Gavin Howe
Common-law marriage is a legally recognized union between two people who have not purchased a marriage license or participated in a civil or religious marriage ceremony. Instead, it is a marriage that occurs when two people who are legally capable of being married and who intend to be married live together as a married couple and present themselves as such to the world. While common-law marriage is not recognized in most places, including Canada, Australia, and Ireland, it is still recognized in a few states in the US and the District of Columbia. The recognition of common-law marriage varies widely from state to state, and each state has its own guidelines for the legal designation.
| Characteristics | Values |
|---|---|
| Common law marriage | It is a legally recognized marriage between two people who have not purchased a marriage license or had their marriage solemnized by a ceremony |
| It does not require a civil or religious event | |
| It recognizes two parties that cohabitate and consent to live like spouses | |
| It does not rely on time lived together | |
| It is not considered a valid form of marriage in most states | |
| It is colloquially referred to as "common-law marriage" in various types of couple relationships, including cohabitation | |
| It is not recognized in Australia, Canada, and Ireland | |
| It is recognized in some form in Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, Utah, and the District of Columbia |
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What You'll Learn
Common-law marriage
While the term "common-law marriage" is often used to describe cohabitation or other legally formalized relations, these are not considered legally recognized marriages. Common-law marriage is not recognized in all jurisdictions, but those that do not permit it will typically respect the validity of such marriages lawfully entered into in another state or country. In the United States, common-law marriage is recognized in seven states and the District of Columbia, with nine other states recognizing it with some restrictions.
To be considered a common-law marriage, several requirements must typically be met. Both partners must have the legal right or capacity to marry, which usually means being at least 18 years old, of sound mind, and not already married to other people. The intention to be married is also crucial, and both partners must hold themselves out as a married couple to friends, family, and the public. This can include referring to each other as "spouse" or "partner," taking the same last name, or including each other as spouses in tax documents. While there is no statutory requirement for the length of time a couple needs to live together, longer cohabitation periods generally strengthen the case for common-law marriage.
The concept of common-law marriage has evolved over time, with judges in the past recognizing cohabitation and self-identification as a married couple as sufficient for legal marriage. In medieval Europe, marriage was under the jurisdiction of canon law, which recognized marriages even in the absence of witnesses as long as the parties stated they took each other as husband and wife. The Catholic Church later forbade clandestine marriages at the Fourth Lateran Council in 1215, requiring all marriages to be announced in a church by a priest. England abolished common-law marriages in 1753 with the Marriage Act, which mandated marriages be performed by a priest of the Church of England. However, this did not apply to its colonies, allowing common-law marriage to continue in what are now the United States and Canada.
Today, common-law marriage is not recognized in countries like Australia, Ireland, and Scotland, although Scotland had a form of irregular marriage called 'marriage by cohabitation with habit and repute' until 2006. In Canada, while some provinces may grant couples in marriage-like relationships certain rights and responsibilities, they are not legally considered married.
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Common-law marriage misconceptions
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that occurs when two people who are legally capable of being married and intend to be married, live together as a married couple and hold themselves out to the world as a married couple.
The term "common-law marriage" is often used incorrectly to describe various types of couple relationships, such as cohabitation or other legally formalized relations. This has led to several misconceptions about common-law marriage. Here are some of the most common ones:
- One common misconception is that common-law marriage automatically occurs after partners live together for a certain period of time, often believed to be seven years. This is not true, as there is no time requirement for common-law marriage. The length of time a couple lives together is not a factor in determining whether they are considered married by common law.
- Another misconception is that common-law marriage is recognized nationwide. In reality, common-law marriage is only recognized in a small number of states in the US, such as Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia. The recognition of common-law marriage varies from one jurisdiction to another, and it is important to understand the specific laws and requirements of the state or country in question.
- It is also a misconception that common-law marriage is a way to avoid the legal process of marriage. While common-law marriage does not require a marriage license or a formal ceremony, it still has legal implications and is recognized by the law as a valid form of marriage. Couples in a common-law marriage have the same legal rights as those who are married through a traditional or religious ceremony.
- Some people mistakenly believe that common-law marriage only applies to cohabiting couples. However, the term "common-law marriage" refers specifically to a couple who considers themselves married, lives together, and holds themselves out to the world as a married couple. Simply cohabiting without the intention to be married does not constitute a common-law marriage.
- Finally, there is a misconception that a couple can decide for themselves whether they are in a common-law marriage. While the couple's agreement to be married is essential, it is ultimately the legal system that decides whether a common-law marriage exists. The couple may consider themselves married and act accordingly, but until the legal system recognizes their marriage, it is not absolutely clear whether a common-law marriage legally exists.
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Common-law marriage in the US
The concept of common-law marriage in the US is rooted in the country's history, particularly during frontier times when obtaining official marriage documentation was challenging. Common-law marriage recognises couples who cohabit and consent to live as spouses without a civil or religious ceremony, marriage license, or certificate. While it is not a widely recognised form of marriage in the US today, a handful of states continue to recognise it fully or partially.
History of Common-Law Marriage
The history of common-law marriage in the US can be traced back to the Marriage Act of 1753 in England, which abolished clandestine or common-law marriages, requiring marriages to be performed by a priest of the Church of England. However, this Act did not apply to Britain's overseas colonies at the time, including what are now the United States and Canada, where common-law marriages continued to be recognised.
Current Status of Common-Law Marriage in the US
The recognition of common-law marriage varies across US states. While the majority of states do not contract common-law marriages within their jurisdiction, they will generally recognise such unions if they were established in a state that does recognise them. This recognition is based on the US Constitution's full faith and credit clause, which mandates that states respect the laws of other states.
As of 2023, the following states are listed as recognising common-law marriage in some form: Alabama, Florida, Georgia, Indiana, Ohio, and Pennsylvania. However, the specific requirements and limitations vary by state, and some states have placed time restrictions on the recognition of common-law marriages. For example, Alabama recognises common-law marriages established before January 1, 2017, while Florida recognises those created before January 1, 1968.
Legal Rights and Obligations
Common-law marriages carry legal rights and obligations similar to traditional marriages, including property rights in divorce. These rights can have significant consequences, especially in cases of death or separation, where surviving partners may be entitled to the same benefits as in a formal marriage. However, it is important to note that the specific legal ramifications of common-law marriages can vary widely across states.
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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 marriage that results from an agreement between two parties to consider themselves married, followed by cohabitation, without a statutorily defined process. Common-law marriages are no longer recognised in most U.S. states, but some still retain this tradition. These include Iowa, Kansas, Montana, New Hampshire, and Oklahoma. Additionally, some U.S. states, such as Texas, allow couples to register their informal marriage by filing a declaration with the county clerk.
Outside of the U.S., common-law marriages continued to be recognised in what are now Canada and Australia due to the Marriage Act 1753 not applying to Britain's overseas colonies at the time. In 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. They may be defined as "unmarried spouses" and treated similarly to married spouses for certain purposes, such as taxes and financial claims.
In Australia, the term "de facto relationship" is often used to describe relationships between any two persons who are not married but are living in certain domestic circumstances. Similarly, in England and Wales, the term "common-law marriage" has been used to refer to unmarried, cohabiting heterosexual couples. In Kuwait, common-law marriages have limited recognition in expatriate familial disputes, such as maintenance payments and child support dues, depending on the law of the male partner's country of nationality.
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Common law vs. statute
Common law is a type of law that is based on judicial precedent. It is unwritten and evolves through court decisions. It is also sometimes referred to as "case law". Common law is not collected in a single source, and it is up to judges to interpret and apply it, using past cases to inform their decisions.
Statutory law, on the other hand, is codified and written down. It is created and passed by a legislative body at the local, state, or federal level. Statutory law is also known as "civil law" and is much more rigid in its application. Judges apply the law as it is written, without relying on past cases to interpret it. However, statutory law can be amended or repealed by lawmakers and is subject to change. Later legislatures may overturn, modify or update statutes, and some are even written with an expiration date.
In the context of marriage, common-law marriage is considered valid by both partners but is not formally recorded with a state or religious registry. It is often used to describe cohabiting couples, regardless of their legal rights. In some places, common-law marriage is recognised as a legal marriage, while in others, it is not. For example, common-law marriage is recognised in the United States and Canada, but not in Australia or Ireland.
In criminal cases, both types of law are important. A good attorney will know how to apply both types of law strategically. For example, if a statute seems clear, but previous cases have interpreted it differently, those rulings could affect sentencing, defences, or even whether the charges hold up in court.
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Frequently asked questions
Common-law marriage is a legally recognised marriage between two people who have not purchased a marriage license or had their marriage solemnised by a ceremony. It does not require a civil or religious event, but instead recognises two parties that cohabitate and consent to live like spouses.
Common-law marriage is not recognised in many places. In the US, only a few states and the District of Columbia recognise it. These include Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas and Utah. Canada does not recognise common-law marriage, but informal cohabitation relationships are acknowledged for certain purposes. Australia and Ireland also do not recognise common-law marriage.
The term was popularised in the US during frontier times when it was difficult to obtain official marriage documents. Some states considered a man and woman married if they lived together for a certain length of time and acted as husband and wife.
The purpose of common-law marriage is to protect people who are effectively married in all but name. It grants legal rights and property rights in divorce. It also simplifies the process of separating common-law spouses, as there is no need for a complex legal struggle.
Common law is law derived from judicial decisions instead of statutes. It is made by precedent, by the decisions of judges over hundreds or thousands of years.
