Cecily Zamora
Common-law marriage is a legally recognized marriage between two people who have not purchased a marriage license or engaged in a ceremony overseen by an officiant. Common-law marriages are not legally binding agreements, such as an official marriage or a domestic partnership. However, in the US states that acknowledge common-law marriages, a couple is considered officially married if they present themselves as a married couple to the public, including living together for a specific period. While some states recognize common-law marriages, others like California and Illinois do not, and a couple would have to complete the correct legal process to have the rights and privileges of marriage.
| Characteristics | Values |
|---|---|
| Legality | Common-law marriages are not legally binding agreements, but they are recognised in some states. |
| Number of Recognising States | 9 states and the District of Columbia recognise common-law marriages. |
| Conditions | Couples must live together, present themselves as married, and meet state-specific requirements. |
| Benefits | Common-law couples can enjoy financial benefits, including Social Security and reduced insurance premiums. |
| Separation | Common-law marriages can only be legally ended by divorce in recognising states. |
| Recognition | California and Illinois do not recognise new common-law marriages but honour those established in other states. |
| Alternatives | Non-married couples can create cohabitation agreements or civil unions for legal protection. |
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What You'll Learn
Common law marriage requirements
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 marriage is recognized in seven states and the District of Columbia, although one source suggests that only 11 states still recognize it, some with heavy restrictions. These states include Texas, Alabama (until 2016), and Pennsylvania. However, common-law marriage is not recognized in California, Illinois, and some other states.
There are several requirements for a couple to be considered married by common law. Firstly, the couple must live together in a state that recognizes common-law marriages. While there is no statutory requirement for the length of time a couple needs to live together, living together for a consistent period, such as seven or ten years, is considered indicative of a common-law marriage. Generally, the longer a couple lives together, the stronger their case is.
Secondly, both partners must have the legal right or "capacity" to marry. This typically means that they must be at least 18 years old, of sound mind, and not already married to other people.
Thirdly, both partners must intend to be married and behave as a married couple. This includes publicly referring to themselves as husband and wife, or referring to each other as spouses, using the same last name, and holding themselves out to friends, family, and the public as being a married couple. They may also commingle their finances, such as by having joint leases/mortgages, bank accounts, and credit cards.
Couples who meet the requirements for a common-law marriage in a state that recognizes it are eligible for most of the financial benefits of a married couple, including Social Security and reduced health insurance premiums. However, in states that do not recognize common-law marriage, couples cannot file joint tax returns with the IRS. To end a common-law marriage, couples must file for divorce in states where the practice is recognized.
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Common law marriage in California
California does not recognize common-law marriages. This means that, regardless of how long a couple has been cohabiting, they will not be considered legally married unless they have gone through the formal marriage process in California. This includes obtaining a marriage license and having a ceremony performed by an authorized officiant.
The state abolished common-law marriages in 1895, and since then, couples have been required to register their union with the state to be considered legally married. As a result, there are no specific requirements or criteria that can be met to establish a common-law marriage in California.
However, there is one exception to this rule. If a couple establishes a valid common-law marriage in a state that recognizes such unions and then relocates to California, their marriage will generally be recognized as valid. This is because California Family Code Section 300 defines marriage as "a personal relation arising out of a civil contract between two persons, to which the consent of the parties capable of making that contract is necessary."
In the case of Marvin v. Marvin (1976), the California Supreme Court ruled that while the state does not recognize common-law marriages, unmarried couples who live together and share property or assets may be able to establish certain rights and obligations based on implied or express contracts. This case law, often referred to as a "Marvin Claim," provides some protection for couples in long-term, committed relationships who have chosen not to marry.
Domestic partnerships are another option for couples who do not wish to marry but want some of the legal benefits of marriage. Domestic partnerships in California offer similar benefits to marriage under state law, such as state tax deductions and inheritance rights. However, it is important to note that these arrangements are not federally recognized, and couples may not have access to the same rights and protections as married couples in other states or at a federal level.
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Common law marriage in Illinois
A common-law marriage is a legally recognized marriage between two people who haven't purchased a marriage license or engaged in a ceremony overseen by an officiant. Common-law marriages are not legally binding agreements such as official marriages or domestic partnerships. However, in states that acknowledge common-law marriages, a couple is considered officially married if they present themselves as a married couple to the public, including living together for a specific period.
Common-law marriages are not recognized in Illinois. The only way to get married in Illinois is to obtain a marriage license. The marriage must also be “solemnized” by someone authorized by the state of Illinois and the marriage certificate must be “registered” with the county clerk. However, Illinois courts may acknowledge common-law marriages previously established in another state other than Illinois. For example, a couple who lived in Kansas for ten years and met the legal requirements of the state of Kansas for common-law marriage can ask that the state of Illinois divide their assets like in any other divorce.
In Illinois, cohabitating couples do not have the same rights as legally married couples. Couples who are not married will need to enter a Cohabitation Agreement if they want legal rights regarding property division. Unmarried couples in Illinois do not have any built-in legal protections, regardless of how long the relationship has lasted.
In summary, common-law marriage is not recognized in Illinois, and the only way to get married in the state is to obtain a marriage license. However, Illinois courts may acknowledge common-law marriages established in other states, and cohabitating couples in Illinois can enter into Cohabitation Agreements to protect their legal rights.
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Rights of unmarried couples
The rights of unmarried couples vary depending on the jurisdiction. In some places, unmarried couples who live together and combine their affairs are recognised as common-law or domestic partners and may receive some or all of the rights awarded to married couples. However, in many places, common-law marriage is not recognised, and unmarried couples have very limited rights.
Rights in relation to property and finances
Unmarried couples have very limited rights around property and finances. There are no equivalent rights for those who choose not to marry or enter a civil partnership. Cohabitees have no legal duty to one another while living together, following separation, or even in death.
In the case of separation, unmarried couples do not have the automatic right to make legal claims on property or finances, unlike married couples or those in civil partnerships. However, if an unmarried couple owns a house or other property together, it will typically be divided equally upon separation. If only one person is listed as the owner, but both partners have contributed to the payments, the partner not listed on the deed will need to seek legal counsel to attempt to claim part ownership.
Unmarried couples can create a cohabitation agreement or living together agreement to outline separate and shared assets, debt obligations, and spousal support payments in the event of a breakup. It is recommended that each partner seek independent legal advice when drafting this agreement.
Rights in relation to children
Unmarried couples have the same financial and legal rights and responsibilities regarding their children as married couples. Both parents will have equal rights regarding their children, but decisions regarding child custody and child support will still need to be determined. In cases of unmarried couples, paternity must be established by agreement or by an action (such as a medical test) for a child to receive child support or an inheritance.
Rights in relation to inheritance
The child of unmarried and married parents has a legal right to inherit from both legal parents and the families of both parents. However, if one partner in an unmarried couple dies without leaving a will, the surviving partner will not automatically inherit anything unless the couple owned property jointly. As an unmarried couple, each partner must make a will if they wish to ensure that the other partner inherits.
Rights in relation to citizenship
In some jurisdictions, unmarried couples may have a difficult time sponsoring a non-citizen partner for citizenship, sharing federal employee benefits, or accessing the rights and protections of married couples in other states.
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Separation and divorce
Common-law marriages are not legally binding agreements like official marriages or domestic partnerships. However, in states that acknowledge common-law marriages, couples are considered legally married if they present themselves as such to the public, including living together for a specific period. While the specific period varies, seven years is a common timeframe for common-law marriages to be considered official.
- Validation of Common-Law Marriage: Before initiating divorce proceedings, the couple must establish the validity of their common-law marriage in a court of law. This typically involves providing evidence of cohabitation, intention to live as a married couple, and public presentation as a married couple.
- Filing a Formal Petition: The divorce process begins with the submission of a formal petition to the court, outlining reasons for the divorce and addressing pertinent issues such as property division, alimony, and child custody.
- No-Fault Divorce Option: All states in the U.S. offer a 'no-fault' divorce option, where neither party needs to prove fault for the marriage's dissolution. Couples can cite "irreconcilable differences" or living separately for a specified period.
- Recognition of Common-Law Separation: The recognition of common-law separation differs by state. For example, Texas does not recognize common-law separations, while Kansas does. Couples may choose legal separation over divorce for reasons like retaining insurance policies.
- Divorce in Non-Recognizing States: If a couple's common-law marriage is not recognized in their state, they may still need to take legal action to dissolve their union. This could include creating a cohabitation agreement to address property division and other financial matters.
- International Divorce Recognition: When it comes to international divorce recognition, countries like Canada generally recognize divorces from other countries if they were valid under the laws of that country. However, there may be specific factors and legal requirements to consider.
- Post-Divorce Cohabitation: In some cases, divorced couples may continue to cohabit or see themselves as married to the public eye. In common-law marriage jurisdictions, if divorced individuals hold themselves out to the public as married, they may be considered married again, even without a formal ceremony or license.
- Child Custody and Support: In both common-law marriages and traditional marriages, child custody and support arrangements are crucial aspects of separation and divorce. These arrangements are typically handled by the provinces or territories in Canada and by family courts in other jurisdictions.
- Legal Protections: Unmarried couples, including those in common-law marriages, may have limited legal protections during separation. For example, in Illinois, unmarried couples do not have the same rights as legally married couples regarding property division and inheritance.
- Consulting Legal Professionals: Given the complexities of separation and divorce, particularly in common-law marriages, it is essential to consult experienced family law attorneys or legal professionals. They can provide guidance tailored to the specific circumstances and the relevant state or country laws.
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Frequently asked questions
A common-law marriage is a legally recognized marriage between two people who haven't purchased a marriage license or engaged in a ceremony overseen by an officiant.
Nine states and the District of Columbia recognize common-law marriages. Some of the states that recognize common-law marriages are Pennsylvania, Alabama (abolished in 2016), and Illinois (abolished in 1905). California does not recognize common-law marriages created within the state but does recognize those created in other states.
The requirements for a common-law marriage vary by state. However, some general requirements include living together, presenting themselves as a married couple to the public, and having the legal ability to marry.
Yes, couples in a common-law marriage may be eligible for financial benefits such as tax deductions, inheritance, and Social Security. They also have the right to determine how their assets will be divided in the event of a separation.
A common-law marriage can only be legally ended by divorce in states where it is recognized. Couples who separate may also need to file for separation or head of household with the IRS if they live in a state that does not recognize common-law marriage.
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