Gavin Howe
The concept of a common-law marriage is often used to describe various types of couple relationships, such as cohabitation or other legally formalized relations. While these interpersonal relationships are often called common-law marriages, they are not legally recognized as marriages in many places. Common-law marriage is a complex legal area that varies by jurisdiction, and it is important to understand the specific laws and requirements of your location. In general, a common-law marriage is considered valid by both partners and is treated as a legal marriage, but it is not formally recorded or celebrated in a traditional ceremony. It often requires cohabitation and a mutual understanding of being a married couple.
Is my girlfriend a common-law partner?
| Characteristics | Values |
|---|---|
| Common-law marriage recognised | Only in a handful of US states (including Washington, D.C.), Canada, and some other countries |
| Requirements | Both partners must intend to be married and behave as a married couple, holding themselves out to friends, family, and the public as being married |
| Time requirement | No specified time requirement, but the longer a couple lives together, the stronger their case is for common-law marriage |
| Legal rights | In some states, common-law marriages are treated the same as traditional marriages, granting many of the same legal rights |
| Divorce | The divorce process for common-law marriages is the same as for traditional marriages |
| Inheritance | In some places, common-law partners can inherit property from their deceased partner |
| Name change | Common-law partners can change their last name to match their partner's |
| Tax breaks | Common-law partners may be eligible for tax breaks |
| Not recognised | Ireland, California, Alabama |
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What You'll Learn
Common-law marriage requirements by state
The concept of common-law marriage is often used to describe unmarried, cohabiting relationships. It is a marriage without a license, ceremony, or certificate. However, it is a misconception that living together for a certain period, often believed to be seven years, leads to a common-law marriage.
In the United States, only a handful of states recognize common-law marriages, and each state has its own requirements for a couple to be considered legally married under common law. These requirements include:
- Both partners must intend to be in a common-law marriage and share their lives in a committed, intimate relationship with the legal and social responsibilities of marriage.
- The couple must present themselves as a married couple to their community and use words like "husband," "wife," or "spouse" when referring to each other.
- There is no specified time for a common-law marriage to take effect, but the relationship must be significant.
- Texas
- Oklahoma
- New Hampshire (for inheriting property from a deceased partner)
- Utah (only if validated in a judicial proceeding)
- Washington, D.C.
It is important to note that the laws regarding common-law marriage are subject to change, and some states have moved to abolish it. Therefore, it is advisable to consult an attorney or refer to the family laws of your state for the most up-to-date information.
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Rights and responsibilities of common-law partners
The rights and responsibilities of common-law partners vary depending on the jurisdiction. In some countries, common-law marriages are legally recognized, while in others, the term is used colloquially to describe cohabiting couples who are not legally married. Here is an overview of the rights and responsibilities of common-law partners in different jurisdictions:
Canada
In Canada, common-law partners have similar rights and responsibilities to married couples in certain areas. They can be obligated to provide financial support to each other during and after the relationship, depending on factors such as the length of the relationship and financial dependency. Common-law partners also have the right to make healthcare decisions for each other in the event of incapacitation, and they have equal rights to child custody and support, regardless of marital status. Additionally, they are entitled to insurance benefits if named as a beneficiary and can access their partner's pension and social benefits. However, laws vary across provinces and territories, so seeking legal advice is recommended.
United Kingdom
In the UK, the term "common-law partner" is often used to describe cohabiting couples who are not married or in a civil partnership. However, legally speaking, this term has no rights or obligations associated with it. Unmarried couples do not have the same rights as married couples, regardless of the length of their relationship or the presence of children. To protect their rights, cohabiting couples can create a cohabitation agreement, outlining ownership rights, financial responsibilities, and arrangements for children.
Ireland
Ireland does not recognize common-law marriage. However, the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (in force between 2010 and 2015) provided some rights to unmarried cohabitants. After the legalization of same-sex marriage in 2015, civil partnerships are no longer available, but existing ones remain valid.
Kuwait
In Kuwait, family courts apply the law of the male partner's country of nationality. While Kuwait does not recognize common-law marriage, it may consider partnerships from other countries where they are recognized. However, intercourse outside of marriage is illegal in Kuwait, limiting the practical application of this recognition.
Other Considerations
It is important to note that the term "common-law partner" is often used incorrectly and can lead to confusion about legal rights and responsibilities. To clarify their rights, couples should seek legal advice specific to their jurisdiction and consider creating cohabitation agreements to outline their rights and responsibilities regarding property, finances, and children.
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How to prove a common-law marriage
The term "common-law marriage" is often used incorrectly to describe various types of unmarried couple relationships, such as cohabitation or other legally formalized relations. It is important to note that common-law marriage is not recognized in all states or countries, and the laws and requirements may vary depending on the location.
To prove a common-law marriage, the following criteria generally need to be met:
- Both partners must intend to establish a common-law marriage and share their lives in a committed, intimate relationship with all the legal and social responsibilities of marriage. This includes presenting themselves as a married couple to family, friends, and the larger community, and using words like "husband," "wife," or "spouse" when referring to each other, both informally and in documents.
- The couple must meet the general marriage requirements in their state or country, such as both spouses being at least 18 years old (or having parental consent if younger) and having the mental capacity to understand the commitment and consequences of marriage.
- The couple must have established their relationship while living in a state or country that recognizes common-law marriages for all purposes. It is important to note that the requirements and recognition of common-law marriage can vary depending on the jurisdiction.
- The couple can provide evidence and documents to support their claim of a common-law marriage, such as affidavits, property deeds, bank statements, loan documents, leases, mortgages, credit card accounts in both names, and other records indicating familial status.
It is important to note that proving a common-law marriage can be complex and may depend on various factors, including the specific laws and requirements of the state or country in question. Seeking legal advice or consulting with a family lawyer can be helpful in understanding the specific criteria and evidence required to prove a common-law marriage in a particular jurisdiction.
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Common misconceptions about common-law marriage
Misconception 1: Cohabitation automatically leads to common-law marriage
Cohabitation alone does not constitute a common-law marriage. While the requirements for common-law marriage vary slightly among states, the two essential elements are cohabitation and "holding out". Holding out means the couple's actions and presentation of themselves to the world as husband and wife. For example, the woman might assume her husband's last name, or the couple might file a joint tax return.
Misconception 2: Common-law marriage is recognized everywhere
Common-law marriage is not recognized in most states. And where it does exist, there is no simple test to see if a couple qualifies as married under common law. Only eight states in the U.S. (plus Washington, D.C.) allow couples to establish new common-law marriages in those states for all purposes. Other states may recognize common-law marriages if they existed before a certain date, and one state recognizes them for a limited purpose.
Misconception 3: Common-law marriage automatically kicks in after a certain number of years
There is no specified time for a common-law marriage to take effect, but the relationship must be significant. The seven-years-to-automatic-marriage idea is a myth. The length of time a couple has lived together is not a deciding factor in whether their relationship qualifies as a common-law marriage.
Misconception 4: Common-law marriage is easy to prove
It can be complicated to prove that your relationship qualifies as a valid common-law marriage. Judges have to weigh all the evidence, including how family and friends view the relationship, and make a decision based on the total picture.
Misconception 5: Common-law marriage is the same as a "regular" marriage
A common-law marriage is a marriage that takes legal effect without the prerequisites of a marriage license or participation in a marriage ceremony. However, a person who has a marriage by common law has the same legal rights as a person who was married in a religious ceremony or in front of a judge or magistrate.
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Common-law marriage and same-sex couples
The recognition of common-law marriage varies by jurisdiction, and it is important to consult an attorney familiar with the application of this status in the jurisdiction where you live. Common-law marriage is a marriage that takes legal effect without the prerequisites of a marriage license or participation in a marriage ceremony. It is a marriage by express agreement of the parties by words uttered in the present tense for the purpose of establishing a marriage where the couple subsequently holds themselves out as married.
In the United States, only 16 states recognize common-law marriage, and the requirements to prove a common-law marriage may vary from state to state. Generally, evidence and testimony are taken regarding the exchange of words in the present tense, indicating the couple's intention to be married, and other evidence that the couple acted as a married couple publicly. For example, presenting themselves to family, friends, and the larger community as a married couple, using words like "husband," "wife," or "spouse" when referring to each other, and sharing joint bank accounts or credit cards. Importantly, prolonged cohabitation alone is not indicative of a common-law marriage.
Some states, such as Texas, Washington, D.C., and New Hampshire, recognize same-sex common-law marriages. In Pennsylvania, a same-sex common-law marriage will be recognized if contracted before January 1, 2005, even though the state did not recognize same-sex marriages until 2014. In South Carolina, a court ruled that a same-sex couple who lived together for about 40 years had a common-law marriage, and this ruling was applied retroactively.
In Canada, while some provinces may extend to couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married and may be defined as "unmarried spouses" for tax and financial purposes. In Ireland, common-law marriage is not recognized, but the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (in force between 2010 and 2015) gave some rights to unmarried cohabitants.
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Frequently asked questions
A common-law partner is someone who is in a common-law marriage. This is a marriage that is considered valid by both partners but is not formally recorded with a state or religious registry, nor celebrated in a formal civil or religious service.
There are varying criteria for a common-law marriage depending on the state or country. However, some general criteria include:
- Both partners must intend to be married
- Both partners must present themselves to friends, family, and the public as being a married couple
- Both partners must have the legal capacity to marry (e.g. be at least 18 years old and of sound mind)
- The couple must live together (cohabitation) for a certain amount of time (this is usually a significant amount of time but is not specified)
In some states or countries, common-law marriages are treated the same as traditional marriages, and common-law partners are granted the same legal rights as a formally married couple. These rights can include tax breaks, inheritance rights, alimony, and child custody. However, it is important to note that this varies depending on the specific state or country's laws.
To determine if you and your girlfriend are common-law partners, you need to consider the criteria for common-law marriage in your specific state or country. Both partners must intend to be married and present themselves as a married couple. Additionally, you may need to live together for a certain amount of time and meet the legal capacity to marry. If you meet these criteria and live in a state or country that recognizes common-law marriage, you may be considered common-law partners.
