Kara Sears
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 still recognized in a handful of U.S. states and the District of Columbia. It is a marriage without legal formalities like a marriage license, ceremony, or certificate. While the recognition of common-law marriage varies across states, the key principle is that if a couple's relationship meets the requirements for a common-law marriage in one state, other states must recognize this union as legally valid, even if they have moved to a state that does not typically recognize such marriages.
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What You'll Learn
- Common law marriage is no longer common, with most US states discontinuing the practice
- A common law marriage is a legally recognised informal union without a marriage license or ceremony
- If a couple moves to a state that doesn't recognise common law marriage, their marriage should still be valid
- Common law spouses must meet state requirements to access financial benefits like Social Security
- Some states have abolished common law marriage but recognise unions formed before a certain date
Common law marriage is no longer common, with most US states discontinuing the practice
Common-Law Marriage Is No Longer Common
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 no longer common in the United States. Over the years, most states have discontinued the practice through laws or court decisions (case law). As of 2022, only seven US states and the District of Columbia recognize common-law marriages, with an additional two states recognizing them for limited purposes.
History of Common-Law Marriage
The origins of common-law marriage are uncertain, but it is argued to be the original form of marriage. In colonial America, the scarcity of clerics or civil officials made ceremonial marriages difficult, so couples established a substitute. As settlers moved west, the need for common-law marriages grew.
Current Recognition of Common-Law Marriage
The following US states continue to recognize common-law marriages, albeit with varying requirements:
- Colorado
- Iowa
- Kansas
- Montana
- Rhode Island
- Oklahoma
- Texas
- New Hampshire (for probate purposes only)
- Utah (only those validated in a judicial proceeding)
Moving Between States
If a couple has a legitimate common-law marriage in a state that allows it and then moves to a state that doesn't, their marriage should still be valid in their new state. This is because Article IV of the US Constitution requires states to give "full faith and credit" to the laws of other states, including marriage laws. However, where proof of marriage is required, such as in divorce or probate courts, the couple would need to prove that their marriage was recognized in the state where it originally took place.
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A common law marriage is a legally recognised informal union without a marriage license or ceremony
In the United States, common law marriages are only recognised in a handful of states, and the specifics vary by state. Some states have abolished common law marriage but still recognise these unions if they began before a certain date or for a specific purpose. For example, Alabama, Florida, Georgia, Indiana, and Ohio all recognise common law marriages created before a certain date. Other states that recognise common law marriages include Colorado, Iowa, Kansas, Montana, New Hampshire, Texas, Utah, and the District of Columbia.
To be recognised as a common law marriage, couples must meet the requirements set by the state. These requirements may include living together for a consistent period, such as seven or ten years, and presenting themselves publicly as a married couple to friends, neighbours, and coworkers. They may also need to share finances, such as leases, mortgages, bank accounts, and credit cards, and neither partner should be married to anyone else.
If a couple enters into a valid common law marriage in a state that allows it and then moves to a state that doesn't, their marriage should still be valid in their new state. This is because the US Constitution requires states to give "full faith and credit" to the laws of other states, including marriage laws. However, if a couple splits in a state that doesn't recognise common law marriage, they may be subject to the laws of that state regarding separation and property division.
It's important to note that the recognition of common law marriages is evolving, and some sources suggest that it is becoming less common for states to allow these informal marriages. As such, it is always advisable to seek up-to-date legal advice for your specific situation.
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If a couple moves to a state that doesn't recognise common law marriage, their marriage should still be valid
The concept of common-law marriage is no longer common, with most states in the US having stopped allowing these informal marriages. Only a handful of states have common-law marriages, and a few others have limited common-law marriage. Common-law marriages are formed without legal formalities like taking out a marriage license or having a religious or civil ceremony.
If a couple moves to a state that doesn't recognize common-law marriage, their marriage should still be valid. This is because Article IV of the U.S. Constitution requires states to give "full faith and credit" to the laws in other states, including marriage laws. For example, if a couple lives in Texas and meets the state's criteria for a common-law marriage, and then moves to another state that does not have a common-law marriage statute, their marriage should still be recognized in the new state. However, where proof of marriage is required, such as in divorce or probate courts, the couple would have to prove that the marriage was recognized in the state where it originally took place. This may require getting a declaration from a court in the original state.
Additionally, some states that previously recognized common-law marriages will still generally recognize them if couples satisfied all the requirements before such marriages were banned. For example, Georgia, Idaho, New Hampshire, Ohio, and Pennsylvania all fall under this category.
It is important to note that common-law marriages can only be legally ended by divorce in states where the practice is recognized. In terms of taxes, common-law couples cannot file joint tax returns with the IRS if they live in a state where common-law marriage isn't recognized; they must file separately or as the head of the household.
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Common law spouses must meet state requirements to access financial benefits like Social Security
A common law marriage is an informal marriage where couples do not have a marriage license, marriage ceremony, or marriage certificate. Only a handful of states recognize common-law marriages, and even then, the requirements vary from state to state. If a couple moves to another state that does not recognize common-law marriages, their marriage may still be valid in their new state of residence if it was valid in the state where it was established.
For common-law spouses to access financial benefits like Social Security, their marriage must be recognized by the Social Security Administration (SSA). The SSA follows state law when determining whether a couple has a valid marriage. This means that if a couple's common-law marriage is valid in their state, the SSA will recognize it as such and they will be entitled to the same benefits as a couple in a traditional marriage.
To establish a common-law marriage, couples must meet the requirements of their state, which generally include the intention to be married and presenting themselves as such. In some states, additional requirements must be met. Once a couple has established a valid common-law marriage in their state, they can access financial benefits like Social Security. They will need to provide the SSA with evidence of their common-law marriage, such as signed statements from both spouses and blood relatives attesting to their belief in the existence of the marriage.
It is important to note that spouses cannot receive their Social Security Disability Insurance (SSDI) payment and the full spousal benefit simultaneously. Instead, they can receive a combination of the two that amounts to the highest benefit they are eligible for. Additionally, same-sex couples who established valid common-law marriages under state law before 2015 are entitled to the same benefits as opposite-sex couples following the U.S. Supreme Court's decision in Obergefell v. Hodges.
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Some states have abolished common law marriage but recognise unions formed before a certain date
The recognition of common-law marriages varies across different states in the US. While some states continue to recognize common-law marriages, others have abolished them or recognize them only for limited purposes. Notably, some states have abolished common-law marriage but still recognize unions formed before a certain date.
Alabama, for instance, abolished common-law marriage effective January 1, 2017. However, common-law marriages contracted before this date are still considered valid. Similarly, Florida, Georgia, Indiana, and Ohio have also set dates before which common-law marriages are recognized.
The recognition of common-law marriages formed in other states is also important to consider. According to Article IV of the US Constitution, states without common-law marriage provisions must still recognize marriages from other states. This is known as the "full faith and credit" clause. For example, a couple with a common-law marriage in Colorado who moves to Ohio or California, where common-law marriages are not recognized, will still have their marriage legally recognized in their new state.
While the recognition of common-law marriages is evolving, with some states abolishing the practice, many states continue to honor these unions, especially those formed before specific dates or in other states. It is always advisable to seek legal advice to understand the specific laws and requirements in each state.
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Frequently asked questions
A common-law marriage is a legally recognised marriage between two people who haven't purchased a marriage license or engaged in a ceremony overseen by an officiant.
As of 2022, common-law marriages are recognised in 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.
Requirements vary from state to state, but they include being old enough to get married, having the mental capacity to enter into a marriage, living together, and publicly presenting as a married couple.
Common-law marriages are only recognised in a few states. However, if a couple has a legitimate common-law marriage in a state that allows it and then moves to a state that doesn't, their marriage should still be valid. This is because Article IV of the U.S. Constitution requires states to recognise the laws of other states.
Common-law married couples enjoy many of the same benefits as legally married couples, including inheritance rights, tax benefits, and medical benefits.
