Anaya Nolan
The concept of common-law marriage refers to a couple who live together but are not legally married or in a civil partnership. Despite popular belief, this does not confer the same legal rights as a legally married couple. The recognition of common-law marriages varies depending on the region, with very few states in the US and no legal recognition in countries like Scotland and Canada. In some cases, cohabiting couples may have certain rights and obligations, such as means-tested benefits, but these are not equivalent to the rights of married spouses. The term common-law marriage is a misnomer, as it implies a legal status that does not exist in most places. Instead, it is a social or colloquial usage that describes a couple's living arrangement and mutual commitment without the legal formalities of marriage.
| Characteristics | Values |
|---|---|
| Legal recognition | Common-law marriage is not recognised federally in Australia, Canada, or the US. However, some US states, including Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, and Utah, still recognise it to some extent. |
| Legal rights | In states that allow common-law marriage, couples may have the same rights as formally married couples. However, in many areas of the law, cohabitants have no special rights. |
| Requirements | There is no statutory requirement for the length of time a couple needs to live together. However, generally, the longer they live together, the stronger their case is for common-law marriage. Both partners must have the legal capacity to marry, intend to be married, and hold themselves out as a married couple. |
| Proving common-law marriage | Depending on the location, certain legal documents may be required to prove common-law marriage. |
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What You'll Learn
Common-law marriage in the US
In the United States, a common-law marriage is a legal marriage that does not require a formal wedding ceremony, marriage license, or marriage certificate. Instead, it is a marriage established by the couple's actions and their intent to be recognised as a married couple. While the specific requirements vary across states, the general elements of a common-law marriage include cohabitation, capacity to marry, and holding themselves out as a married couple to their community.
To establish a common-law marriage, couples typically need to live together for a certain period, although there is no statutory requirement for the duration. The court considers the length of cohabitation on a case-by-case basis, and generally, the longer the couple lives together, the stronger their case for common-law marriage. Both partners must also have the legal capacity to marry, meaning they must be at least 18 years old, of sound mind, and not already married to someone else.
The key aspect that distinguishes a common-law marriage from simple cohabitation is the couple's intent and reputation in the community. They must behave as a married couple and hold themselves out to friends, family, and the public as being married. This can include using the same last name, referring to each other as husband and wife, and filing joint tax returns. It is important to note that simply living together, even for an extended period, does not automatically create a common-law marriage.
Currently, only a handful of states fully recognise common-law marriages, including Alabama (if created before January 1, 2017), Florida (if created before January 1, 1968), Georgia (if created before January 1, 1997), Indiana (if created before January 1, 1958), Ohio (if created before October 10, 1991), and Pennsylvania (if created before January 1, 2005). Some states have abolished common-law marriage but still recognise those established before a certain date or for specific purposes. Additionally, all states must recognise common-law marriages that were validly formed in another state, according to the United States Constitution's full faith and credit clause.
The recognition of common-law marriage varies widely across states, and it is important for couples to understand the legal ramifications of their union. While some states grant common-law spouses the same rights and obligations as formally married couples, others provide limited recognition or none at all. Seeking legal advice from a family law attorney in one's state is essential to understanding the specific requirements and protections afforded to common-law marriages.
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Common-law marriage in the UK
The term "common-law marriage" has been used in England and Wales to refer to unmarried, cohabiting heterosexual couples. However, this is simply a social term. It does not grant cohabiting couples the same rights and obligations as married couples or civil partners. While unmarried partners are recognised for certain purposes in legislation, such as means-tested benefits, they are not under any legal requirement to maintain one another financially. For example, the Jobseekers Act 1995 defines an "unmarried couple" as a man and a woman who live together as husband and wife but are not married.
In medieval Europe, marriage was under the jurisdiction of canon law, which recognised as valid a marriage in which the parties stated that they took each other as husband and wife, even in the absence of any witnesses. In modern times, common-law marriage is a legal marriage that is informal, meaning the married couple did not have a formal wedding ceremony, marriage license, or marriage certificate. In states that allow common-law marriage, couples in a common-law marriage have the same rights as a married couple who went through a formal marriage process. Generally, a married couple is considered common-law married when they live together (cohabitation), hold themselves out to friends, family, and the community as "married", and have the legal right or "capacity" to marry.
In the UK, common-law marriage does not exist. However, in Scotland, cohabiting couples have a few basic rights if their relationship ends. There have been discussions about introducing common-law marriage in the UK, with politicians such as shadow attorney general Emily Thornberry citing regimes in New Zealand, Scotland, and Ireland as examples to follow. Implementing a form of common-law marriage would provide a safety net and greater legal protection for the financially weaker party in a relationship. Resistance to such reform is based on fears that new laws will undermine marriage and impose rights on couples that do not want them.
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Common-law marriage in Scotland
In Scotland, common-law marriage is not recognised as a legal status. It is a common misunderstanding that a couple will have established a common-law marriage after cohabiting for a period of time. This concept is referred to in Scots law as 'marriage by cohabitation with habit and repute'. This type of irregular marriage was rarely used in practice and was abolished by the Family Law (Scotland) Act 2006, except for very particular circumstances.
The term 'common-law husband or wife' is often used but has no legal standing. However, Scotland does recognise legal rights for cohabitants. The law relating to cohabitation came into effect on 4 May 2006, granting cohabitants certain rights and obligations. To qualify as cohabitants, couples must cohabit for a moderate period and hold themselves out to the world as husband and wife.
Cohabitants in Scotland have some similar rights to married couples, such as the right to apply for financial provision from their partner in the event of the relationship ending or their partner's death. However, the range of orders the court can make is more limited than in a divorce, and it can be difficult to advise what award a court may grant.
In conclusion, while common-law marriage is not a legal concept in Scotland, the country does recognise the rights of cohabitants, providing some similar protections to those in a formal marriage.
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Common-law marriage in Israel
In Israel, marriage is governed by religious law. The law known as "the king's council", passed in 1922 during the British Mandate, states that different religious sects have the sole right to rule in matters of wedlock. This means that only couples of the same religion can be legally married in Israel, and inter-faith marriages performed within the country are not recognised.
As a result, common-law marriage has become an increasingly popular alternative for couples who are not eligible for religious marriage or who reject it for ideological reasons. Common-law marriage in Israel is defined as two adult partners of any gender, religion, or nationality who live together and share financial responsibilities as a family unit without being legally married. It is estimated that 180,000 couples live together in common-law marriage in Israel, 45% of whom have anchored their relationship in a legal contract.
Common-law marriage provides a legal alternative for same-sex couples, interfaith couples, and bi-national couples who are not eligible for religious marriage in Israel. It also allows couples to avoid the restrictions imposed by the ultra-orthodox rabbinate and other religious authorities. While common-law relationships are not registered by the Interior Ministry and the personal status of the partners remains 'single', common-law partners can prove their eligibility for status and rights equal to married couples with Domestic Union Cards and contractual marriage. These cards are issued by advocacy groups upon the submission of an affidavit describing the relationship.
Same-sex couples in common-law marriages in Israel are eligible for equal recognition in areas such as pensions, tax benefits, parenting leave, and child allowances. However, not all benefits are automatically awarded to common-law couples. For example, women in common-law relationships are not exempt from army service, and the process of receiving residency status for a foreign common-law spouse is lengthier than for a foreign married spouse.
While common-law marriage in Israel provides a legal alternative for couples who cannot or choose not to marry, it is important to note that it is not fully equivalent to a traditional legal marriage in all respects. This can have implications in certain situations, such as visa applications, where a common-law partner may not be eligible for derivative visa status based on marriage.
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Common-law marriage in Canada
In Canada, common-law marriage is not a legally recognised institution. However, informal cohabitation relationships are recognised for certain purposes, creating legal rights and obligations. The criteria for common-law relationships vary across the country, with each province defining the term differently.
In Nova Scotia, a couple is considered to be in a common-law relationship if they live together in a marriage-like relationship and publicly refer to themselves as partners or spouses. The length of time a couple must live together depends on the issue being addressed. In Saskatchewan, a couple must live together continuously for at least two years to be considered common-law. In Quebec, a couple is considered common-law for tax purposes after living together for at least two years. It is important to note that in Quebec, unless legally married, a spouse will not be entitled to anything in the event of their partner's death.
In British Columbia, a couple is considered common-law after living together in a marriage-like manner for at least two continuous years or if they have lived together for less than two years but have a child together. In Alberta, a common-law relationship is called an Adult Interdependent Relationship, and it is defined as a couple living in a relationship of interdependence for at least three continuous years or in a relationship of some permanence with a child together.
While there is no legal process for ending a common-law relationship in Canada, it is typically done by separating from the partner, ceasing to live together, and annulling any cohabitation agreement. Common-law partners are generally only entitled to everything they personally own, and having a will is important in these cases.
In terms of taxes, common-law partners are recognised by the Canada Revenue Agency, and they are considered to be in a "conjugal relationship" with their partner. This includes couples who have lived together for at least 12 continuous months, including any periods of separation of less than 90 days due to a breakdown in the relationship.
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Frequently asked questions
A common-law wife is a term sometimes used to describe a couple who live together but are not married or in a civil partnership.
Common-law marriage is not a legal status in Scotland, England, Wales, or Australia. In the US, common-law marriage is only recognized in a few states and the District of Columbia. These include Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, and Utah.
The requirements for a common-law marriage vary depending on the state. However, generally, both partners must have the legal capacity to marry, intend to be married, and hold themselves out to friends, family, and the public as being a married couple.
