Gavin Howe
Common-law marriage is a way for couples to marry without legal formalities such as a marriage license or ceremony. In the United States, common-law marriage is recognised in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia, with Utah, South Carolina, and New Hampshire having limited recognition. In the UK, 51% of respondents to a 2008 poll incorrectly believed that cohabitants had the same rights as married couples. In Scotland, common-law marriage does not exist, although there was a form of irregular marriage called 'marriage by cohabitation with habit and repute' until 2006. Couples in common-law marriages have the same legal obligations as married couples, such as the duty to support each other and protect marital property.
| Characteristics | Values |
|---|---|
| Legal recognition | Common-law marriage is legally recognised in some states in the US, Canada, and Scotland (until 2006). It is not recognised in Australia, England, Wales, or New Zealand. |
| Legal rights | In states where common-law marriage is recognised, couples have the same legal rights and obligations as formally married couples, including inheritance rights, tax purposes, and financial claims. |
| Requirements | The requirements for a common-law marriage include the intention to be married, cohabitation, and holding themselves out to the world as a married couple. Some states have additional requirements, such as a minimum age of 18 and a legal declaration of informal marriage. |
| Proof | Proof of common-law marriage may include legal documents, lease agreements, tax returns, insurance policies, or a court ruling if the marriage is disputed. |
| Termination | Ending a common-law marriage is similar to a formal marriage; couples must file for divorce, and court proceedings must be initiated within two years of separation. |
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What You'll Learn
Common-law marriage requirements
In the United States, common-law marriage is a form of irregular marriage that is only recognised in seven states, the District of Columbia, and some provisions of military law. Two other states recognise it for limited purposes. The states that recognise common-law marriage include Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire have limited recognition of common-law marriage.
To be recognised as a common-law marriage in the US, couples must meet the following requirements:
- Both parties must be at least 18 years old and be legally free to marry.
- The couple must intend to be married and act on this intention by living together and holding themselves out publicly as a married couple.
- The couple must meet the basic requirements under state law for a legal common-law marriage.
In Texas, couples can file a legal "Declaration of Informal Marriage" to establish a common-law marriage. This form must be completed by both marriage partners, sworn or affirmed in the presence of the County Clerk, and recorded as part of the Official County Records.
In Canada, some provinces may extend to couples in marriage-like relationships many of the rights and responsibilities of a marriage, but this does not constitute legal recognition of common-law marriage.
In the UK, a 2008 poll showed that 51% of respondents incorrectly believed that cohabitants had the same rights as married couples. Scotland does not recognise common-law marriage, although a form of irregular marriage called 'marriage by cohabitation with habit and repute' applied to couples in special circumstances until 2006.
In Australia, the term "de facto relationship" is often used to describe relationships between any two persons who are not married but are living in certain domestic circumstances. De facto relationships have been recognised in the Family Law Act since 2009, but there is no federal recognition of de facto relationships outside of Australia.
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Legal recognition
The legal recognition of common-law marriage varies across different countries and states. In the United States, common-law marriage, also known as sui juris marriage, informal marriage, or marriage by habit and repute, is legally recognised in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire have limited recognition of common-law marriage.
In states that legally recognise common-law marriage, couples in such marriages have the same rights as those who underwent a formal marriage process. To be legally recognised, the couple must meet the requirements of a common-law marriage, which vary by state. In Texas, for example, a couple must be at least 18 years old and file a legal "Declaration of Informal Marriage" with the County Clerk. This declaration is then recorded as part of the Official County Records and forwarded to the Texas Bureau of Vital Statistics.
In some states, common-law marriage can be established through cohabitation and holding themselves out publicly as a married couple. For example, in Texas, same-sex couples can enter into a common-law marriage by meeting the three elements listed in Section 2.401 of the Texas Family Code. However, it is important to note that most U.S. states have stopped allowing these informal marriages through laws or court decisions.
In Canada, while some provinces may grant couples in marriage-like relationships similar rights and responsibilities as married couples, they are not legally considered married. Similarly, in Australia, the term "de facto relationship" is used to describe unmarried couples living in certain domestic circumstances, and these relationships are recognised under the Family Law Act (Commonwealth). However, there is no federal recognition of de facto relationships outside of Australia, and it is not considered a common-law marriage.
In the United Kingdom, a 2008 poll showed that 51% of respondents incorrectly believed that cohabitants had the same rights as married couples. While Scotland abolished common-law marriage with the Family Law (Scotland) Act 2006, irregular marriages established before May 4, 2006, are still recognised.
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History of common-law marriage
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. The origins of common-law marriage are uncertain, but it is arguably the original form of marriage, where a couple cohabits, holds themselves out to the world as a married couple, and otherwise behaves as a married couple.
In medieval Europe, marriage came under the jurisdiction of canon law, which recognized as valid a marriage in which the parties stated that they took one another as wife and husband, even in the absence of any witnesses. Community recognition of a marriage was largely what qualified it as a marriage. Civil and religious officials took no part in marriage ceremonies and did not keep registries. There were several more or less formal ceremonies to choose from, as well as informal arrangements. It was relatively common for couples to cohabit with no ceremony; cohabiting for a moderate period was sufficient to make it a marriage.
In ancient Greece and Rome, marriages were private agreements between individuals and estates. In medieval England, common-law marriages were often recognized based on the couple's intent and public acknowledgment. As societies evolved, common-law marriage found its way into legal systems, adapting to cultural and societal changes. Its prevalence varied, influenced by factors such as religion, tradition, and legal developments.
In the United States, common-law marriage continued in early America, though it is far less popular and recognized than it once was. In 1847, Alabama became the first state in the United States to officially recognize common-law marriage. In 1855, a New York judge described marriage as "the most sacred" of social relationships, stating that society would be threatened if a long-term cohabitation as man and wife could be overturned. Over time, common-law marriage became recognized in various parts of the United States. However, in 1933, New York abolished common-law marriage through the passage of the Domestic Relations Law Section 11, which states that a marriage is only valid if a marriage license has been obtained and the marriage solemnized as provided by law. As of 2022, common-law marriages are still recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia.
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Common misconceptions
One of the most common misconceptions about common-law marriage is that it is a widely recognized legal concept. In reality, common-law marriage is only recognized in a handful of places, such as certain states in the US and, to some extent, in Canada. Even in these places, there is no simple test to determine whether a couple qualifies as married under common law.
Another misconception is that cohabitation alone constitutes a common-law marriage. While cohabitation is an important factor, it is not sufficient on its own. The couple must also "hold themselves out" as a married couple, which means their actions and behaviour must convey to the world that they are husband and wife. For example, this could include the woman taking her husband's last name or the couple filing a joint tax return.
A third misconception is that common-law marriage automatically occurs after a certain period of cohabitation, often believed to be seven years. This idea is a myth, and there is no set time period that guarantees a common-law marriage. Instead, the determination of whether a common-law marriage exists can be complex and may require legal intervention.
Additionally, some people believe that a couple can simply agree to be married under common law, without any legal formalities. While the specific requirements vary by jurisdiction, common-law marriage typically involves more than just an agreement between the couple. In some places, such as Texas, a couple can file a legal "Declaration of Informal Marriage" to establish a common-law marriage officially.
Finally, there is a misconception that common-law marriage provides the same rights as a regular marriage. While in some respects this may be true, there can be complexities and limitations when it comes to the legal rights of unmarried partners in a common-law marriage. For example, the division of assets and protection of a family residence may only be granted to legally married couples.
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How to end a common-law marriage
Ending a common-law marriage can be a complex process, and the specific steps involved may vary depending on the state in which the marriage was established. Here is a general guide on how to end a common-law marriage:
Determine the Validity of Your Common-Law Marriage
The first step is to establish whether your relationship meets the criteria for a common-law marriage in your state. Common-law marriage requirements vary, but generally, there are three key elements: cohabitation, mutual intention to be married, and public portrayal as a married couple. Some states may have additional requirements, such as age restrictions or a mandatory registration process.
Seek Legal Assistance
Given the complexities of proving and dissolving a common-law marriage, it is highly advisable to consult with an experienced family law attorney or divorce lawyer. They can guide you through the legal landscape, which may involve unique considerations compared to traditional marriages.
File for Divorce
If your common-law marriage is legally recognized, you will need to file for divorce to officially dissolve the relationship. This process typically mirrors that of a traditional divorce, including the distribution of assets and liabilities, alimony or spousal support, and child custody arrangements. You may need to prove the validity of your common-law marriage before initiating the divorce process.
Understand State-Specific Requirements
The divorce process can vary by state, as not all states recognize common-law marriages. It is essential to understand your state's residency requirements and specific divorce procedures. Some states, like Texas, may not recognize common-law separations, while others, like Kansas, do.
Preventative Measures for Couples Not in a Common-Law Marriage
For couples who do not qualify for common-law marriage, proactive steps can be taken to safeguard their rights. Consider creating a cohabitation agreement, a legal document that defines each partner's rights and responsibilities in the event of a separation. Additionally, estate planning tools like wills or trusts can establish inheritance rights and clarify how property and finances should be managed.
Remember, the information provided here is a general guide, and the specific steps to ending a common-law marriage may differ based on your unique circumstances and the laws of your state.
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Frequently asked questions
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, nor celebrated in a formal civil or religious service. Common-law marriages are also known as sui juris marriage, informal marriage, marriage by habit and repute, or marriage in fact.
Common-law marriage is recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire have limited recognition of common-law marriage. Outside of the US, common-law marriages are recognized in what are now the United States and Canada. Australia does not have common-law marriage, but de facto relationships are recognized in the Family Law Act (Commonwealth).
To prove a common-law marriage, you must meet the requirements for a common-law marriage in your state or jurisdiction. This may include providing legal documents such as lease agreements, tax returns, and insurance policies, or filing a legal "Declaration of Informal Marriage". If there is a dispute about the existence of a common-law marriage, a judge may consider the couple's actions and the specific circumstances of the case to decide if the marriage is valid.
