Kara Sears
Common-law marriage, also known as marriage without formalities or informal marriage, is a valid way for a couple to marry in a few US states and the District of Columbia. Common-law marriage does not require a civil or religious ceremony and instead recognises two people who cohabitate and consent to live as spouses. While it is not recognised in all 50 states, some states that do include Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, and Utah. To be considered a common-law marriage, both parties must be at least 18 years old, present themselves as a married couple to others, and have the legal capacity to marry.
| Characteristics | Values |
|---|---|
| Number of states recognizing common-law marriage | 11 (Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia) |
| Requirements for common-law marriage | Both partners must intend to be married, behave as a married couple, and have the legal capacity to marry (usually over the age of 18) |
| Divorce | There is no such thing as "common-law divorce". Divorce must be done by statutory law in all jurisdictions |
| Same-sex marriage | Recognized in Texas and supported by case law and federal statutes |
| Inheritance | New Hampshire recognizes common-law marriage for inheritance purposes only |
| Proving common-law marriage | Documents such as lease agreements, tax returns, and insurance policies may be requested. If there is a dispute, a court proceeding may be necessary |
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What You'll Learn
What is common-law marriage?
Common-law marriage, also known as marriage without formalities or informal marriage, is a valid way for a couple to marry without a formal wedding ceremony. It is only recognised in a few US states, including Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, and Utah, as well as the District of Columbia.
The requirements to contract a valid common-law marriage differ between jurisdictions. In Texas, for example, a couple can file a legal "Declaration of Informal Marriage", which is a legally binding document. The form must be completed by both marriage partners and sworn or affirmed in the presence of the County Clerk. Alternatively, a couple can meet a three-prong test, showing evidence of an agreement to be married, cohabitation, and representation to others that they are married. While there is no specification on the length of time a couple must cohabit, Texas law places a two-year statute of limitations on court proceedings to prove the existence of a common-law marriage.
In New Hampshire, common-law marriages are rarely recognised and are typically only acknowledged when determining inheritance after one party passes away. Similarly, in Utah, a court or administrative order must validate the relationship for it to be recognised as a common-law marriage.
To be considered a common-law marriage, both partners must generally be at least 18 years old and present themselves as a married couple to others. While there is no statutory requirement for the length of time a couple needs to live together, the longer a couple lives together, the stronger their case is for a common-law marriage.
It is important to note that, despite its colloquial use, most states do not legally recognise common-law marriages.
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Where is it recognised?
Common law marriage is recognised in very few US states. These include Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Texas, and the District of Columbia. The status of common law marriage in Utah is unclear. While government websites claim that common law marriage does not exist in Utah, other legal websites state that "non-matrimonial relationships" may be recognised as marriage within one year after the relationship ends.
In states that allow common-law marriage, couples may have the same rights as a married couple who went through a formal marriage process. To be recognised as a common-law marriage, couples must cohabit for a period of time, and hold themselves out to friends, family, and the community as "married". However, cohabitation as an unmarried couple is not enough to establish a common-law marriage. The length of time a couple must live together is not specified and is considered by the court on a case-by-case basis.
In Texas, a couple can file a legal "Declaration of Informal Marriage", which is a legally binding document. The form must be completed by both marriage partners and sworn or affirmed in the presence of the County Clerk. Alternatively, a couple can meet a three-prong test, showing evidence of an agreement to be married, cohabitation, and representation to others as a married couple.
In New Hampshire, common-law marriages are rarely recognised and are typically only acknowledged when determining inheritance after one party passes away.
While most states do not contract common-law marriages, they will typically recognise these unions if they are contracted by a different state. For example, California does not include common-law marriage in its laws but would recognise a common-law marriage obtained in a state that does recognise it.
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How do you prove it?
Common-law marriage is an informal type of marriage that does not require a marriage license or certificate. It is only recognised in a few US states, including Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, Utah, and the District of Columbia. The specific requirements vary depending on the state, so it is important to understand the laws in your state.
To prove a common-law marriage, you must show evidence that you and your partner mutually agreed to be spouses. This can be done through various documents, including:
- Affidavits: A written statement made under oath, such as a personal affidavit declaring your mutual agreement to be spouses or affidavits from friends and family who can attest to your relationship.
- Property deeds: Documents showing joint ownership of property.
- Bank statements: Evidence of joint bank accounts.
- Loan documents, leases, mortgages, and promissory notes: Documents indicating joint financial obligations.
- Credit card statements: Accounts in both spouses' names.
- Church records: Documents such as membership information or children's baptismal certificates.
In addition to providing documentary evidence, there are other factors that may be considered when determining the validity of a common-law marriage:
- Cohabitation: Living together for a period of time, although there is no statutory requirement for the duration.
- Intention: Both partners must have intended to be married and presented themselves as a married couple to friends, family, and the public.
- Legal capacity: Both partners must have the legal right to marry, including being of legal age (usually 18 years or older) and sound mind, and not currently married to other people.
It is important to note that the requirements and recognition of common-law marriage can vary by state, and same-sex couples may face additional challenges in providing evidence due to historical discrimination and legal restrictions.
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What are the rights of those in a common-law marriage?
The rights of those in a common-law marriage vary depending on the jurisdiction. In some places, common-law marriages are not legally recognised, and thus those in such a marriage do not have any additional rights. However, in some jurisdictions, common-law marriages are recognised, and those in such a marriage may have similar rights to those of a formally married couple.
In the US, common-law marriages are only recognised in a few states, including Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, Utah, and the District of Columbia. In these states, couples in a common-law marriage may have the same rights as a married couple who went through a formal marriage process. For example, in Texas, common-law marriages are considered valid and legal, and those in such a marriage may have the same rights as a married couple regarding divorce, custody, child support, and adoption. However, it is important to note that the specific rights and benefits may vary depending on the state and individual circumstances.
In Canada, while common-law marriages are not legally recognised, informal cohabitation relationships are acknowledged for certain purposes, creating some legal rights and obligations. In this case, couples may be defined as "unmarried spouses" and treated similarly to married spouses for specific contexts such as taxes and financial claims.
The English-speaking Caribbean islands also have statutes concerning common-law marriage due to their colonial past. However, the term "common-law marriage" is often used to describe any long-term relationship between male and female partners, and the specific legal rights associated with these arrangements may vary.
It is important to note that the recognition of common-law marriages and the associated rights can vary significantly across different jurisdictions. Therefore, it is always advisable to consult with a legal professional or refer to local laws and regulations to understand the specific rights and protections afforded to those in a common-law marriage in a particular region.
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How do you end a common-law marriage?
Common-law marriage is not recognised in all 50 states of the US. Only a few states allow common-law marriages, including Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, Utah and the District of Columbia. However, there are nuances to the laws in some of these states. For example, in Oklahoma, there are conflicting laws, and in New Hampshire, common-law marriages are only recognised for inheritance purposes.
To end a common-law marriage, the first step is to determine whether your common-law marriage was valid. The requirements vary from state to state, but generally, you'll have to prove to the court that both partners intended to be married. This can be demonstrated through evidence of conduct, such as presenting yourselves as a married couple to friends, family and the public, or a written agreement signed by both parties expressing the mutual intent to be married. Some states may also require couples to register their common-law marriage.
If your common-law marriage is deemed valid by the court, you will need to follow the steps to obtain a traditional divorce before you can remarry. This involves filing a formal petition with the court where you live, and understanding your state's residency and other divorce requirements. All states allow spouses to use a no-fault divorce process, which is generally faster, less expensive and less stressful than a contested, fault-based divorce. It is important to note that neither partner is free to remarry until the court signs the judgment of divorce.
In Texas, if court proceedings are not filed within two years of the separation, Texas law presumes a common-law marriage never existed unless proven otherwise. Therefore, it is essential to consult with an attorney or a family law practice guide to understand your options and rights when ending a common-law marriage.
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Frequently asked questions
Common-law marriage, also known as marriage without formalities or informal marriage, is a valid way for a couple to marry without a formal wedding ceremony. It is only recognised in a few US states, including Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, and Utah.
Both parties must be at least 18 years old and have the legal capacity to marry. They must also live together and present themselves as a married couple to others. In some states, couples can file a legal "Declaration of Informal Marriage", which is a legally binding document.
In states that allow common-law marriage, couples may have the same rights as a formally married couple. This includes rights to inheritance and benefits.
Ending a common-law marriage is similar to ending a formal marriage. If a common-law couple decides to split up, they must file for divorce. However, there is no such thing as "common-law divorce", so divorce must be done by statutory law in all jurisdictions.
