriage license. While it does not offer the automatic right to survivorship benefits or the ability to inherit, there are several other benefits.
Firstly, common-law couples can enjoy the same legal rights as formally married couples, including healthcare benefits, hospital visitation rights, the right to make emergency medical decisions, and access to personal records. They can also benefit from tax deductions, spousal support rights, inheritance rights, and rights in property division upon separation.
Secondly, common-law marriage offers simplicity. Without the complexities of wedding preparations and paperwork, the process of getting legally recognised as a couple is streamlined.
Thirdly, common-law marriage can provide federal benefits, including spousal retirement, survivor benefits, and disability benefits.
Lastly, common-law spouses can benefit from employment perks like family leave, bereavement leave, and access to retirement accounts or pension plans if offered by their partner's employer.
However, it is important to note that the disadvantages of common-law marriage may outweigh these advantages. For example, it can be challenging to prove marital status in a common-law marriage, and there is a risk of no legal protection if one partner denies the existence of the marriage.
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Common-law marriage history
The history of common-law marriage dates back to ancient times, with varying practices and recognition across different cultures and periods. In ancient Greece and Rome, marriages were considered private agreements between individuals and estates, without the involvement of state or religious authorities.
During medieval times, the concept of common-law marriage evolved differently in various parts of Europe. In medieval Europe, marriage was governed by canon law, which recognized a valid marriage based on the mutual declaration of intent between the parties, even without witnesses. In contrast, England during this period emphasized formalities less, often recognizing unions based on the couple's intent and public acknowledgment.
The colonial era mirrored the English legal system, influencing the early adoption of common-law marriage in the United States. Alabama became the first state to officially recognize common-law marriage in 1847 through the case of Meagher v. Meagher, setting a precedent for other states to follow. Throughout the 19th and early 20th centuries, common-law marriage gained popularity in various states, with each region shaping its laws according to cultural and social factors.
However, the recognition of common-law marriage has changed over time. England abolished clandestine or common-law marriages with the Marriage Act of 1753, requiring marriages to be performed by a priest of the Church of England, except for Jews and Quakers. This Act did not apply to Scotland, which retained its own legal system, or to the British colonies, where common-law marriages continued to be recognized, eventually leading to their establishment in the United States and Canada.
Today, common-law marriage is permitted in several U.S. states, including Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, and Utah. These states recognize common-law marriages based on specific requirements, such as cohabitation for a consistent period, holding themselves out as a married couple, and meeting the conditions set by their state of residence. Common-law spouses who meet these requirements are generally entitled to the financial benefits of legally married couples, including Social Security and health insurance advantages.
While Canada and some of its provinces grant certain rights and responsibilities to couples in marriage-like relationships, they are not legally considered married. Similarly, Australia does not recognize common-law marriage, and Ireland has abolished it since 2015.
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Common-law marriage in different states
In the United States, common-law marriage, also known as sui juris marriage, informal marriage, marriage by habit and repute, or marriage in fact, is a form of irregular marriage that survives only in a handful of states. Nine jurisdictions recognize common-law marriages, while two others recognize them for limited purposes. These states include Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire have limited recognition of common-law marriage.
The requirements to contract a valid common-law marriage differ between jurisdictions. However, some general conditions must be met for a couple to be considered married by common law. These include:
- The couple lives together in a state that recognizes common-law marriages.
- They live together for a consistent period, such as seven or ten years.
- They introduce themselves to friends, neighbors, and coworkers as a married couple, calling each other "my husband" or "my wife" and perhaps using the same last name.
- They maintain joint finances such as leases/mortgages, bank accounts, and credit cards.
- Neither partner is married to anyone else.
In some states, couples 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. Additionally, under the United States Constitution, the full faith and credit clause states that states must respect other states' laws. This means that states without common-law marriage still must recognize a common-law marriage from another state, as long as the couple's relationship meets all the requirements of a common-law marriage while living in a common-law marriage state.
It is important to note that common-law marriage is not recognized in all states, and the term is often used colloquially to refer to cohabiting couples, creating confusion regarding the legal rights of unmarried partners. Furthermore, while some countries like Canada and Australia may recognize informal cohabitation relationships or de facto relationships, they do not have the institution of common-law marriage as understood under common law.
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Common-law marriage vs. cohabitation
Common-law marriage, also known as non-ceremonial marriage, is a legally recognised marriage between two people who have not purchased a marriage license or engaged in a ceremony. Common-law marriage is not recognised in all jurisdictions, and the term is often used incorrectly to describe cohabitation. Cohabitation is when two people live together, but they are not in a legally recognised marriage.
In the context of common-law marriage, cohabitation refers to the fact that the couple lives together and holds themselves out to the world as a married couple, without having gone through a statutorily defined process such as obtaining a marriage license or participating in a marriage ceremony. The original concept of common-law marriage is based on the agreement between the couple to consider themselves married, followed by cohabitation, rather than any legal or religious formalities.
In some places, like Canada, informal cohabitation relationships are recognised for certain purposes, creating legal rights and obligations. For example, in Ontario, the Family Law Act (FLA) provides for the equal division of financial gains and the treatment of the matrimonial home separately from other property, even for unmarried cohabiting spouses. However, there are still distinctions between married and cohabiting spouses in terms of property rights and access to certain benefits.
On the other hand, cohabitation without a legal marriage may not confer the same rights and protections as a common-law marriage in places where it is recognised. For example, in the U.S. states that recognise common-law marriage, such as Montana, New Hampshire, Oklahoma, and Rhode Island, couples who meet the requirements are considered legally married and may be eligible for financial benefits like Social Security.
It is important to note that the requirements for common-law marriage vary from state to state, and not all states in the U.S. recognise it. Additionally, while some provinces in Canada may extend certain rights and responsibilities to cohabiting couples, they are not legally considered married.
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Frequently asked questions
A 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 U.S. states, as well as in Canada.
The requirements for a common-law marriage vary by state, but generally include the following: both partners must have the legal capacity to marry (e.g. be at least 18 years old and of sound mind), they must live together for a period of time, and they must hold themselves out to friends, family, and the public as being a married couple.
Common-law spouses who meet their state's requirements are eligible for most of the financial benefits of a married couple, including Social Security. Additionally, common-law marriages can provide legal protections, such as spousal support and survivorship to SS benefits.
