Kara Sears
In the United States, common-law marriage is a way for couples to be recognized as husband and wife without obtaining a marriage license. While some states recognize common-law marriage, North Carolina is not one of them. In North Carolina, couples must obtain a marriage license and have a ceremony officiated by a licensed official to be legally married. However, North Carolina will recognize a common-law marriage if a couple is legally common-law married in a state that recognizes it and then relocates to North Carolina.
| Characteristics | Values |
|---|---|
| Common law marriage recognized | No |
| Abolished common law marriage | 1989 |
| Requirements for marriage | Marriage license and ceremony officiated by a licensed official |
| Recognition of common law marriage from other states | Yes |
| Divorce requirements | Same as other states, including separation period |
| Property law | Common law property state |
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What You'll Learn
Common-law marriage in North Carolina
In North Carolina, common-law marriage is not recognized. This means that simply living together as a couple, regardless of the time spent together, does not create a legal marriage under North Carolina law. To be legally married in North Carolina, couples must obtain a marriage license and have a ceremony officiated by a licensed official. The officials recognized by North Carolina include magistrates, ministers, other church officials, and anyone else who is legally ordained in the state. It is important to note that judges cannot perform marriages in North Carolina.
Despite North Carolina's non-recognition of common-law marriage, the state will acknowledge a common-law marriage that was established in another state. In such cases, the couple must have cohabited in a state that recognizes common-law marriage, and both parties must have been 18 years or older and of sound mind. The Court of North Carolina can establish the date the declaration of Common-Law Marriage began.
Although North Carolina does not recognize common-law marriage, cohabitating couples may still have legal rights and obligations related to property, debt, and other issues. For example, North Carolina is a common-law property state, meaning that in matters of real estate law, properties are generally considered individually owned unless both parties' names are on the title or deed.
In the case of divorce, common-law married couples must go through the same legal process as a couple with a marriage license. This includes a separation period of one year, followed by a formal divorce process. During this process, issues of property division, alimony, child support, and child custody will be addressed.
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Common-law divorce in North Carolina
In North Carolina, common-law marriages are not recognized. The state abolished common-law marriage in 1989. For a couple to be legally married in North Carolina, they must obtain a marriage license and have a ceremony officiated by a licensed official. Simply living together, regardless of the duration, does not constitute a legal marriage in the state.
However, if a couple is common-law married in a state that recognizes such marriages and subsequently relocates to North Carolina, the state is required to recognize the marriage. In the event of a divorce, a common-law married couple in North Carolina would have to go through the same legal process as a couple with a marriage license.
To file for divorce in North Carolina, one spouse must have been living in the state for at least six months before filing. The state refers to divorce as "absolute divorce," and there is no requirement to prove that either spouse is at fault. There are only two grounds for divorce in North Carolina: incurable insanity of one spouse and living separate and apart for three consecutive years, including at the time the petition is filed.
The divorce process in North Carolina may involve issues such as property division, alimony, child support, and child custody. There is no standard form for filing for equitable distribution, and it is often a complicated process. Judges consider various factors when deciding on alimony, including the earnings and earning capacity of each party, age, education, health, length of marriage, property, contributions during the marriage, and marital misconduct.
It is important for couples who are cohabitating in North Carolina to consider creating a cohabitation agreement, as they may still have legal rights and obligations related to property, debt, and other issues.
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Common-law marriage in other states
In the United States, common-law marriage, also known as sui juris marriage, informal marriage, or marriage by habit and repute, is a form of irregular marriage that is only recognised in a few jurisdictions. The concept varies by state, and some states do not recognise it at all. Even in states that do recognise common-law marriage, the requirements for what constitutes a valid common-law marriage can vary. For example, in Texas, a couple can file a legal "Declaration of Informal Marriage", which is a legally binding document that must be completed by both marriage partners and affirmed in the presence of the County Clerk. Alternatively, a couple can meet a three-pronged test, which includes showing evidence of cohabitation within the state of Texas as husband and wife.
As of 2022, common-law marriages are recognised in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia, while Utah, South Carolina, and New Hampshire have limited recognition of common-law marriage. For example, New Hampshire only recognises common-law marriages for inheritance purposes.
Although North Carolina does not recognise common-law marriage, it will recognise a valid common-law marriage that was entered into in another state. This is because the full faith and credit clause of the U.S. Constitution requires North Carolina to recognise valid marriages from other states. However, if a couple with a valid common-law marriage relocates to North Carolina and subsequently separates, they must go through the same formal divorce process as a couple with a marriage license.
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Requirements for legal marriage in North Carolina
North Carolina does not recognise common-law marriage. This means that simply living together as a couple, regardless of the length of time, does not create a legal marriage under North Carolina law. To be legally married in North Carolina, couples must obtain a marriage license and have a ceremony officiated by a licensed officiant.
Requirements for marriage licenses in North Carolina
Marriage licenses can be obtained from the Register of Deeds in any county in the state. Both partners must be present in person and provide a valid government-issued ID and proof of their social security number. Applicants must pay a fee and fill out a form stating their names, ages, marital status, and intention to marry. There is no waiting period between the issuance of the marriage license and the wedding, but the license expires after 60 days if the wedding has not taken place.
Who can be legally married in North Carolina?
To be legally married in North Carolina, both parties must intend to marry, must not be currently married to anyone else, and must be able to understand their actions. Both parties must be at least 18 years old, although minors aged 16 and 17 may marry if a person with legal custody of the minor gives written consent. The couple cannot be more closely related than first cousins and cannot be double first cousins.
Who can officiate a marriage in North Carolina?
A wedding can be performed by a magistrate or by any minister who is ordained in a religious denomination or authorised by a church. Marriages can also be performed in the recognised manner of any religious denomination that does not use officiants or in the recognised manner of any federally or state-recognised Native American tribe.
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Common-law property in North Carolina
North Carolina is a common-law property state, meaning that properties are generally considered individually owned unless both parties' names are on the title or deed. This is in contrast to community property systems, where spouses jointly own assets regardless of whose name appears on the title.
In North Carolina, each spouse owns and controls any property they acquire during the marriage and titles in their name. When one spouse dies, they will determine what happens to their property. The surviving spouse is not entitled to the decedent spouse's property unless a written agreement specifies otherwise or unless the surviving spouse makes a timely claim for a statutory share of the decedent's property.
North Carolina is also an equitable distribution state, meaning that when spouses are unable to resolve property rights on their own, the court determines a fair and reasonable distribution. This does not mean that the distribution will necessarily be equal. The court considers various factors, including income, the duration of the marriage, and contributions to marital assets. For example, retirement accounts can contain separate and marital property, and the gains or losses due to market forces are divisible between the spouses.
It is important to note that North Carolina does not recognize common-law marriage. Simply living together as a couple, regardless of the length of time, does not create a legal marriage under North Carolina law. To be legally married in North Carolina, couples must obtain a marriage license and have a ceremony officiated by a licensed officiant.
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Frequently asked questions
No, North Carolina does not recognize common-law marriage. Simply living together as a couple, regardless of the length of time, does not create a legal marriage under North Carolina law.
To be legally married in North Carolina, couples must obtain a marriage license and have a ceremony officiated by a licensed official.
Yes, North Carolina will recognize a common-law marriage if the couple relocates from a state that recognizes common-law marriage.
Yes, North Carolina is a common-law property state. This means that properties are generally considered individually owned unless both parties' names are on the title or deed.
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