Keith Mack
The concept of common-law marriage, or a marriage resulting from cohabitation and mutual agreement rather than a formal ceremony, is not universally recognized. While some countries, like Kuwait, offer limited recognition in specific cases, others, like Australia, do not recognize common-law marriages at all. In the United States, recognition varies across states, with some recognizing both domestic and foreign common-law marriages, while others do not recognize them at all. The validity of a common-law marriage in a foreign country is determined by the laws of that country, and it is advisable to consult with legal professionals in the relevant jurisdictions to understand the specific requirements and recognition of such marriages.
| Characteristics | Values |
|---|---|
| Common law marriage recognition in foreign countries | Not all jurisdictions permit common law marriage, but will typically respect the validity of such a marriage lawfully entered in another state or country. |
| Common law marriage recognition in the US | The US generally recognizes marriages performed abroad as long as they follow local laws. |
| Common law marriage recognition in individual US states | Colorado, Montana, and Texas are the only US states to recognize both putative marriage and common law marriage. California abolished the common law contract of marriage in 1895 but recognizes out-of-state common law marriages. New Hampshire recognizes domestic common law marriage for probate purposes only. Utah recognizes common law marriages that have been validated in a judicial proceeding. |
| Common law marriage recognition in other countries | Many countries, especially in Europe, may not recognize common law marriages. |
| Common law marriage recognition in Kuwait | Kuwait has limited recognition of common-law marriage or partnerships in the case of expatriate familial disputes, such as maintenance payments and child support dues. |
| Common law marriage recognition in Australia | Australia does not have common law marriage, but de facto relationships have been recognized in the Family Law Act (Commonwealth) since March 1, 2009. |
| Common law marriage recognition in Scotland | Scotland does not recognize common-law marriage, but it previously had a form of irregular marriage called "marriage by cohabitation with habit and repute," which was abolished in 2006. |
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What You'll Learn
Common-law marriage recognition in the US
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 survives only in a handful of U.S. states and the District of Columbia, along with some provisions of military law. The term "common-law marriage" is often used colloquially to refer to cohabiting couples, regardless of their legal rights. The core inquiry is whether the parties intended to enter a marital relationship, sharing a life together as spouses in a committed, intimate relationship of mutual support and obligation.
The Supreme Court has established the requirements for a common-law marriage to be considered valid: both parties must be of marriageable age, not already married, and qualified to marry; they must be cohabiting voluntarily for a "significant" period, and their relationship must be viewed by society as a marriage. While the specific requirements vary by state, the general concept of common-law marriage is consistent.
Some states have abolished common-law marriage but still recognize such marriages if they began before a certain date or for a specific purpose. These include Alabama (abolished in 2017 but still recognized if created before this date), Florida (if created before 1968), Georgia (if created before 1997), Indiana (if created before 1958), Ohio (if created before 1991), and Pennsylvania (if created before 2005).
USCIS recognizes common-law marriages for naturalization purposes if the marriage is valid and recognized by the state in which it was established, even if the application is filed in a jurisdiction that does not recognize common-law marriage. This recognition extends to same-sex marriages, as the Supreme Court held that the Defense of Marriage Act (DOMA), which limited marriage to opposite-sex couples, was unconstitutional.
It is important to note that the recognition of common-law marriages in foreign countries is complex. Many countries, especially in Europe, may not recognize common-law marriages, and some have recently outlawed them within their borders. For those seeking international recognition of their common-law marriage, it is advisable to contact the appropriate ambassador, consulate, diplomat, and/or attorney for assistance.
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Common-law marriage in Kuwait
Common-law marriage, also known as non-ceremonial marriage, is a marriage that results from the parties' agreement to consider themselves married, followed by cohabitation, rather than through a statutorily defined process. Not all jurisdictions permit common-law marriage, but will typically respect the validity of such a marriage lawfully entered in another state or country.
In Kuwait, common-law marriages or partnerships have some limited recognition in the cases of expatriate familial disputes, such as maintenance payments and child support dues. Family courts use the law of the male partner's country of nationality to deal with family matters. Hence, if the male partner comes from a country where partnerships or other similar unions are recognized, then a Kuwaiti court can also consider it. However, intercourse outside of marriage is illegal in Kuwait, so such recognition can only apply in exceptional cases. No recognition is extended to couples where one or both parties are Kuwaiti or to homosexual couples.
In general, marriages performed abroad are locally valid marriages, provided that they comply with all applicable laws of the foreign city, state, and country where they take place. These marriages are also generally recognized by the US. However, the question of whether a valid American marriage will be recognized in a foreign country is complex, and it is recommended to consult an experienced family law attorney in such cases. Many countries, especially European nations, may not recognize common-law marriages.
In ancient Greece and Rome, marriages were private agreements between individuals and estates, with community recognition of a marriage being what largely qualified it as a marriage. There was no formal civil or religious service, and civil and religious officials took no part in marriage ceremonies and did not keep registries. In Scotland, common-law marriage does not exist, although there was a type of irregular marriage called 'marriage by cohabitation with habit and repute', which was abolished in 2006. Australia also does not have common-law marriage, although de facto relationships have been recognized in the Family Law Act since 2009.
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Common-law marriage in Scotland
Common-law marriage, also known as non-ceremonial marriage, informal marriage, de facto marriage, or marriage by habit and repute, 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 marriages are not recognized in all jurisdictions, but those that do not typically respect the validity of such marriages lawfully entered into in another state or country.
In Scotland, common-law marriage does not exist. However, there was a form of irregular marriage called 'marriage by cohabitation with habit and repute', which was abolished by the Family Law (Scotland) Act 2006. This type of marriage could apply to couples in special circumstances until 2006, and only irregular marriages established before 4 May 2006 are recognized.
To qualify for this type of marriage, the couple had to be free to marry each other and be believed to be married by their community, including friends, relatives, and the public at large. This form of marriage was rarely used in practice and was almost completely abolished following the change in the law in 2006.
While common-law marriage is not recognized in Scotland, the country does have legal rights for cohabitants. Cohabitants are defined as a man and woman or two persons of the same sex who live together as if they were married or civil partners. These cohabitants have certain rights, such as the ability to apply to the Court for financial provision in the event of the breakdown of a relationship or the death of a partner. However, the range of orders the court can make is more limited compared to married couples, and strict time limits apply.
It is important to note that the recognition of common-law marriages can vary across different countries and jurisdictions. For example, while Australia does not have common-law marriage, it does recognize de facto relationships in the Family Law Act, which is similar to common-law marriage in other countries. Similarly, while the term \"common-law marriage\" has been used in England and Wales to refer to unmarried cohabiting heterosexual couples, it does not carry legal standing. In the United States, common-law marriages are recognized for purposes of naturalization if the marriage is valid and recognized by the state in which it was established, even if the application is filed in a jurisdiction that does not recognize such marriages.
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Common-law marriage in Australia
Australia does not recognize common-law marriage. Instead, the term "de facto relationship" is used to describe relationships between two people who are not married but live together under certain domestic circumstances. De facto relationships have been recognized in the Family Law Act (Commonwealth) since March 1, 2009, and are applicable in states that have referred their jurisdiction on de facto couples to the Commonwealth's jurisdiction. Western Australia, which has not referred its jurisdiction, still upholds state legislation.
De facto relationships are formed when couples live together in a genuine domestic relationship for two years, even without their knowledge. These relationships provide most of the same rights and responsibilities as marriages. For instance, when a de facto partnership ends, assets are split similarly to married couples going through a divorce. Either person can make a claim on the other's property, savings, or superannuation.
In contrast, a common-law marriage, also known as a non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that results from the couple's agreement to consider themselves married, followed by cohabitation, rather than a statutorily defined process. While not all jurisdictions permit common-law marriage, they will typically respect the validity of such marriages lawfully entered in another state or country. The original concept of a "common-law" marriage is one considered valid by both partners but not formally recorded with a state or religious registry or celebrated in a formal civil or religious service.
In Scotland, common-law marriage does not exist, although there was a type of irregular marriage called 'marriage by cohabitation with habit and repute' that applied to couples in special circumstances until 2006. In ancient Greece and Rome, marriages were private agreements between individuals and estates, with community recognition largely determining what qualified as a marriage.
In Kuwait, common-law marriages have limited recognition in expatriate familial disputes, such as maintenance payments and child support dues. However, as intercourse outside of marriage is illegal in Kuwait, this recognition only applies in exceptional cases.
Regarding the recognition of foreign marriages in Australia, marriages performed abroad are generally recognized as valid in Australia as long as they comply with all applicable laws of the foreign city, state, and country where they take place. The rules governing the validity of overseas marriages in Australia are outlined in the Marriage Act 1961.
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Recognition of foreign marriages in the US
The recognition of marriages performed abroad by the US is a complex issue. In general, a marriage that is legally valid in a foreign country will also be considered valid in the United States, as long as the marriage complies with the laws of the country where the ceremony occurred. The US Department of State has stated that marriages performed abroad are locally valid marriages, provided that they comply with all applicable laws of the foreign city, state, and country where they take place.
US Citizenship and Immigration Services (USCIS) determine the validity of a marriage by the "place-of-celebration rule". This means that a marriage is valid for immigration purposes if it is valid under the law of the jurisdiction in which it is performed. USCIS does not recognise civil unions, domestic partnerships, or other such relationships not recognised as marriages in the place of celebration.
USCIS recognises common-law marriages for purposes of naturalization if the marriage was valid and recognized by the state in which it was established. This applies even if the naturalization application is filed in a jurisdiction that does not recognize common-law marriage. The officer reviewing the case will consider the laws of the relevant jurisdiction on common-law marriages to determine whether the applicant and spouse should be considered married for naturalization purposes.
When applying for a spousal visa or petitioning for a green card based on marriage, proving that a marriage is bona fide (genuine) is critical. Fraudulent marriages entered into solely for immigration benefits are strictly prohibited. It is important to consult with an immigration attorney to ensure that the proper steps are followed to avoid delays or complications in securing lawful residency for a foreign spouse.
To be recognized by US authorities, a marriage certificate must be properly translated into English and authenticated, sometimes called "legalization" or obtaining an "apostille". While each state may have its own requirements, generally, a marriage does not need to be re-registered in the US. Certain processes, such as filing taxes, changing names, or updating Social Security records, may require submitting proof of marriage.
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Frequently asked questions
Common-law marriages are recognised differently in different countries. While some countries may recognise your common-law marriage, others may not. Many countries in Europe, for example, do not recognise common-law marriages.
Common-law marriage, also known as non-ceremonial 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 marriages are recognised in the following US states: Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia. Outside of the US, common-law marriages are recognised in Israel and Kuwait to a limited extent.
If you have a common-law marriage and want to move abroad, you should contact the appropriate ambassador, consulate, diplomat, and/or attorney in the country you plan to move to, to determine whether your marriage will be recognised.
