Keith Mack
Common-law marriage, an informal type of marriage where couples do not have a marriage license, marriage ceremony, or marriage certificate, is currently recognized in only a handful of U.S. states. The requirements to contract a valid common-law marriage differ between jurisdictions, and while it may be difficult to prove such a marriage, it carries the same weight as a ceremonial marriage and requires the same formal judicial proceeding for dissolution.
| Characteristics | Values |
|---|---|
| Number of states that recognize common-law marriage | 7 (fully or with limitations) or 9, plus the District of Columbia |
| States that recognize common-law marriage | Alabama (if created before 1 January 2017), Florida (if created before 1 January 1968), Georgia (if created before 1 January 1997), Indiana (if created before 1 January 1958), Ohio (if created before 10 October 1991), Pennsylvania (if created before 1 January 2005), Colorado, Montana, Texas, New Hampshire, New York |
| Requirements | Couples must meet the requirements of their state, which may include living together for a certain period, such as seven or 10 years, and presenting themselves as a married couple to the public |
| Dissolution | Common-law marriages cannot be dissolved by "common-law divorce". Formal judicial proceedings, such as divorce or annulment, are required. |
| Same-sex couples | Recognized since the 2015 Obergefell v. Hodges Supreme Court ruling |
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What You'll Learn
Common law marriage requirements vary by state
Common-law marriage is a term often used to refer to cohabiting couples, regardless of their legal rights. It is the original form of marriage, in which a couple cohabits, holds themselves out to the world as a married couple, and otherwise behaves as a married couple. Common-law marriages are not common in the USA, as they are only recognised in a handful of states. These include Colorado, Montana, Texas, Oklahoma, and New Hampshire. The requirements for a common-law marriage vary by state, and some states have unique specifications.
For example, Texas law states that if a couple does not commence proceedings to prove their relationship as a marriage within two years of ending their cohabitation, the law will consider that they were not in a common-law marriage. In Utah, you must file a petition for an "unsolemnized marriage" while still in the relationship or within a year of splitting up.
In Colorado, the Supreme Court revised the elements for common-law marriage in 2021, in light of changing social practices and the Obergefell v. Hodges case. This case also had a retroactive effect, allowing lawyers to seek benefits for common-law same-sex spouses, even if one partner died decades ago.
In New Hampshire, common-law marriage is only recognised posthumously for probate purposes. In Ohio, common-law marriage was abolished in 2004 due to concerns about gay marriage.
The recognition of common-law marriages can vary depending on the state a couple moves to. For example, if a couple is common-law married in Texas and moves to California, which does not recognise common-law marriage, California will still recognise their marriage.
The requirements for a common-law marriage to be considered legal vary by state, and it is essential to consult the specific laws and requirements of each state.
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Common law marriage is recognised in some states
Common-law marriage is a legally recognised marriage between two people who haven't purchased a marriage license or participated in a ceremony officiated by a priest or other officiant. While it is not recognised by all US states, common-law marriage is currently permitted in several of them.
The number of states that recognise common-law marriage varies according to different sources. One source states that nine states and the District of Columbia recognise such marriages, while another source states that seven states and DC recognise them. The discrepancy may be due to the dynamic nature of the laws surrounding common-law marriage, which change over time.
The states that recognise common-law marriage include Colorado, Montana, and Texas, which are the only states to recognise both putative marriage and common-law marriage. Other states that recognise common-law marriage include Alabama (if created before 1 January 2017), Florida (if created before 1 January 1968), Georgia (if created before 1 January 1997), Indiana (if created before 1 January 1958), Ohio (if created before 10 October 1991), and Pennsylvania (if created before 1 January 2005).
To be recognised as a common-law marriage, couples must meet the requirements set by their state. These requirements can vary between states and may include living together for a consistent period, such as seven or ten years, and introducing themselves as a married couple to friends, neighbours, and coworkers. In Texas, there is no specification on the length of time a couple must cohabit, but they must show an agreement to be married and hold themselves out as married to the public. In Utah, a couple must file a petition for an "unsolemnized marriage" while still in a relationship or within one year of splitting up.
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Common law marriage and divorce
Common-law marriage, also known as informal marriage, is a way for two people to become legally married without a ceremony or certification of marriage. Common-law marriage requires the couple to be legally free to marry, intend to be married, and be known to the community as a married couple. While the specific requirements vary across states, common features include demonstrating that neither party was already married and that both were of legal marriage age. Some states also require cohabitation for a certain period.
Common-law marriage is currently recognized in nine U.S. jurisdictions: Colorado, Montana, Texas, Rhode Island, and five others. This is a decrease from the 1990s, when it was recognized in 13 states. The decline is partly due to concerns about creating a loophole for gay marriage, as well as the gradual abolition of common-law marriage in Western nations over the centuries.
To dissolve a common-law marriage, a couple must go through the same formal judicial proceedings as a conventionally married couple. However, a key difference is that a common-law married couple must first prove they were legally married under their state's laws, despite not having a marriage license. This can be done through evidence such as cohabitation, shared finances, or public acknowledgment of the relationship.
In some states, there is a statute of limitations for petitioning for divorce from a common-law marriage. For example, in Texas, if no party decides to petition for divorce within two years of separation, it is considered that the couple was never married. Similarly, in Utah, a petition for an "unsolemnized marriage" must be filed while the couple is still together or within a year of splitting up.
Overall, while common-law marriage is recognized in a small number of U.S. states, dissolving such a marriage requires the same legal process as a conventional marriage, with the additional step of proving the validity of the marriage.
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Common law marriage and same-sex couples
Common-law marriage in the United States refers to an informal marriage where couples do not have a marriage license, ceremony, or certificate. Instead, they take up residency together, hold themselves out to the world as a married couple, and otherwise behave as a married couple.
In the US, common-law marriage is only recognized in seven states and Washington, DC. These include Alabama, Florida, Georgia, Indiana, Ohio, Pennsylvania, and Texas. However, the requirements to contract a valid common-law marriage differ between jurisdictions. For example, in Texas, there is no specification on the length of time a couple must cohabit, whereas in Colorado, the Supreme Court revised the elements for common-law marriage in 2021.
Same-sex couples can be married under common law. In 2015, the Supreme Court ruled in Obergefell v. Hodges that same-sex couples have the right to marry, and the Respect for Marriage Act of 2022 provides further protections for these marriages. Same-sex marriage is now legally recognized in a large majority of developed countries, and the number of same-sex married couples in the US has been increasing each year, except between 2018 and 2019. As of 2023, the highest share of married households headed by same-sex couples was in Washington, DC (5.96%), followed by Delaware (2.34%).
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Common law marriage and cohabitation
The concept of common-law marriage is often used to refer to cohabiting couples, irrespective of their legal rights. This has created confusion around the term and the legal rights of unmarried partners. Common-law marriage, also known as informal marriage, is a marriage without the legal formalities of a marriage license or ceremony. It is a marriage that is legally recognised even without a ceremony or certification.
Common-law marriage is only recognised in a few states in the USA, including Colorado, Montana, Texas, Oklahoma, and New Hampshire. The requirements for a common-law marriage vary between states. For example, in Texas, there is no specification on the length of time a couple must cohabit, but they must live together, agree to be married, and hold themselves out as married to the public. In Utah, you must file a petition for an "unsolemnized marriage" while still in the relationship or within a year of splitting up.
The basic features of a common-law marriage are that the couple intends to be married, they act on that intention by living together and holding themselves out publicly as a married couple, and they meet the basic requirements under state law. It is important to note that cohabitation is not enough to prove a common-law marriage, and judges will look at the couple's actions and specific circumstances to decide if a valid common-law marriage exists.
The term "common-law marriage" is often used incorrectly to describe cohabitation or other legally recognised relationships. While some countries may extend rights and responsibilities to cohabiting couples, they are not legally considered married. For example, in the UK, 51% of respondents to a 2008 poll incorrectly believed that cohabitants had the same rights as married couples. In the US, there are over 1300 legal rights that come with marriage, and common-law marriage is no longer recognised in many states due to the possibility of it being a loophole for gay marriage.
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Frequently asked questions
A common-law marriage is an informal marriage where couples do not have a marriage license, marriage ceremony, or marriage certificate.
Common-law marriage is recognized in Colorado, Montana, Texas, Ohio, California, New Hampshire, and the District of Columbia. Alabama, Florida, Georgia, Indiana, Pennsylvania, and Utah are some states that previously recognized common-law marriage.
The requirements for a common-law marriage vary by state. Generally, couples must live together, introduce themselves as a married couple, and agree to be married.
Common-law marriages cannot be dissolved through a "common-law divorce." Instead, couples must go through the same formal judicial proceedings as statutory marriages, such as annulment or divorce proceedings.
