Kara Sears
The legalization of same-sex marriage has been a long-fought battle for the LGBTQ+ community. In recent years, same-sex marriage has been legalized in many countries, including the United States, Canada, and the United Kingdom. With this legalization comes the question of whether gay couples can enter into a common-law marriage. Common-law marriage is a form of legal marriage that is recognized as equal to a traditional marriage, but without a marriage license or certificate. Instead, couples agree to mutually acknowledge themselves as married. While the specific requirements vary by state, generally, evidence of an exchange of words in the present tense expressing the desire to be married and proof of publicly holding themselves out as a married couple are required. Same-sex couples may be eligible for the same rights and benefits as heterosexual couples, including Social Security benefits, by proving a valid common-law marriage. This pathway to rights and benefits is especially important for same-sex couples who, due to the previous illegality of their relationships, may not have publicly held themselves out as married.
| Characteristics | Values |
|---|---|
| Number of countries where same-sex marriage is legal | 38 |
| Examples of countries where same-sex marriage is legal | Thailand, Taiwan, the United States, the United Kingdom, Australia, Canada, Germany, France, Spain, Sweden, Switzerland, Greece, Estonia, Slovenia, Austria, Argentina, Brazil, Colombia, Costa Rica, Mexico, South Africa, the Netherlands, etc. |
| Number of U.S. states that legally permit couples to establish new common-law marriages | 9, plus Washington, D.C. |
| Number of U.S. states that will recognize common-law marriages if established before the practice was abolished | More than a dozen |
| Requirements for common-law marriage | Mutual agreement to be married, cohabitation, sharing of joint bills, joint finances and accounts, jointly titled property and debts, shared children, exchanging of rings or vows, holding of a ceremony, announcing to others that the couple is married |
| Benefits of common-law marriage | Equitable distribution of marital property in a divorce action, amending a death certificate of a deceased partner to include the marital status as "married" and adding the surviving spouse's name, intestate succession (inheritance without a will) from a deceased partner, social security benefits |
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What You'll Learn
Common law marriage requirements
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 legally binding and are considered equal to ceremonial marriages.
In the United States, common-law marriage has existed since colonial times, and while most states have abolished it, it is still recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia.
The requirements for a common-law marriage include:
- Both partners must have the legal right or "capacity" to marry. This typically means they must be at least 18 years old, of sound mind, and not already married.
- Both partners must intend to be married and hold themselves out to friends, family, and the public as a married couple.
- The couple must live together or "cohabitate". There is no statutory requirement for the length of time a couple needs to live together, but generally, the longer they live together, the stronger their case is for a common-law marriage.
In Colorado, the Supreme Court has declared that the mutual understanding to be married can take many forms and does not require a written or verbal agreement. Some factors the court may consider include shared finances, property, debts, children, exchanging of rings or vows, holding a ceremony, and announcing their marriage to others.
It's important to note that the requirements and recognition of common-law marriage can vary from state to state, and individuals seeking to be recognized as common-law spouses should consult an attorney familiar with the laws in their jurisdiction.
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Social security benefits
The Social Security Administration (SSA) recognizes the marriages of same-sex couples in all states and also recognizes some non-marital legal relationships. For example, they recognize common-law marriage if the state in question accepts common-law marriage. Common-law marriage occurs when a couple holds themselves out as married, but they are not legally married. They also recognize some civil unions and domestic partnerships.
The SSA will only acknowledge common-law marriages that were established in states that permit them. You may not establish a common-law marriage when you live in a state that doesn't recognize these marriages. However, if you move to another state after you've already established a common law marriage in a state that allows them, the state where you're living now must recognize your marriage. This means that you may get Social Security survivors or spouses' benefits in any state, as long as your common-law marriage was created in a state that permitted it.
In order to be eligible for benefits based on your common-law spouse's earnings, you'll need to provide the SSA with evidence to prove that you were in a valid common-law marriage. Statements from each spouse affirming the marriage, as well as statements regarding the marriage from a blood relative of each spouse, are required if both spouses are alive. If your spouse has died, you will need your own statement affirming the marriage, along with statements from two blood relatives of your deceased spouse. In some circumstances, you might be able to substitute other evidence for some of these statements.
In 2021, a policy change offered retroactive Social Security survivors benefits to some same-sex couples who lost their partners before the establishment of marriage equality. To be eligible, you must have filed an application for Social Security survivors benefits prior to November 25, 2020, and been denied only due to laws prohibiting same-sex marriage. The SSA has agreed to review claims filed after that date for individuals who would have been eligible for benefits if not for discriminatory laws in place.
In most circumstances, a surviving spouse can claim benefits on a late partner’s earnings record by being at least 60 years old and legally married to the deceased for at least nine months at the time of death. Same-sex partners whose relationships predated Obergefell may qualify for survivor benefits if they meet either of these criteria: The couple would have been married at the time of the partner’s death if state laws hadn't prevented them from marrying sooner.
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Common law marriage recognition
Common-law marriage is a form of legal marriage that is of equal standing in the eyes of the law as a more 'traditional' legal marriage. In a common-law marriage, the spouses never get a marriage license or certificate. Instead, spouses agree to mutually acknowledge and hold themselves out as being a married couple.
In the United States, same-sex couples have a constitutional right to "civil marriage on the same terms and conditions as opposite-sex couples". This means that same-sex couples are entitled to have their valid common-law marriages recognized.
As of 2022, only nine states (plus Washington, D.C.) legally permit couples to establish new common-law marriages. However, more than a dozen other states will recognize common-law marriages if they were established before the practice was abolished in that state.
To determine whether a common-law marriage exists, a court may evaluate evidence presented by the party or parties seeking to have the common-law marriage recognized. While the precise 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 that the couple wished to establish a marriage with each other and other evidence that the couple held themselves out or acted as a married couple publicly.
In Colorado, the Supreme Court has declared that a mutual understanding of being married can take many forms and does not necessarily require a written or verbal agreement. Instead, the court often looks at the totality of the circumstances to find whether there was an intent to engage in a common-law marriage, including analyzing whether the parties have shared joint bills and expenses, joint finances and accounts, jointly titled property and debts, shared children, exchanging of rings or vows, holding of a ceremony, and announcing to others that one is a married couple.
Same-sex common-law marriage is also recognized outside of the United States. Since the first same-sex marriages were legally recognized in the Netherlands in 2001, more than 30 other jurisdictions – mostly in Europe and the Americas – have enacted laws allowing gay and lesbian couples to marry. As of 2025, there are 38 countries where same-sex marriage is legal.
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Marriage equality worldwide
Marriage equality, or the legal recognition of same-sex marriage, has been a recent development in many countries. As of 2025, same-sex marriage is legally recognised in 38 countries, with a total population of 1.5 billion people, which equates to 20% of the world's population.
The first same-sex marriages were legally recognised in the Netherlands in 2001, and since then, nearly 40 other jurisdictions, mostly in Europe and the Americas, have followed suit. In the US, the Supreme Court case of Obergefell v. Hodges in 2015 established that same-sex couples have a constitutional right to "civil marriage on the same terms and conditions as opposite-sex couples". This includes common-law marriages, which are marriages without a marriage license or ceremony, instead relying on mutual acknowledgement and holding themselves out as a married couple. While many states no longer recognise common-law marriages, same-sex couples can still claim rights and benefits through this pathway.
In 2024, marriage equality was passed in Liechtenstein, Thailand, and Greece, with the latter becoming the first Christian Orthodox majority country to do so. Estonia became the first post-Soviet Union country to legalise same-sex marriage in 2023, and other countries that legalised marriage equality in 2022 include Andorra, Cuba, Chile, and Switzerland. Taiwan was the first country in Asia to enact marriage equality, with other Asian countries such as Japan still yet to recognise same-sex marriage.
While marriage equality has been gaining traction worldwide, it is important to note that some countries, such as Nigeria and Russia, restrict advocacy for same-sex marriage, and many countries still constitutionally define marriage to prevent same-sex couples from marrying.
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Same-sex marriage history
Same-sex marriage, also known as gay marriage, is the marriage of two people of the same legal sex. As of 2025, same-sex marriage is legally recognised in 38 countries, with a total population of 1.5 billion people (20% of the world's population).
The history of same-sex marriage is long and complex. While few societies have recognised same-sex unions as marriages, the historical and anthropological record reveals a large range of attitudes towards same-sex unions, ranging from praise, through full acceptance and integration, to persecution and physical annihilation. Cultures that openly accepted homosexuality, of which there were many, generally had non-marital categories of partnership through which such bonds could be expressed and socially regulated. Conversely, other cultures denied the existence of same-sex intimacy or deemed it an unseemly topic for discussion.
In the 4th century, as the Roman Empire became Christianised, legal prohibitions against marriage between males began to appear. However, same-sex marriages, in all possible configurations and with all possible motivations, have taken place throughout the history of the United States. Scholar Rachel Hope Cleves reports that "the available sources reveal same-sex marriage as a culturally legible practice that took place over centuries of American history". Cleves discusses same-sex marriage in America from the 16th century to the 1970s, noting that these were not the long-term relationships we might now think of as marriages, but "marriages labelled so in their own times and places".
Michael McConnell and Jack Baker are the first same-sex couple in modern recorded history known to obtain a marriage license and have their marriage legally recognised by any form of government. This occurred on September 3, 1971, in Minnesota. Historians trace the beginning of the modern movement in support of same-sex marriage to around the 1980s to the 1990s. By the early 21st century, several jurisdictions had legalised same-sex marriage, while other jurisdictions adopted constitutional measures to prevent same-sex marriages from being sanctioned.
In terms of common-law marriage, this is a form of legal marriage that is of equal standing in the eyes of the law as a traditional legal marriage. In a common-law marriage, the spouses never get a marriage license or certificate but mutually acknowledge and hold themselves out as being a married couple. Common-law marriages can be recognised in states that do not typically allow them if they were established in a state that does recognise them. As of 2022, only nine states (plus Washington, D.C.) legally permitted couples to establish new common-law marriages, but more than a dozen other states will recognise common-law marriages if they were established before the practice was abolished in that state.
In the context of same-sex marriage, the U.S. Supreme Court decision in Obergefell v. Hodges held that same-sex couples have a constitutional right to "civil marriage on the same terms and conditions as opposite-sex couples". This means that state courts have the power to declare same-sex relationships to be common-law marriages if they would accord the same status to a heterosexual union.
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Frequently asked questions
A common-law marriage 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. It is a valid and legal way for a couple to marry without a ceremony or formalities.
As of 2022, only nine states (plus Washington, D.C.) legally permit couples to establish new common-law marriages. However, many other states will recognise common-law marriages if they were established before the practice was abolished in that state.
Yes, same-sex couples can enter into a common-law marriage. Under the U.S. Supreme Court decision in Obergefell v. Hodges, the United States Constitution requires that same-sex couples be permitted to marry on the same terms as different-sex couples. This includes both ceremonial and common-law marriages.
Common-law marriages are marriages for all purposes, so they come with the same rights, benefits and responsibilities as a legal marriage. This includes equitable distribution of marital property in a divorce action, amending a death certificate, and intestate succession (inheritance without a Will). Same-sex couples in a common-law marriage may also be eligible for Social Security benefits based on their spouse's earnings record.
The requirements for a common-law marriage vary from state to state. In general, evidence must be presented to the court regarding the exchange of words in the present tense expressing the wish to be married, and other evidence that the couple held themselves out as married publicly. Some states may also require proof of cohabitation, but this is not always essential.
