Cecily Zamora
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a legally recognized marriage between two people who have not purchased a marriage license or engaged in a ceremony. While it is not a nationwide practice, it is permitted in several U.S. states, including Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, and the District of Columbia. In these states, a common-law marriage is just as valid and legally binding as a formalized marriage, and couples are eligible for most of the financial benefits of a married couple. However, it's important to note that the requirements for a common-law marriage vary by state, and some states have specific conditions, such as age requirements or mental capacity. So, is it illegal to get married while already being in a common-law marriage? The answer may depend on the specific circumstances and the laws of the state in question.
| Characteristics | Values |
|---|---|
| Definition | Common-law marriage, also known as non-ceremonial 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. |
| History | Common-law marriage has existed since medieval Europe and ancient Greece and Rome, where it was a private agreement between individuals and estates. In colonial America, common-law marriage survived and is still recognised in some states today. |
| Recognition | Common-law marriage is not recognised nationwide in the US or the UK. It is recognised in some US states, including Colorado, Iowa, Kansas, Montana, Oklahoma, Texas, and the District of Columbia. Some provinces in Canada may extend rights and responsibilities similar to marriage to common-law couples, but they are not legally considered married. |
| Requirements | Requirements for common-law marriage vary by jurisdiction but generally include eligibility to be married, cohabitation, and the intention to be married, holding themselves out in public as a married couple. |
| Benefits | Common-law spouses who meet their state's requirements are eligible for most financial benefits of a married couple, including tax breaks, inheritance rights, and Social Security. |
| Dissolution | Common-law marriages must be legally dissolved through divorce if the couple separates. |
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What You'll Learn
Common-law marriage recognition in the US
The recognition of common-law marriage varies across the United States. A common-law marriage is an informal marriage where couples do not have a marriage license, ceremony, or certificate. Instead, the couple must meet the requirements of their state to have their common-law marriage recognised. These requirements include the capacity to enter into a marriage, being of legal age, cohabitation, and publicly presenting themselves as a married couple.
Several states recognise common-law marriage, each with unique stipulations and requirements. For example, Colorado requires cohabitation, mutual agreement, and public representation as a married couple. Iowa mandates intent to marry, continuous cohabitation, and public declaration.
The status of common-law marriage in Utah is unclear. Government websites claim that common-law marriage does not exist in Utah, but other legal websites state that "non-matrimonial relationships" may be recognised as marriages within one year of the relationship ending.
Some states have abolished common-law marriage but still recognise common-law marriages that began before a certain date. For example, Alabama abolished common-law marriage effective January 1, 2017, but common-law marriages contracted before this date are still valid.
All states recognise common-law marriages if a couple is married in a common-law marriage state. This is due to the Full Faith and Credit Clause in the U.S. Constitution, which mandates states to respect other states' laws. However, conflicts can arise when a couple moves from a common-law marriage state to a state that does not recognise common-law marriage, such as California. In such cases, legal consultation is crucial to navigate the complexities of proving marital status for matters like inheritance or spousal rights.
It is important to note that the recognition of common-law marriage can change over time, and it is always advisable to seek legal advice to determine one's marital status and associated legal rights.
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Common-law marriage in Texas
In Texas, common-law marriage, also known as "'marriage without formalities' or "informal marriage", is a valid and legal way for a couple to marry. The requirements for a common-law marriage are very specific. It is a common misconception that living together for a certain period of time automatically results in a common-law marriage. While living together is a requirement, there is no durational requirement to establish a common-law marriage.
To enter into a common-law marriage in Texas, both parties must:
- Agree that they are married
- Live together as husband and wife
- "Hold out" to others that they are married
The third requirement means that the parties must represent to others that they are married. This can be done through spoken words or actions, such as introducing each other as spouses, wearing rings on ring fingers, or signing credit applications as a married couple.
Couples can register their common-law marriage by filing a declaration with their county clerk's office. If they choose not to declare their common-law marriage, documents such as lease agreements, tax returns, and insurance policies may be requested to prove the marriage. If there is a dispute about the existence of a common-law marriage, it may be necessary to go to court to prove the marriage. Texas law places a two-year statute of limitations on these types of proceedings.
Like those in a formal marriage, couples who want to end a common-law marriage must file for divorce. If two years pass after a common-law marriage couple separates and neither party has filed anything to prove the marriage, the state presumes that the marriage never existed, making it harder to prove that a common-law marriage existed.
Once a common-law marriage is proven, it has no "lesser status" than a formal marriage. Under Texas law, all property acquired during a marriage, whether formal or common-law, is considered community property and will be divided equally in the event of a divorce. Debts accumulated during a common-law marriage are also divided between the spouses. Proving a common-law marriage can also affect inheritance rights. If a spouse dies without a will, the surviving spouse is entitled to inherit from them.
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Common-law marriage in the UK
In the UK, common-law marriage is a widely used term to describe a couple living together for a long time without being married or in a civil partnership. However, it is important to note that common-law marriages are not legally recognised in the UK. This means that cohabiting does not automatically grant couples the same legal rights, protections and responsibilities as married couples. For instance, cohabiting couples do not have the same property rights, financial support entitlements or inheritance rights as married couples.
Although common-law marriage is not legally recognised in the UK, there are still ways for cohabiting couples to protect their finances and legal rights. One option is to create a cohabitation agreement or a living together agreement, which outlines the rights and obligations of each partner. Another option is to take out life insurance, which can provide a financial safety net for a couple in the event of a partner's death.
The misconception about the legal status of common-law marriage in the UK is not unique to the country. In Canada, for instance, while some provinces may grant couples in marriage-like relationships certain rights and responsibilities akin to marriage, they are not legally considered married. They may be legally defined as "unmarried spouses" and treated as married spouses for specific purposes such as taxes and financial claims.
The idea of common-law marriage has been a topic of discussion among UK politicians, including shadow attorney general Emily Thornberry. She has cited regimes in New Zealand, Scotland and Ireland as examples to consider when making legislative improvements in this area of law. Implementing a form of common-law marriage or a 'de facto' relationship status could provide greater legal protection for the financially weaker party in a relationship. However, there has also been resistance to such reforms, with concerns that they might undermine marriage and impose unwanted rights on couples.
In summary, while the term common-law marriage is commonly used in the UK to describe unmarried cohabiting couples, it does not confer any legal rights or recognition. Cohabiting couples who wish to protect their legal and financial rights may consider alternative options such as cohabitation agreements or life insurance policies.
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Common-law marriage history
The history of common-law marriage dates back to medieval Europe, where marriages were primarily private agreements between individuals and estates. Community recognition of a marriage was what qualified it as a marriage, and civil and religious officials rarely took part in marriage ceremonies or kept registries. In medieval Europe, canon law recognized marriages in which the parties stated they took each other as husband and wife, even without witnesses.
In the United States, common-law marriage, or sui juris marriage, informal marriage, marriage by habit and repute, or marriage in fact, is a form of irregular marriage that only survives in a few states and the District of Columbia. The origins of common-law marriage in the US can be traced back to the colonial era, where legal systems mirrored those of England. In colonial America, it was much harder to find a qualified cleric or wedding officiant, and many couples considered themselves married under common law out of necessity. The first state in the US to officially recognize common-law marriage was Alabama in 1847.
In Canada, couples in marriage-like relationships may be granted many of the rights and responsibilities of a marriage, but they are not legally considered married. They may be defined as "unmarried spouses" and treated the same as married spouses in certain contexts, such as taxes and financial claims.
Today, common-law marriages are still recognized in some US states, including Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. In these states, couples in a common-law marriage may qualify for various federal benefits, including spousal retirement, survivor benefits, and disability benefits.
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Common-law marriage and divorce
A common-law marriage, also known as a non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a legally recognised marriage between two people who have not purchased a marriage license or participated in a ceremony overseen by an officiant. Common-law marriages are permitted in several US states, including Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, and South Carolina. However, the specific requirements for common-law marriage vary by state. For example, in Kansas, couples must be mentally capable of committing, be 18 or older, and represent themselves as married in the community. In New Hampshire, common-law marriages are recognised solely for inheritance purposes.
While the term "common-law marriage" is often used to describe cohabiting couples, regardless of their legal rights or religious implications, a true common-law marriage is a legally recognised union. This means that, just like in a traditional marriage, couples in a common-law marriage must file for divorce if they want to separate. The process of divorcing from a common-law marriage can be more complex than a traditional marriage, as the couple must first prove that their common-law marriage existed and was valid under state law. This can be done through evidence such as cohabitation, shared finances, or public acknowledgment of the relationship.
In some states, there are specific requirements for common-law marriages to be recognised. For example, in Texas, there is a two-year statute of limitations for petitioning for a divorce from a common-law marriage. If no party decides to petition for divorce within that time frame, it is treated as if the couple was never married. Additionally, some states, like Rhode Island, have specific requirements that must be met before a union can be considered a common-law marriage.
It is important to note that not all jurisdictions permit common-law marriages, and the recognition of these marriages can vary between states and countries. For example, in Canada, while couples in marriage-like relationships may be granted certain rights and responsibilities, they are not legally considered married. Similarly, in the United Kingdom, there is no definitive law surrounding common-law marriages in England and Wales, and while couples in Scotland can make limited claims in the event of separation or death, it is not considered a common-law marriage.
Overall, while common-law marriages are legally recognised in some US states, the specific requirements and processes for divorce can vary by state. It is always advisable to seek legal advice when considering a divorce, especially in the case of common-law marriages, to ensure that the rights and responsibilities of both parties are understood and protected.
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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. Common-law marriage is permitted in several US states.
No, it is not illegal to get married while common-law married. However, if you are common-law married and then wish to marry someone else, you must first legally end the common-law marriage.
A civil union is a legal relationship between two people that confers rights only on a state level. Civil unions do not provide any right to federal protections or benefits. Common-law marriages, on the other hand, are legally recognised in certain states and confer many of the same rights as a formal marriage.
