Cecily Zamora
A common-law relationship is a marriage-like relationship between two people who are not married but are cohabiting. Common-law relationships are recognised differently across various jurisdictions. In Canada, common-law couples are not considered legally married, but they are granted certain rights and responsibilities akin to those of married couples. In the United States, common-law marriages are recognised in nine states and the District of Columbia, with specific requirements varying by state. In Australia, the term de facto relationship is often used to describe relationships between any two persons who are not married but are cohabiting. While there is no standard definition of a common-law couple, most laws consider two unmarried people who live together and represent themselves as a couple in public or have lived together for a certain period, typically one to three years, as a common-law relationship.
| Characteristics | Values |
|---|---|
| Legal recognition | Common-law marriages are not legally recognised as marriages in most places, but they may be recognised as a "domestic partnership", "registered partnership", "conjugal union", or "civil union". |
| Prerequisites | Common-law marriages do not require a marriage license or ceremony. |
| Couple's status | The couple must be of marriageable age, not already married, and legally capable of being married. |
| Cohabitation | The couple must live together for a "significant" period, typically at least one year, and sometimes up to three years. |
| Public representation | The couple must represent themselves as married in the community. |
| Children | In some definitions, the couple must have a child together (biological or adopted). |
| Contract | A contract can be used to agree on various aspects of their life as a couple, including the division of property and support payments in the event of separation. |
| Inheritance | Common-law partners may not automatically inherit their partner's property or assets in the event of their death, especially if there is no will. |
| Federal vs state/provincial recognition | Recognition of common-law marriages varies at the federal and state/provincial level. For example, in the US, nine states and the District of Columbia recognise common-law marriages, while in Canada, recognition varies by province. |
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What You'll Learn
Common-law marriage is not legally recognised
The term "common-law marriage" is often used to refer to cohabiting couples who are not legally married but present themselves as such. Despite its name, common-law marriage is not a legally recognised form of marriage in many places, including Australia, Canada, and the United Kingdom. In these places, common-law marriages are considered interpersonal relationships that are not legally recognised as marriages but may be recognised as parallel statuses such as domestic partnerships or civil unions. While these relationships may be afforded certain legal rights and responsibilities, they are not considered legally binding marriages.
In the United States, the recognition of common-law marriage varies by state. While some states, such as Colorado, Iowa, Kansas, and Montana, recognise common-law marriages, others do not. The specific requirements for a common-law marriage to be recognised also vary by state. For example, in Colorado, common-law spouses must be 18 or older and not prohibited by other laws, while in Kansas, couples must be mentally capable and represent themselves as married in the community.
The history of common-law marriage recognition in the United States is complex. In 1877, the U.S. Supreme Court ruled in Meister v. Moore that a non-ceremonial marriage could be lawful and enforceable if a state's law did not specifically prohibit it. However, individual states have since made their own decisions regarding recognition. For example, Alabama abolished common-law marriage in 2017 due to the legalisation of gay marriage, as the previous requirements for common-law marriage could now be met by same-sex couples simply living together and presenting themselves as married.
The lack of legal recognition for common-law marriage in many places can lead to confusion and misunderstandings regarding the legal rights of unmarried partners. It is important for couples in common-law relationships to understand the specific laws and protections (or lack thereof) that apply to their situation, as they may not have the same rights as legally married spouses.
While the term "common-law marriage" may be used colloquially to describe cohabiting couples, it is important to understand that this type of relationship is not legally recognised as a marriage in many jurisdictions. Instead, it refers to interpersonal relationships that may have certain legal rights and responsibilities but do not carry the same weight as a legally recognised marriage.
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Common-law marriage requirements vary by state
A common-law marriage is a marriage that takes legal effect without the need for a marriage license or a marriage ceremony. The marriage occurs when two people who are legally capable of being married and intend to be married live together as a married couple and present themselves as such to the world.
Common-law marriages are not recognized everywhere. In the United States, only a handful of states have common-law marriages, and a few others have limited common-law marriage recognition. Nine U.S. jurisdictions recognize common-law marriages, but the specific requirements vary by state. For example, in Colorado, common-law spouses must be 18 or older and not prohibited by other laws. In Iowa, common-law marriage is intended to support dependents but isn't otherwise banned. In Kansas, couples must be mentally capable of committing, be 18 or older, and represent themselves as married in the community. Montana does not prohibit common-law marriage, and it is not invalidated by the state's marriage chapter. New Hampshire recognizes common-law marriage for inheritance purposes only. Utah recognizes common-law marriages that have been validated in a judicial proceeding.
Even within states that recognize common-law marriage, there may be specific requirements for the marriage to be recognized. For example, in Colorado, common-law marriages are only recognized if they were contracted on or after September 1, 2006. Additionally, couples must be aware of the laws in their specific state, as the requirements for a common-law marriage to be recognized can vary.
It is important to note that the term "common-law marriage" is often used colloquially to refer to cohabiting couples, regardless of their legal rights or the actual status of their relationship. This can create confusion regarding the legal rights of unmarried partners.
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Common-law marriage and cohabitation
A common-law marriage is a marriage that takes legal effect without the need for a marriage license or ceremony. It occurs when two people who are legally capable of being married and intend to be married live together as a married couple and present themselves as such to the world. However, it is important to note that the term "common-law marriage" is often used incorrectly to describe cohabitation or other legally recognised relationships that are not legally considered marriages.
The requirements for a common-law marriage vary depending on the jurisdiction. In some US states, specific conditions must be met for a common-law marriage to be recognised. For example, in Colorado, common-law spouses must be 18 or older and not prohibited by other laws. In Iowa, it is intended to support dependents but isn't otherwise banned. In Canada, common-law marriages are not recognised, but informal cohabitation relationships may be acknowledged for certain purposes, creating legal rights and obligations. Similarly, in Australia, common-law marriage is not recognised, but de facto relationships are acknowledged in the Family Law Act.
To be considered a common-law couple in Quebec, living together is not always necessary. However, in other provinces, common-law relationships are typically recognised after a certain period of continuous cohabitation, usually between one and three years, or if the couple has a child together. For federal tax purposes in Canada, "living common-law" refers to couples who have lived together for 12 continuous months or share a child.
Common-law couples can use contracts to agree on various aspects of their lives and protect their assets in the event of separation. A will is also essential for common-law couples to ensure their partner inherits their property after their death. Without a will, a common-law partner may not inherit anything, as the law treats legally married couples differently.
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Common-law marriage and inheritance
A common-law marriage is a type of legal marriage that occurs without the formal requirements of a license, witnesses, and an officiated ceremony. It is a marriage that takes legal effect without the prerequisites of a marriage license or participation in a marriage ceremony. The marriage occurs when two people who are legally capable of being married, and who intend to be married, live together as a married couple and hold themselves out to the world as a married couple.
Common-law marriages are currently possible in only a few states, including Texas, Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Utah, and the District of Columbia. Each state has different requirements regarding what constitutes a common-law marriage within its jurisdiction. For example, in Texas, a couple must live together, hold themselves out to the public as married, and agree that they are married.
The recognition of common-law marriages can have significant implications for inheritance and estate planning. In states where common-law marriages are recognized, surviving spouses may have similar inheritance rights to those in traditional marriages. For example, in Texas, common-law spouses are treated similarly to legally married couples regarding inheritance rights. However, in states that do not recognize common-law marriages, surviving partners may face challenges and uncertainties in inheriting property or accessing other legal protections afforded to married couples.
To secure inheritance rights and protect their partners, common-law spouses are often advised to create wills or estate plans. By designating their partner as a beneficiary, individuals can ensure their partner's entitlement to a portion of their estate, commonly known as an "elective share." The number of years in the marriage or relationship can also impact the size of the elective share, with longer marriages typically resulting in a larger share.
Overall, while common-law marriages can provide legal protections and inheritance rights in some jurisdictions, the lack of uniform recognition across states and the potential absence of formal documentation can create complexities in estate planning and inheritance processes.
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Common-law marriage and taxes
A common-law marriage is an agreement to marry rather than a marriage. It is a marriage that takes legal effect without the prerequisites of a marriage license or participation in a marriage ceremony. Common-law marriages are recognised in some states in the US, as well as in Canada, where they are treated as legally binding as traditional marriages.
In the US, the Internal Revenue Service (IRS) treats common-law marriages on par with legally married couples. Common-law partners can save money by filing a joint return. However, both partners must file their own tax returns with the IRS, declaring their relationship status, the name of their common-law partner, their net income, and social insurance number. The IRS will then calculate the benefit amounts and tax credits the couple is eligible for, based on their combined household income.
In Canada, informal cohabitation relationships are recognised for certain purposes, including taxes and financial claims, and within those contexts are treated the same as married spouses.
In the UK, there is no definitive law surrounding common-law marriages in England and Wales, and a 2008 poll showed that 51% of respondents incorrectly believed that cohabitants had the same rights as married couples.
It is important to note that the requirements for a common-law marriage vary slightly from place to place, so it is always best to consult a financial advisor to understand the specific tax implications for your situation.
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Frequently asked questions
A common-law relationship is when two people make a life together without being married. To be considered a common-law couple in the eyes of the law, it is not always necessary to live together. However, there is no standard definition of a common-law couple, and it depends on the circumstances and which laws apply.
Common-law marriage is a marriage that takes legal effect without the prerequisites of a marriage license or ceremony. The marriage occurs when two people who are legally capable of being married, and who intend to be married, live together as a married couple.
Common-law couples can use a contract to agree on various aspects of their life together. The contract can also protect the family home and provide other types of protection if the partners separate, such as the division of property, a compensatory allowance, and support payments. However, without a will, a common-law partner does not inherit anything under the law.
Common-law marriages are recognized in nine states and the District of Columbia in the U.S., and each has specific requirements that must be met. In Canada, common-law status varies by province and legal context, and informal cohabitation relationships are recognized for certain purposes, creating legal rights and obligations. In Australia, the term used for relationships between any two persons who are not married but are living in certain domestic circumstances is a "de facto" relationship, which is recognized in the Family Law Act.
