Cameron Miranda
Common-law marriage, also known as marriage without formalities or informal marriage, is a valid way for a couple to marry without a ceremony, license, or certificate. While it is recognized in very few states, those that do include Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, and Utah, as well as the District of Columbia. Each state has different requirements for a long-term relationship to qualify as a common-law marriage, and it is important for couples to understand the legal ramifications of informal unions.
| Characteristics | Values |
|---|---|
| Definition | "A legally recognized marriage between two people who have not purchased a marriage license or had their marriage solemnized by a ceremony." |
| Recognition | Very few states recognize common-law marriages. These include Alabama, Colorado, District of Columbia, Florida, Georgia, Indiana, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Ohio, Pennsylvania, South Carolina, Texas, Utah, and Idaho. |
| Requirements | The requirements to contract a valid common-law marriage differ between jurisdictions. In general, couples must meet the requirements in their state, including living together for a certain period, exchanging words of intent to be married, and holding themselves out as spouses to others. |
| Dissolution | There is no such thing as a "common-law divorce." Divorce must be done by statutory law in all jurisdictions. |
| Benefits | In states that recognize common-law marriages, couples may be entitled to the same benefits as legally married couples, especially upon the death of one partner or separation. |
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What You'll Learn
Common law marriage states
Common law marriage, also known as sui juris marriage, informal marriage, marriage by habit and repute, or marriage in fact, is a form of irregular marriage that does not require a marriage license, ceremony, or certificate. Instead, it is based on a couple's mutual agreement to be married and their public recognition as a married couple. While common law marriage has been gradually abolished in many places, it is still recognized in some states in the United States.
In the United States, common law marriage is recognized in a handful of states, with each state having its own specific requirements. The states that currently recognize common law marriage include:
- Colorado
- Iowa
- Kansas
- Montana
- Rhode Island
- Oklahoma
- Texas
- District of Columbia
Additionally, some states have limited recognition of common law marriages or recognize them for specific purposes. These states include:
- Alabama (if created before January 1, 2017)
- Georgia (if created before January 1, 1997)
- Idaho (if created before 1996)
- Indiana (if created before January 1, 1958)
- New Hampshire (for inheritance or probate purposes)
- Ohio (if entered before October 1991)
- Pennsylvania (if entered before September 2003 or January 1, 2005)
- South Carolina
- Utah (if validated in a judicial proceeding)
It is important to note that the requirements for a long-term relationship to qualify as a common law marriage vary by state. These requirements often include living together for a certain period, although the length of time depends on the state.
While common law marriage is not recognized in all 50 states, all states must recognize a common law marriage that was validly formed in a state that does recognize it. This is due to the Full Faith and Credit Clause of the United States Constitution, which requires states to respect the laws of other states.
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Requirements to qualify
Common law marriage is only recognised in a handful of states in the US. Each state has its own rules and requirements that must be met for a long-term relationship to qualify as a common-law marriage.
To qualify as a common-law marriage, couples must meet the following requirements:
- Both parties must be at least 18 years old.
- The couple must live together for a certain period of time, which varies depending on the state.
- The couple must be legally free to marry.
- The couple must intend to be married and hold themselves out as husband and wife to others.
- The couple must be known to the community as husband and wife.
In Texas, couples can prove their common-law marriage by filing a legal "Declaration of Informal Marriage", which is a legally binding document that must be completed by both partners and sworn in the presence of the County Clerk. Alternatively, couples can meet a three-prong test, showing evidence of the above requirements.
It is important to note that the laws regarding common-law marriage are constantly evolving, and some states have abolished it altogether. Therefore, it is always best to consult an attorney to determine if you live in a common-law marriage state and understand your legal rights.
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Legal protections and benefits
Common-law marriage is a legally recognised marriage without a ceremony, certification, or public record. In the United States, only 15 states and the District of Columbia recognise common-law marriages. Each state has its own requirements, which may include the couple's length of cohabitation, their legal capacity to marry, and their intent to be married.
Common-law marriages are generally afforded the same rights and protections as ceremonial marriages. These include:
- Inheritance rights and property ownership: In the event of a spouse's death, the surviving spouse in a common-law marriage must provide evidence of the marriage to inherit property or receive benefits.
- Social Security and tax benefits: Common-law spouses may be eligible for the same Social Security and tax benefits as legally married couples.
- Alimony and allowances: In the event of a divorce, the female spouse may be entitled to alimony and allowances unless she left her partner for no valid reason, had an affair, or mutually agreed to separate.
- Protections against domestic violence: Common-law spouses are protected under the Domestics Violence Act of 2005 and Section 125 of the Criminal Code, which provide for allowances, shelter, and protections for female partners in cases of abuse.
- Child custody: Children born within common-law marriages are granted allowances until they reach adulthood.
- Power of attorney: A common-law spouse can be granted power of attorney to access their partner's financial accounts.
- Healthcare directives: A common-law spouse can make medical decisions on behalf of their partner if they become incapacitated.
It is important to note that the legal protections and benefits available to common-law spouses may vary depending on the state and specific circumstances. Additionally, while some countries like Canada may recognise certain rights and responsibilities for couples in marriage-like relationships, they are not considered legally married.
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Common law divorce
Common law marriages are legally recognised in some U.S. states. However, there is no such thing as a "common law divorce". If a couple lives in a state that recognises common-law marriage, they must pursue a standard divorce like any couple who married through traditional means.
The process of divorce from a common-law marriage varies by state, as not all states recognise common-law marriages, and those that do may have specific requirements for proving the marriage existed. In states that recognise common-law marriage, individuals must demonstrate the validity of their union, often through evidence like cohabitation, shared finances, or public acknowledgment of the relationship.
The biggest difference between a traditional and common-law divorce is that traditionally married couples document their union with a state-issued license, whereas a common-law marriage does not have a similar paper trail. This can make it difficult to prove a couple has become married under common law, which is a necessary first step to getting divorced.
The requirements for common-law marriage are set by the states, not the federal government, and can vary significantly. One common feature is that partners must show that they were not already married to someone else before beginning the common-law marriage. They also must have been of legal marriage age.
In some states, couples who live together can qualify as married under common law. This typically applies when a couple has lived together for a certain amount of time and acts as spouses would, like filing joint tax returns or assuming the other’s last name.
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Misconceptions about common law marriage
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that occurs without a license or ceremony. Instead, it is an agreement between two people capable of entering a marriage, who intend to be married, live together as a married couple, and hold themselves out to the world as a married couple.
Despite the prevalence of the term, common-law marriage is not recognized in most states. Here are some misconceptions about common-law marriage:
"Common-law marriage is recognized in all states"
Common-law marriage is not recognized in most states today. While couples who marry under common law may have their marriage recognized in states where it is not on the books, it is not a given that all states will recognize common-law marriages.
"Cohabitation automatically leads to common-law marriage"
Cohabitation alone does not constitute a common-law marriage. While cohabitation is an important factor, it is not enough to prove a common-law marriage. The couple must also present themselves as a married couple to the world, and both partners must intend to be married.
"Common-law marriage grants the same rights as a 'regular' marriage"
While a common-law marriage grants the same legal rights as a "regular" marriage, it can be difficult to prove that a common-law marriage exists. This is because there is no simple test to determine if a couple qualifies as married under common law, and the determination is often made by a court.
"All I need is a seven-year relationship for a common-law marriage"
The length of a relationship does not automatically grant a common-law marriage. While some states may require a minimum period of cohabitation, there is no "magic number" of years that guarantees a common-law marriage.
"Parental rights are dependent on the status of the relationship"
In Washington State, parental rights are dependent on one's status as a parent, not on the status of the relationship. Biological or adoptive parents have the same legal rights to their children, regardless of whether the parents are in a common-law marriage or not.
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Frequently asked questions
A common-law marriage is a marriage that results from the parties' agreement to consider themselves married, followed by cohabitation, rather than through a statutorily defined process.
Common-law marriage is not recognised in all jurisdictions. In the US, only certain states recognise common-law marriage, but all states recognise legal marriages from other states. Same-sex couples can enter into a common-law marriage in Texas. In India, the Supreme Court has defined "a relationship in the nature of marriage" as akin to a common-law marriage. Australia does not recognise common-law marriage.
There is no formula for determining a common-law marriage. However, there are some general criteria that must be met. Both parties must be of marriageable age, not already married, and qualified to marry. They must live together voluntarily in a way that seems to society that they are married, and they must cohabit for a "significant" period.
Proving a common-law marriage can be complicated. Evidence that may be used includes introducing yourselves to others as husband and wife, telling people you are married, greeting cards and messages that refer to the couple as in-laws, and addressing Christmas cards as "Mr. and Mrs.".
A common-law marriage can only be ended by a legal divorce or death. The divorce process for a common-law marriage is the same as for any other marriage.
