Anaya Nolan
The concept of common-law marriage is often used to describe various types of couple relationships, such as cohabitation or other legally formalized relations. While these relationships are often referred to as common-law marriages, they are not legally recognized as marriages in all jurisdictions. In family law, a common-law marriage is a legal and informal marriage where the couple did not have a formal wedding ceremony, marriage license, or marriage certificate. Common-law marriages are recognized in some states in the US, each with its own requirements, and confer most of the same rights as a formalized marriage. In other countries like the UK, there is no definitive law surrounding common-law marriages, and while there may be some recognition for certain purposes, there are no special rights conferred to cohabiting partners.
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What You'll Learn
Common-law marriage requirements
In the United States, common-law marriage has existed since colonial times, when America was a colony of England. While most states have abolished it by statute, common-law marriage is still recognised in Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia.
In states that allow common-law marriage, couples may have the same rights as a married couple who went through a formal marriage process. Common-law marriages are just as valid and legally binding as formalised marriages.
The requirements for a common-law marriage vary by state, but there are some commonalities. Firstly, both partners must have the legal right or "capacity" to marry. This typically means that they must be at least 18 years old, not already married, and of sound mind. Secondly, both partners must intend to be married and behave as a married couple, holding themselves out to friends, family, and the public as a married couple. This may involve sharing a last name, bank accounts, or assets. While there is no statutory requirement for the length of time a couple needs to live together, generally, the longer a couple lives together, the stronger their case is for a common-law marriage.
In Texas, for example, there is no requirement for the couple to be together for a specific period before they can declare themselves to be in a common-law marriage. As long as both parties agree to the three elements listed in Section 2.401, they meet the requirements. Couples who choose not to declare their common-law marriage may need to provide documents such as lease agreements, tax returns, and insurance policies to prove their marriage.
In other countries, such as 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. In the United Kingdom, there is no definitive law surrounding common-law marriage in England and Wales, and while couples in Scotland and Northern Ireland may have limited legal protections, these are generally specific to cases of separation or death.
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Common-law marriage recognition in different 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 is currently recognised in a handful of US states. The recognition of common-law marriage varies by state, and it is important to understand the legal recognition and potential conflicts when moving between states.
In the United States, common-law marriage survives in seven US states and the District of Columbia, with two other states recognising domestic common-law marriage for limited purposes. These states are:
- Colorado
- Iowa
- Kansas
- Montana
- Rhode Island
- Texas
- Utah
- Oklahoma
- New Hampshire (for inheritance purposes only)
- South Carolina
In addition, some states have abolished common-law marriage but still recognise common-law marriages if they began before a certain date or for a specific purpose. These include:
- Alabama (if created before 1 January 2017)
- Florida (if created before 1 January 1968)
- Georgia (if created before 1 January 1997)
- Idaho (if created before 1 January 1996)
- Indiana (if created before 1 January 1958)
- Ohio (if created before 10 October 1991)
- Pennsylvania (if created before 1 January 2005)
Common-law marriage is not recognised in all countries. For example, in the United Kingdom, there is no definitive law surrounding common-law marriage in England and Wales, and Ireland does not recognise common-law marriage. However, in Scotland, couples in a common-law marriage can make limited claims in the event of separation or death. In Canada, while some provinces may extend to couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married.
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Common-law marriage rights
The rights conferred by common-law marriage vary depending on the jurisdiction. In the United States, only 15 states and the District of Columbia recognize common-law marriages. These include Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, and Oklahoma. Once couples in these states meet the requirements of common-law marriage, they are considered legally married for all purposes and enjoy the same rights as couples with ceremonial marriages. These rights include tax benefits, such as exemption from the gift tax for gifts to each other, unlimited marital exemptions for their estate, and deductions for mortgage interest. Common-law spouses also have inheritance rights, can use a medical power of attorney (POA) designating their spouse as the person to make medical decisions when they are incapable, and have the same child custody rights as married couples.
In other countries, common-law marriage may not be legally recognized, but cohabiting couples may still be granted certain rights and protections. In Canada, for example, while there is no common-law marriage, couples in marriage-like relationships may be granted many of the rights and responsibilities of a marriage, such as tax and financial benefits. They are, however, not legally considered married. In Israel, courts and statutes have recognized yeduim batsibur, which refers to couples "known in public" as living together as husband and wife. These couples are granted similar benefits and privileges as married couples.
In the United Kingdom, there is no definitive law surrounding common-law marriages in England and Wales, and cohabiting couples do not have the same rights as married spouses. However, unmarried partners are recognized for certain purposes in legislation, such as means-tested benefits. In Scotland, limited claims can be made in the event of separation or death, while in Northern Ireland, legal protection is only available in certain cases.
It is important to note that the term "common-law marriage" is often used incorrectly to describe various types of cohabiting relationships, and it does not always confer the same rights and protections as a legal marriage. The specific rights and protections conferred by common-law marriage or cohabitation can vary depending on the specific laws and regulations in each jurisdiction.
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Common-law marriage history
The history of common-law marriage dates back to medieval England, where formalities were less emphasised, and unions were often recognised based on the couple's intent and public acknowledgment. In medieval Europe, marriage came under the jurisdiction of canon law, which recognised as valid a marriage in which the parties stated that they took one another as husband and wife, even in the absence of any witnesses. Community recognition of a marriage was largely what qualified it as a marriage, and civil and religious officials typically took no part in marriage ceremonies and did not keep registries.
In ancient Greece and Rome, marriages were private agreements between individuals and estates. The roots of common-law marriage in the United States can be traced back to the colonial era, where legal systems mirrored those of England. In colonial America, it was much harder to find a qualified cleric or wedding officiant, and many couples considered themselves married under common law out of necessity. The harsh conditions of colonial America and the expansion into the sparsely populated regions of the West further necessitated a substitute for ceremonial marriage.
In 1753, the Clandestine Marriages Act was enacted in England to regulate marriages and eliminate secret unions, aligning with the traditions of the Catholic Church. However, this act did not apply to Britain's overseas colonies at the time, and common-law marriages continued to be recognised in what became the United States and Canada. In 1847, Alabama became the first state in the United States to officially recognise common-law marriage when the Alabama Supreme Court acknowledged the validity of common-law marriages in the case of Meagher v. Meagher.
Throughout the 19th and early 20th centuries, common-law marriage gained popularity as an acceptable form of marital union in various states. However, as of 2022, common-law marriages are only recognised in a small number of states, including Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. While the specific laws vary by state, common-law marriages are generally recognised as valid if the couple intends to be married, lives together as a married couple, and holds themselves out to the world as a married couple.
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Common-law marriage in other countries
Common-law marriage, also known as non-ceremonial marriage, informal marriage, marriage by habit and repute, or marriage in fact, 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 not recognised in all jurisdictions, but those that do not recognise it will typically respect the validity of such a marriage lawfully entered in a different jurisdiction.
In the United States, common-law marriage is recognised in seven states and the District of Columbia, with two other states recognising it after the fact for limited purposes. These states include Iowa, Kansas, Montana, New Hampshire, Oklahoma, and Texas. Common-law marriage is also permitted in the Navajo Nation, which allows its citizens to marry through traditional processes.
In Canada, while some provinces may extend to couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married. They may be legally defined as "unmarried spouses" and treated the same as married spouses for many purposes, such as taxes and financial claims.
In Australia, the term "de facto relationship" is often used to refer to relationships between any two persons who are not married but are living in certain domestic circumstances.
In Kuwait, common-law marriage has limited recognition in cases of expatriate familial disputes, such as maintenance payments and child support dues. However, this only applies if the male partner comes from a country where partnerships or other similar unions are recognised, as intercourse outside of marriage is illegal in Kuwait.
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Frequently asked questions
Common-law marriage is a legal marriage without a formal ceremony, marriage license, or marriage certificate. In places where it is recognised, couples in a common-law marriage have the same rights as those who went through a formal marriage process.
Common-law marriage is recognised in certain states in the US, including Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, and Oklahoma. It is also recognised in Israel, and certain provinces in Canada, though they are not legally considered married. In the UK, common-law marriage is not recognised in England and Wales, but couples in Scotland and Northern Ireland can make limited claims in the event of separation or death.
The requirements for a common-law marriage vary depending on the location. However, general requirements include living together for a period of time, presenting as a married couple to the community, and both partners intending to be married.
To end a common-law marriage, a court must grant a divorce, similar to a traditional marriage.
