Cameron Miranda
The concept of common-law marriage is often used to refer to unmarried, cohabiting couples. However, the original meaning of the term refers to a marriage that is considered valid by both partners, without being formally recorded or celebrated in a civil or religious ceremony. In other words, a couple that represents themselves to others as married and organises their relationship as such, is considered married. While many jurisdictions no longer recognise common-law marriages, there are exceptions. For instance, in the US, common-law marriages are still recognised in several states, including Colorado, Iowa, Kansas, and Montana, while others have limited recognition. Similarly, in Scotland, a form of irregular marriage called 'marriage by cohabitation with habit and repute' was recognised until 2006.
| Characteristics | Values |
|---|---|
| Legal recognition | Common-law marriages are legally recognised in some states and jurisdictions, such as Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. However, many states no longer recognise common-law marriages. |
| Requirements | The requirements for a common-law marriage vary by jurisdiction but generally include the intention to be married, both partners being legally capable of marrying, and holding themselves out as a married couple to the world. |
| Proof | Proving a common-law marriage can be difficult and may require providing certain legal documents or going to court. |
| Rights and benefits | Common-law marriages may confer similar rights and benefits as formal marriages, including leave rights, job protections, and tax benefits. However, the specific rights gained depend on the laws of the relevant state or jurisdiction. |
| Termination | Ending a common-law marriage is similar to ending a formal marriage; the couple must file for divorce or seek a court ruling if the marriage is disputed. |
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What You'll Learn
Common-law marriage in the US
The concept of common-law marriage in the US is rooted in the country's colonial past, when the scarcity of clerics and civil officials necessitated alternatives to ceremonial marriages. Despite its decline in Western nation states over the centuries, common-law marriage still holds legal recognition in certain US states.
As of 2022, common-law marriages are recognised in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire have limited recognition, such as for inheritance purposes. In contrast, states like Alabama and Georgia no longer recognise common-law marriages except those established before specific dates (2017 and 1997, respectively).
A common-law marriage is a legally recognised union without the need for a marriage ceremony or certification. To establish a common-law marriage, both parties must be legally capable of marrying, intend to be married, and hold themselves out as a married couple to their community. This can include referring to each other as "spouse" or "partner" in public, adopting the same last name, or being recognised as a married couple by their friends and neighbours.
The recognition of common-law marriages can vary between jurisdictions, and they may be referred to as "domestic partnerships", "conjugal unions", or "civil unions". In the US, a common-law marriage that meets state requirements is legally binding, and can only be dissolved through divorce or the death of a partner. If a partner dies before the common-law marriage is established, proof of the marriage may be required.
The United States Department of Labor's amended definition of "spouse" under the Family and Medical Leave Act of 1993 extends leave rights and job protections to eligible employees in same-sex marriages or common-law marriages in states where these are legally recognised. This recognition extends across state lines, similar to how a driver's license is valid in multiple states.
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Common-law marriage in the UK
In the UK, common-law marriage does not exist. While there are certain rights afforded to cohabiting couples, they are not covered under the same rights as married couples when it comes to separation or death. For example, in England and Wales, if a cohabiting couple separates, the distribution of assets will be decided by property law, and the courts have no discretion to reallocate assets, as occurs during a divorce.
The term "common-law marriage" has been used in England and Wales to refer to unmarried, cohabiting heterosexual couples. However, this is merely a social usage, and it does not confer on cohabiting parties any of the rights or obligations enjoyed by spouses or civil partners. While unmarried partners are recognised for certain purposes in legislation, such as means-tested benefits, they do not have the same legal rights as married couples.
In Scotland, there was a form of irregular marriage called 'marriage by cohabitation with habit and repute' which could apply to couples in special circumstances until 2006, when it was abolished by the Family Law (Scotland) Act 2006. This type of marriage required the couple to have lived together continuously for more than 20 days and to have been generally regarded as husband and wife by their community.
The original concept of a "common-law" marriage is one that is considered valid by both partners but is not formally recorded with a state or religious registry or celebrated in a formal civil or religious service. Instead, the couple represents themselves to others as being married and organises their relationship as if they were married. This type of marriage is often referred to colloquially or by the media, creating confusion regarding the legal rights of unmarried partners.
There have been proposals to introduce a form of common-law marriage or 'de facto' relationship status in the UK to provide greater legal protection for the financially weaker party in a relationship. However, there has been resistance to such reforms based on concerns about undermining marriage, imposing unwanted rights on couples, and creating legal complexity.
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Common-law marriage in Scotland
In Scotland, common-law marriage does not exist. However, until 2006, there was a form of irregular marriage called 'marriage by cohabitation with habit and repute'. This was abolished by the Family Law (Scotland) Act 2006, which came into force on 4 May 2006. Any irregular marriages established before this date are still recognised.
The term 'common-law marriage' is often used to describe cohabitation, where a couple lives together but is not married or in a civil partnership. This term has no legal standing in Scotland, but cohabitants do have some legal rights. For example, cohabitants can make an application 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 than for married couples.
To qualify as a 'marriage by cohabitation with habit and repute', a couple had to be free to marry each other and be believed to be married by friends, relatives, and the public. This form of marriage was rarely used in practice and was challenging to prove. It required more than simply living together for several years; the couple had to be generally regarded as husband and wife. For example, their friends and neighbours must have known them as Mr. and Mrs.
The original concept of a 'common-law marriage' is a marriage that is considered valid by both partners but is not formally recorded with a state or religious registry or celebrated in a formal civil or religious service. In this type of marriage, the couple represents themselves to others as being married and organises their relationship as if they were married. However, this type of marriage is not legally recognised in Scotland, and a legitimate marriage ceremony must take place for a marriage to be considered valid.
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Common-law marriage in ancient civilisations
The concept of marriage has existed for as long as humans have gathered together for support and love. In the beginning, all marriages were essentially common-law marriages. Couples were simply declared to be married by their families or themselves, lived together, formed alliances, joined resources, tended to the home, and raised children. Most of these first unions were agreements between two families, rather than two individuals.
Over time, marriage rituals became more complicated, with the increasing recognition of women's rights, the need to protect and provide for children, concerns over inheritances, estates, and property division, and new oversight by churches and local governments. Marriage rites were closely linked to the turning of the seasons, yearly harvests, and fertility celebrations, and offerings to gods and spirits. One such ancient ritual was handfasting, which involved the binding of the couple's hands with colourful symbolic ribbons.
In Ancient Rome, weddings for lower-class, non-patrician Romans involved a meal, after which the bride and groom would put on a performance in which the groom "kidnapped" his wife to protect her from evil spirits for leaving her family. Friends and family would then accompany them, singing wedding songs on the way home, after which the groom would smear animal fats on the threshold to ward off evil spirits, before carrying his bride over the threshold and to a new couch to consummate the marriage.
By the Middle Ages, written marriage contracts had become a regular part of the marriage process in Europe. Common-law marriages were frequent during this time, but their legality was abolished in Roman Catholic countries by the Council of Trent (1545-1563), which required that marriages be celebrated in the presence of a priest and two witnesses. In England, common-law marriages were valid until Lord Hardwicke's Act of 1753, after which couples went north to Scotland to marry and avoid the ban.
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Common-law marriage in Aboriginal nations
Marriage in Aboriginal nations is governed by a complex system of customary laws, which vary across different communities. These laws determine how people relate to each other and their social, ceremonial, and land-related roles, rights, responsibilities, and obligations.
Aboriginal kinship systems are integral to their culture and are based on the concept of reciprocity. Marriage is not just a relationship between two individuals but a link between two families or groups of kin with mutual obligations and responsibilities. Infant betrothal is common, and marriages are often arranged by exchanging sisters and brothers from different moieties, clans, or families. Marriage is typically recognised when a couple lives together publicly, assumes certain responsibilities towards each other, and towards their respective families. While a child's birth may further solidify the union, it is not always necessary.
In some Aboriginal societies, parents of marriageable girls may play one man against another, and there may be a significant age gap between the affianced pair. Long-standing betrothals are often cemented by gift-giving and the rendering of services, fostering a genuine attachment between the couple. Marriage is expected of everyone, and a girl's marriage is usually settled before she reaches puberty. Ideally, a husband should be older than his wife, although older widows may marry younger men.
Aboriginal kinship systems are divided into "skins", named categories related to each other through prescribed ways within the kinship system. These "skins" serve as personal identifiers, similar to a first name, and are passed down from parents to their children. While ideally based on blood relations, these subsection systems are classificatory, meaning even non-blood relations are assigned a subsection. They are also universal, with every member of society assigned a position.
In terms of divorce, a woman may elope to end a marriage, while a man may bestow an unsatisfactory wife on someone else or divorce her with a formal declaration or symbolic gesture. Historically, Aboriginal people in Australia faced legal restrictions on their freedom to marry outside their race, with cases such as Gladys Namagu being denied permission to marry her white fiancé, Mick Daly.
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Frequently asked questions
A common-law marriage is a marriage that is legally recognized 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 and present themselves as a married couple to the outside world.
Common-law marriage is recognized in certain US states, including Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Some states have limited recognition, while others, like Alabama and Georgia, only recognize common-law marriages before a certain date. Outside of the US, common-law marriage was recognized in Scotland until 2006 and still exists in some form in Aboriginal nations.
The requirements for a common-law marriage vary by jurisdiction. Generally, both partners must be at least 18 years old, unmarried, and of sound mind. They must also behave as a married couple and hold themselves out to friends, family, and the public as a married couple.
Proving a common-law marriage can depend on the jurisdiction. In some cases, you may need to provide legal documents or go to court to prove the marriage. Certain behaviors, such as referring to each other as "spouse" or sharing a last name, can also help demonstrate a common-law marriage.
