Cecily Zamora
Common-law marriage, which traces its roots to old English law, is only recognized in a small number of states. In the US, common-law marriage has existed since colonial times, and in states that recognize it, common-law marriages are treated like any other marriage. Couples who marry under common law are likely to have their marriage recognized in states where common law is not recognized. Common-law marriages are similar to regular marriages in that they are usually easier to enter than to exit. If a couple in a common-law marriage separates, they must get a legal divorce. Common-law divorce does not exist. This can be complicated because proving marital intention often comes down to one partner's word against the other's.
| Characteristics | Values |
|---|---|
| Number of states recognizing common-law marriage | 15 states and the District of Columbia |
| States recognizing common-law marriage | Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina (until recently), Texas, Utah, Alabama (until recently), Florida (until 1986), Pennsylvania, Ohio, Idaho, Georgia |
| Requirements for common-law marriage | Cohabitation, "holding out" (presenting as a married couple), legal capacity to marry (being 18 or older, not already married, etc.) |
| Benefits | Tax breaks, inheritance rights, spousal social security benefits, health insurance savings, exemption from gift tax, marital exemptions for estate tax, mortgage interest deductions |
| Drawbacks | Complicated to prove, no common-law divorce, may require a legal divorce to separate |
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What You'll Learn
Common law marriage is only recognised in a few US states
Common law marriage is a type of informal marriage that does not require a wedding ceremony or a marriage license. Instead, it is typically based on two elements: cohabitation and "holding out". Cohabitation refers to living together for a period of time, although there is no statutory requirement for the duration, and "holding out" means presenting themselves as a married couple to the world. While common law marriage offers similar economic and legal benefits to traditional marriage, such as tax breaks and inheritance rights, it is important to note that it is only recognised in a few US states.
Currently, common law marriage is recognised in only a handful of US states, including Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, and the District of Columbia. Additionally, some states that have abolished common law marriage, such as Alabama, Florida, Pennsylvania, Ohio, Idaho, Georgia, and South Carolina, still recognise them if they were established before the abolition date.
The recognition of common law marriage varies across states, and each state may have its own specific requirements. For example, in Montana, common law marriage is not prohibited and is recognised even without a marriage license. In contrast, New Hampshire uses the term "cohabitation" and recognises common law marriage solely for inheritance purposes. Similarly, Oklahoma has had conflicting views on common law marriage between state law and courts.
The number of states recognising common law marriage has been declining over the years, with states like Alabama and South Carolina recently abolishing the practice. This trend is expected to continue, with legislators in other states facing pressure to follow suit. Despite this, common law marriage is still recognised in a few states, and couples who enter into a common law marriage in one state may have their union recognised in other states due to the "'full faith and credit' rule of the US Constitution."
While common law marriage offers a form of informal marriage, it is important to remember that it is not recognised in most US states. Couples who wish to have their relationship legally recognised should consider taking the necessary steps to give legal effect to their union. Additionally, in states that recognise common law marriage, ending the relationship may require a legal divorce, similar to traditional marriages.
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There is no common-law divorce
Common-law marriages are only recognized in a small number of states. These include Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia. Alabama, Pennsylvania, Ohio, Idaho, Georgia, and Florida also recognize common-law marriages that were entered into before the date they were abolished.
The requirements for common-law marriage vary from state to state. One common feature is that partners must not be married to someone else before entering a common-law marriage. They must also be of legal marriage age. Some states require couples to live together for a certain period, usually a year or more, while others do not consider time cohabiting a factor. Other states require couples to present themselves as husband and wife in public, sharing a last name, bank accounts, or assets.
Despite the differences in requirements, there is no common-law divorce. Couples who separate without going through a legal divorce may find that one partner could later claim assets from the marriage, just like in a regular marriage. This includes assets acquired during the marriage or brought into the marriage by the other partner.
The process of divorce varies by state, and one of the biggest differences is that common-law married couples have to prove they were married. Traditionally married couples have documented their union with a state-issued license, but common-law marriages do not have a similar paper trail. This makes it difficult to prove a couple is married under common law, which is a necessary first step to getting divorced.
In Texas, if court proceedings are not filed within two years of the separation, Texas law presumes the common-law marriage never existed unless proven otherwise.
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Common-law marriages are as legally binding as traditional marriages
The requirements for common-law marriage vary slightly among states, but the two essential elements are cohabitation and "holding out". In some states, there are additional requirements, such as being 18 or older, not being related by blood, and being financially interdependent. While the length of time a couple needs to live together is not a statutory requirement, the longer a couple lives together, the stronger their case is for a common-law marriage.
Common-law marriages offer similar benefits to traditional marriages, including tax breaks, inheritance rights, and health insurance policy combinations. However, common-law marriages cannot be ended by a common-law divorce, and a legal divorce is required to terminate the relationship. This can be complicated as proving marital intention often comes down to one partner's word against the other.
Some states that recognize common-law marriages include Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina (recently abolished), Texas, Utah, and the District of Columbia.
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Common-law marriages are harder to prove
Common-law marriage, which traces its roots to old English law, is only recognised in a small number of states. As a result, proving a common-law marriage can be complicated.
In the US, common-law marriage has existed since the colonial days, when America was a colony of England. The Clandestine Marriages Act of 1753 ended common-law marriages in England and Wales, but this did not apply to the colonies. Common-law marriage is currently recognised in seven states and the District of Columbia. A further nine states recognise common-law marriage with some restrictions.
The requirements for common-law marriage vary slightly among states, but the two essential elements are cohabitation and "holding out". "Holding out" means the couple's actions tell the world they are husband and wife. This can include referring to each other in public as "partner", "spouse", or using the same last name.
However, cohabitation alone does not constitute a common-law marriage. The couple must also be eligible to be married, which usually means they must both be at least 18 years old, of sound mind, and not already married to other people.
In some cases, proving a common-law marriage can be as simple as providing certain legal documents. For example, in a South Carolina case, attorneys presented evidence that the couple had joint accounts and owned property titled in both their names. However, in other cases, small, intimate details of a couple's life may be examined by a judge. For example, in one case, a judge considered evidence that a couple took vacations together, shared a bedroom, and received greeting cards addressed to "Mr. and Mrs.".
Given the varying requirements and complexities involved in proving a common-law marriage, it is important for couples to understand the specific laws and requirements of their state.
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Common-law marriages are often about divorce and property
Common-law marriages are not recognised in most US states, and where they are, the requirements vary. In the US, common-law marriages are legally recognised in only 15 states and Washington, D.C. These include Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Texas, and Utah.
In the UK, the term “common-law marriage” is used to refer to unmarried, cohabiting heterosexual couples. However, this is merely a social usage, and it does not confer any legal rights or obligations on the couple. Similarly, 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.
In the US, couples in common-law marriages have the same legal obligations as married couples, including the duty to support each other and protect marital property. This means that if a common-law couple breaks up, they will still need to get a legal divorce. This can be tricky because, in many cases, proving that a couple intended to be married comes down to one partner's word against the other.
It is important to note that the requirements for a common-law marriage vary by state, and some states have set time limits on claims for divorce or property division. For example, in Texas, if a couple does not start a legal proceeding to have their common-law marriage recognised within two years of separating, the law will consider that they were not in a common-law marriage.
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Frequently asked questions
Common-law marriage is a legal marriage that does not involve a formal wedding ceremony, and the couple does not have a marriage license or certificate. Common-law marriage is not recognized in most states.
Common-law marriage is as real and legal as marriage. It provides the same economic and legal benefits as a traditional marriage, such as tax breaks, inheritance rights, and health insurance benefits.
Common-law marriage can only be legally ended by divorce in states where the practice is recognized. There is no common-law divorce, so you will need to get a traditional divorce.
