Anaya Nolan
The concept of common-law marriage is steeped in a rich history, with its origins shrouded in uncertainty. It is believed to be the original form of marriage, devoid of the formalities associated with traditional weddings. Common-law marriage is a legal recognition of a couple's union without the need for a marriage license or ceremony. This type of marriage occurs when two people capable of marrying live together, intending to be married, and present themselves as a married couple to the world. While it is not widely recognised, some states in the US, such as Colorado, Iowa, and Texas, still uphold common-law marriages, each with varying guidelines. The term has evolved over time, often used colloquially to describe cohabiting couples, creating confusion about the legal rights of unmarried partners. Understanding the intricacies of common-law marriage is essential, as it varies significantly across different states and jurisdictions.
| Characteristics | Values |
|---|---|
| Original concept | A marriage considered valid by both partners, but not formally recorded with a state or religious registry, nor celebrated in a formal civil or religious service |
| Common usage | Colloquially used to denote cohabiting couples, regardless of any legal rights or religious implications involved |
| Legal recognition | Only recognised in a few states, including Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, Utah, and the District of Columbia |
| Requirements | Cohabitation, mutual agreement to be married, and holding themselves out to be married |
| Legal documents | Depending on the jurisdiction, certain legal documents may be required to prove a common-law marriage |
| Capacity | Both parties must be legally capable of being married and have the capacity to marry |
| Consummation | In some jurisdictions, consummation is required, while in others, cohabitation is considered in lieu of consummation |
| Inheritance | In some states, common-law marriage is only recognised when determining inheritance after one party's death |
| Same-sex marriage | Same-sex couples can be common-law married, as states cannot ban same-sex marriages |
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What You'll Learn
Common-law marriage recognition in the US
In the United States, 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 incorrectly to describe cohabitation or other legally formalized relations.
A common-law marriage is a legal and informal marriage where couples do not have a marriage license, marriage ceremony, or marriage certificate. In states that allow common-law marriage, couples in a common-law marriage may have the same rights as a married couple who went through a formal marriage process. Generally, a married couple is considered common-law married when they live together for a period of time (cohabitation) and hold themselves out to friends, family, and the community as "married".
The following U.S. states recognize common-law marriage (fully or with limitations):
- Alabama (if created before January 1, 2017)
- Colorado
- Florida (if created before January 1, 1968)
- Georgia (if created before January 1, 1997)
- Idaho (if created before January 1, 1996)
- Indiana (if created before January 1, 1958)
- Iowa
- Kansas
- Montana
- New Hampshire
- Ohio (if created before October 10, 1991)
- Oklahoma
- Pennsylvania (if created before January 1, 2005)
- Rhode Island
- South Carolina
- Texas
- Utah
- Washington, D.C.
Additionally, there are states that previously allowed common-law marriages but no longer do so unless the marriage began before a certain date or for a specific purpose.
The full faith and credit clause in the United States Constitution prevents states from blocking other states with contradictory laws. This means that a state that does not have common-law marriage must recognize common-law marriages from other states. For example, if a couple is common-law married in Colorado (a common-law marriage state) and moves to California (which does not have common-law marriage), their marriage is still recognized.
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Common-law marriage in England and Wales
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that occurs when two people who are capable of being married and intend to be married live together and hold themselves out to the world as a married couple. This type of marriage does not involve a formal wedding ceremony, marriage license, or marriage certificate.
In England and Wales, common-law marriage is not recognised. The term "common-law marriage" is sometimes used to refer to unmarried, cohabiting heterosexual couples. However, this usage does not confer any of the legal rights, protections, or responsibilities of a formal marriage. Cohabiting couples in England and Wales are treated as separate individuals and are not given special legal status. This means that, upon separation or the death of one partner, the surviving partner is not automatically entitled to any assets or financial support. The only areas where the law covers cohabitation are child arrangements and domestic abuse.
Historically, common-law marriage did exist in England and Wales. In medieval times, a couple could be considered married simply by saying they took each other as husband and wife. The wider community and church recognised this as an official marriage. However, under the influence of the Catholic Church, a requirement was set for marriages to take place in front of a priest. England abolished clandestine or common-law marriages in the Marriage Act of 1753, which required marriages to be performed by a priest of the Church of England unless the participants were Jews or Quakers.
While common-law marriage is not recognised in England and Wales, there are certain rights afforded to cohabiting couples. For example, unmarried couples may be recognised for means-tested benefits, as defined in the Jobseekers Act 1995. Additionally, parental responsibility for a child can be conferred on both parents by naming the father on the birth certificate in England and Wales.
It is important to note that the use of the term "common-law marriage" can create confusion regarding the legal rights of unmarried partners. In jurisdictions that recognise common-law marriage, such as some US states, couples in a common-law marriage may have the same rights as formally married couples. However, this is not the case in England and Wales, where cohabiting couples do not have the same legal status as married couples.
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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 form of marriage was abolished by the Family Law (Scotland) Act 2006, but irregular marriages established before 4 May 2006 are still recognised.
The term "common-law marriage" is often used to describe cohabiting couples, regardless of their legal rights or religious implications. This can be misleading, as cohabitation as an unmarried couple does not establish a common-law marriage. In the context of family law, a common-law marriage is a legal and informal marriage that does not involve a formal wedding ceremony, marriage license, or marriage certificate.
To qualify as a common-law marriage, a couple must meet certain requirements, such as cohabitation and a mutual agreement to be married. They must also hold themselves out to friends, family, and the community as "married". In some states, common-law marriages are recognised and provide the same rights as a formal marriage. However, the recognition of common-law marriages varies across jurisdictions, and many states no longer recognise them.
In Scotland, the law recognises the legal rights of cohabitants, and the Family Law (Scotland) Act 2006 provides guidelines for the court to determine cohabitation. Cohabitants may require legal advice to understand their rights and options, especially regarding financial matters and responsibilities for children.
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Common-law marriage misconceptions
The term "common-law marriage" is often used incorrectly to describe various types of couple relationships, such as cohabitation (whether or not registered) or other legally formalized relations. Although these interpersonal relationships are often called "common-law marriages", they differ from its original meaning in that they are not legally recognized as "marriages". Here are some common misconceptions about common-law marriage:
Common-law marriage after seven years of cohabitation
A pervasive myth about common-law marriage is that it automatically takes effect after a couple has cohabited for seven years. This is not true; there is no specific time requirement for common-law marriage. The requirement is that the couple must live together continuously, and not just occasionally or on weekends.
Common-law marriage is recognized everywhere
Common-law marriage is not recognized in all states or countries. In the United States, only a small number of states recognize common-law marriage, and the requirements vary by state. In Canada, while some provinces may grant couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married. In England, Wales, Northern Ireland, and Scotland, common-law marriage is not recognized.
Common-law marriage provides the same legal rights as a regular marriage
While in some states or jurisdictions, a common-law marriage may provide the same legal rights as a regular marriage, this is not always the case. The legal rights of a common-law marriage can vary depending on the specific laws and regulations of the state or country in which it is recognized. Additionally, it can be challenging to prove the existence of a common-law marriage, especially if the couple has not documented their agreement to be married or held themselves out to the public as a married couple.
Common-law marriage applies to all types of relationships
Common-law marriage may not apply to all types of relationships, and the requirements for a valid common-law marriage may vary depending on the jurisdiction. For example, in some states, same-sex couples may be able to enter into a common-law marriage, while in others, the law may be unclear or subject to interpretation. Additionally, if one person in the couple is already married or in the process of divorcing, this may impact the validity of a common-law marriage.
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Rights of common-law spouses
The rights of common-law spouses vary depending on the jurisdiction. In some places, common-law marriages are not legally recognised and, therefore, do not confer any rights or obligations on the couple. However, in jurisdictions that do recognise common-law marriages, the spouses have similar rights to traditionally married couples.
In the United States, common-law marriages are recognised in some states but not others. All US jurisdictions recognise common-law marriages that were validly contracted in other states. However, it can be difficult to prove a common-law marriage, as there is often no legal registration or similar notice of the marriage. To demonstrate a common-law marriage, couples may need to show that they presented themselves to family, friends, and the community as a married couple, using words like "husband," "wife," or "spouse" when referring to each other. In some states, couples can register their common-law marriage by filing a declaration. Once a couple's common-law marriage is recognised, they have similar rights to traditionally married couples, including inheritance rights and other estate planning benefits. For example, in New Hampshire, a common-law marriage is only recognised for inheriting property from a deceased partner.
In Canada, couples in marriage-like relationships may be granted many of the rights and responsibilities of a marriage, but they are not legally considered married. They may be defined as "unmarried spouses" and treated the same as married spouses for certain purposes, such as taxes and financial claims.
In England and Wales, the term "common-law marriage" is used to refer to unmarried, cohabiting heterosexual couples, but this is merely a social usage that does not confer any legal rights or obligations. Unmarried partners are recognised for certain purposes in legislation, such as means-tested benefits, but they do not have the same rights as married couples or civil partners.
Similarly, in Northern Ireland, there is little legal grounding for the concept of common-law marriage, but surviving partners may be able to apply for provision from the estate of a deceased partner under the Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979.
Due to their colonial past, some English-speaking Caribbean islands have statutes concerning common-law marriage similar to those in England. However, the term "common-law marriage" is also widely used to describe any long-term relationship between male and female partners.
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Frequently asked questions
Common-law marriage is a legal marriage that does not require a formal ceremony, marriage license, or marriage certificate. It is a mutual agreement between two people to be married and to live together as spouses.
Common-law marriage is recognized in only a few states in the US, including Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, and Utah, as well as Washington, D.C.
The requirements for a common-law marriage include cohabitation, a mutual agreement to be married, and holding themselves out as a married couple to the community. Some states may have additional requirements.
Depending on the jurisdiction, certain legal documents may be required to prove a common-law marriage, especially if one partner passes away and the other needs to inherit property or receive benefits.
Yes, same-sex couples can be considered common-law married as long as they meet the requirements of cohabitation, mutual agreement, and holding themselves out as a married couple to the community.
