Kara Sears
Common-law marriage, also known as marriage without formalities or informal marriage, is a legally recognized marriage between two people who have not purchased a marriage license or had a marriage ceremony. Instead, the couple cohabits and consents to live like spouses. Common-law marriage is not recognized in all U.S. states, and each state has its own rules and guidelines for what qualifies as a common-law marriage. As of 2022, common-law marriages are recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia, while Utah, South Carolina, and New Hampshire have limited recognition. Some states, such as Alabama, Florida, Georgia, and Idaho, only recognize common-law marriages that began before a certain date. The recognition of common-law marriage varies widely across the U.S., and it is important for couples to understand the specific requirements and legal implications in their state.
| Characteristics | Values |
|---|---|
| Common law marriage recognition | Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia |
| Utah, South Carolina, and New Hampshire have limited recognition | |
| Alabama, Florida, Georgia, Idaho, Indiana, Ohio, and Pennsylvania have abolished common law marriage but recognize marriages that began before a certain date | |
| States that do not recognize common law marriage | Wisconsin, California, and most other states |
| Requirements for common law marriage | Must live together for a certain period of time, present as a married couple, and intend to be married |
| Divorce | Common law marriages require a traditional divorce process |
| Same-sex marriage | Recognized in common law |
| Origin | Originated in the harsh conditions of colonial America due to the lack of clerics or civil officials |
| Definition | "The body of law derived from judicial decisions, rather than from statutes or constitutions" |
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What You'll Learn
Common-law marriage in the United States
The origins of common-law marriage are uncertain. It is arguably the original form of marriage, where a couple took up residency together, presented themselves as a married couple, and otherwise behaved as a married couple. It is claimed that common-law marriage in the US originated in colonial America, where there were few clerics or civil officials to conduct ceremonial marriages.
Today, common-law marriages are still recognised in some states, including 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. For example, in Utah, a court or administrative order must validate the relationship, and the couple must meet certain requirements, such as being of legal age and having cohabited. In New Hampshire, common-law marriages are rarely recognised and are typically only acknowledged when determining inheritance after one party's death.
Some states have abolished common-law marriage but still recognise it if the relationship began before a certain date or for a specific purpose. For example, Alabama recognises common-law marriage if the marriage began before 1 January 2017, and Florida recognises it if created before 1 January 1968. All states recognise common-law marriages if a couple is married in a common-law marriage state, even if they do not contract common-law marriages within their state.
The recognition of common-law marriage has significant consequences, as couples found to have a common-law marriage will be granted the rights and obligations of a spouse under the law of their state. For example, in Colorado, common-law marriage enables couples to file joint taxes and enjoy other benefits typically afforded to married couples.
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Common-law marriage in the United Kingdom
In the United Kingdom, common-law marriage is not recognised as a legal status that provides certain rights and protections to a couple. This means that even if a couple has lived together for many years, they do not have the same legal rights and protections as a married couple. This is a common misconception, with many people thinking that they have acquired rights similar to those of married couples after cohabiting for a long time.
There can be significant implications for couples who choose to live together without getting married. Unmarried couples do not have the same rights as married or civil-partnered couples when it comes to dividing finances, parental rights, and inheritance rights. For example, if an unmarried partner dies without a will, the surviving partner does not automatically inherit their assets, including the family home, and would have to make a costly application to the court for provision from the estate as a dependent.
However, there are steps that unmarried couples can take to protect themselves and their assets. One way is to draw up a legal agreement called a cohabitation contract or living together agreement, which outlines the rights and obligations of each partner towards each other. This can include a 'declaration of trust', which specifies how they share their property. Another option is to make a will, which offers protection for unmarried couples by allowing them to address what will happen to their assets when they are no longer alive.
Since 2006, laws in Scotland have differed slightly from the rest of the UK. For example, ownership of household goods bought during the time the couple lived together is ruled to be jointly owned, and their share is split equally.
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Common law and statutes
Common law is "the body of law derived from judicial decisions, rather than from statutes or constitutions." Common law originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. It is sometimes called "judge-made law" or "case law".
In the United States, common law has been gradually abolished over the centuries, with most states not legally recognizing common-law marriages. However, a few states still recognize common-law marriages, including Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, Utah, and the District of Columbia. These states have different requirements for a long-term relationship to qualify as a common-law marriage, such as living together for a certain amount of time and presenting themselves as a married couple to others.
The recognition of common-law marriages can have significant consequences, as couples found to be in a common-law marriage will be granted the rights and obligations of a spouse under the law. For example, in Colorado, common-law marriages allow couples to file joint taxes and enjoy other benefits typically afforded to married couples.
While the majority of states do not contract common-law marriages within their state, they will typically recognize these unions if they are contracted by a different state. This is due to the Constitution's full faith and credit clause, which states that states must respect the laws of other states.
Statutes are generally understood to supersede common law. They may codify existing common law, create new causes of action, or legislatively overrule the common law. Common law still has practical applications in some areas of law, and it continues to be a basis for law in newer states.
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Common law and same-sex marriage
Common-law marriage in the United States has a long and complex history, with its origins in colonial America where there were few clerics or civil officials to conduct ceremonial marriages. Today, only a few states recognize common-law marriages, and each has its own unique requirements and guidelines. This recognition varies from state to state, with some states only allowing common-law marriages contracted before a certain date or under specific circumstances.
While same-sex marriage has been legalized across the United States since 2015, the recognition of same-sex common-law marriages is more nuanced. The U.S. Supreme Court decision in Obergefell v. Hodges affirmed that same-sex couples must be permitted to marry on equal terms as different-sex couples, including the recognition of common-law marriages in states where they are valid. This decision has provided a pathway for same-sex couples to have their relationships retroactively recognized as common-law marriages, even in states where same-sex marriage was not previously legal.
In states like Pennsylvania and South Carolina, courts have recognized same-sex common-law marriages that predated the legalization of same-sex marriage in those states. This recognition has allowed same-sex couples to access important rights and benefits, such as social security, alimony, and inheritance. Additionally, in states that do not recognize common-law marriages at all, same-sex couples who meet the requirements may still be able to obtain a declaration of a common-law marriage date, which can impact the length of their marriage, a factor considered in divorce proceedings.
While the recognition of same-sex common-law marriages has improved, it is not universal. Some states with limited recognition of common-law marriages, like New Hampshire, may only recognize them for specific purposes, such as inheritance. Additionally, some states with conflicting laws or recent abolishment of common-law marriages may create uncertainty for same-sex couples seeking recognition.
Overall, while the legal landscape is evolving, same-sex couples seeking to establish a common-law marriage or have their existing union recognized should consult an attorney familiar with the specific laws and requirements of their state or jurisdiction.
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Common law and cohabitation agreements
Common-law marriage is a legally recognised marriage between two people who have not purchased a marriage license or solemnised their marriage through a ceremony. It is said to be the original form of marriage, where a couple takes up residency together, presents themselves as a married couple, and otherwise behaves as one. Common-law marriage is not recognised in all 50 states, but some states that do include Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, and Utah.
The requirements for a common-law marriage to be recognised vary from state to state. For example, in Utah, a court or administrative order must establish that the parties are of legal age, capable of giving consent, and legally capable of entering a solemnised marriage. They must have cohabited, mutually assumed marital rights and obligations, and presented themselves as a married couple to others.
Cohabitation agreements are contracts that establish rules for property division, financial responsibilities, and other matters for couples who live together but are not married. These agreements can help formalise certain rights and obligations between partners, such as what should happen to assets if they separate. They can also provide peace of mind and save legal headaches if drafted properly. Like prenuptial agreements, cohabitation agreements cannot waive or limit child support, but they can include guidelines for child support in the event of a separation.
In the United States, as of 2022, common-law marriages are still recognised in a few states, while some states have limited recognition. While the majority of states do not contract common-law marriages, they will typically recognise these unions if they are contracted by a different state. For example, California does not recognise common-law marriage, but it would recognise a common-law marriage obtained in a state that does.
The recognition of common-law marriage has a long history, dating back to colonial America, where the presence of few clerics or civil officials made ceremonial marriages inaccessible. Over time, with the influence of the Catholic Church and specific marriage requirements introduced by the Council of Trent, common-law marriage has gradually been abolished in Western nation states. Today, it persists in a limited capacity in the United States, with specific requirements and recognition varying across states.
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Frequently asked questions
Common law is a body of law derived from judicial decisions, rather than from statutes or constitutions.
Common law still has practical applications in some areas of law. However, it is no longer widely recognised in Western nation states.
Common law marriage is only recognised in a few US states, including Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, Utah and the District of Columbia.
The requirements for a common law marriage vary from state to state. However, some general requirements include living together for a certain amount of time, presenting as a married couple, and exchanging words of intent to be married.
Yes, in 2015 the US Supreme Court ruled in Obergefell v. Hodges that same-sex couples have the right to marry, including under common law.
