Keith Mack
Common-law marriage, also known as informal marriage, is a legally recognised marriage between two people who have not purchased a marriage license or engaged in a ceremony overseen by an officiant. Common-law marriages are permitted in several US states, including Utah, Pennsylvania, and the District of Columbia. Outside of the US, common-law marriages are recognised in some Aboriginal nations, while countries like France and Belgium offer civil unions, which are similar to common-law marriages. However, countries like Australia, Canada, and India do not recognise common-law marriages as legally valid.
Characteristics and values of common-law marriage
| Characteristics | Values |
|---|---|
| Number of countries that recognise common-law marriage | 9 US states, the District of Columbia, some Aboriginal nations, and the Navajo Nation |
| Other names for common-law marriage | Non-ceremonial marriage, sui iuris marriage, informal marriage, de facto marriage, more uxorio, marriage by habit and repute, marriage in fact |
| Requirements for common-law marriage | Must be of marriageable age, must not be already married, must live together for a "significant" period, must live together voluntarily, must cohabit, must act as a married couple in society |
| Benefits of common-law marriage | Social Security, combining health insurance policies, tax benefits, spousal benefits, financial benefits, legal rights |
| Countries that do not recognise common-law marriage | Canada, Australia, France, 13 US states, the Territory of Guam, the Commonwealth of the Northern Mariana Islands |
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What You'll Learn
Common-law marriage in the US
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 is currently recognised in a handful of US states. The origins of common-law marriage are uncertain, but it is arguably the original form of marriage, in which a couple takes up residency together, holds themselves out to the world as a married couple, and otherwise behaves as a married couple. The term is often used colloquially to refer to cohabiting couples, regardless of their legal rights, which can create public confusion.
The US Supreme Court ruled in Meister v. Moore in 1877 that a non-ceremonial marriage could be lawful and enforceable if a state's law did not specifically prohibit it. The US Constitution's full faith and credit clause also states that all states must respect other states' laws, meaning that states without common-law marriage must recognise a common-law marriage from another state. However, this only applies if the couple's relationship meets all the requirements of common-law marriage while living in a common-law marriage state.
The requirements for common-law marriage vary by state, but some general conditions must be met for a couple to be considered married by common law. These include:
- The couple must live together in a state that recognises common-law marriage.
- They must live together for a consistent period, such as seven or ten years.
- They introduce themselves as a married couple to friends, neighbours, and coworkers, calling each other "husband" or "wife" and perhaps using the same last name.
- They maintain joint finances, such as leases/mortgages, bank accounts, and credit cards.
- Neither partner is married to anyone else.
Some states, like Utah, only recognise common-law marriages that have been validated in a judicial proceeding. Other states, like Pennsylvania, only recognise common-law marriages that existed before a certain date. It is important to note that common-law marriage is not a valid form of marriage in most states and does not carry any legal rights. Couples considering common-law marriage should understand the legal ramifications of informal unions and the specific requirements of their state.
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Common-law marriage in Aboriginal nations
Common-law marriage, also known as non-ceremonial marriage, informal marriage, de facto marriage, or marriage by habit and repute, is a marriage that results from an agreement between two people to consider themselves married, followed by cohabitation, without a statutorily defined process. Common-law marriages are not recognized in all jurisdictions, but those that do not permit it will typically respect the validity of such marriages lawfully entered in another state or country.
In the United States, common-law marriages are permitted in some states and by some provisions of military law. Many Aboriginal nations within the United States permit common-law marriage, including the Navajo Nation, which also allows its citizens to marry through tribal ceremonial and traditional processes. However, common-law marriages can no longer be contracted in any of the other states. All U.S. jurisdictions recognize validly contracted out-of-state common-law marriages under their laws of comity and choice of law/conflict of rules. For example, California abolished common-law marriage in 1895 but will recognize a common-law marriage validly contracted in another state.
In Australia, the term "de facto relationship" is often used to refer to relationships between any two persons who are not married but are living in certain domestic circumstances. Since March 1, 2009, de facto relationships have been recognized in the Family Law Act (Commonwealth), applicable in states that have referred their jurisdiction on de facto couples to the Commonwealth's jurisdiction. However, Western Australia, the only state that has not referred its jurisdiction, still has valid state legislation. There is no federal recognition of de facto relationships outside of Australia, so this is a state matter.
While the term "common-law marriage" is not commonly used in the context of Aboriginal nations in Australia, there are some cultural practices and beliefs surrounding marriage that differ from those of Western nations. For example, marriage in Aboriginal societies was not just a relationship between two people, but a link between two families or groups of kin, with mutual obligations and responsibilities. Infant betrothal was common, and a girl's marriage was typically settled before she reached puberty. Polygyny was also practiced, with men often marrying in their late 20s, and women as young as 12 or 13.
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Common-law marriage in Australia
Australia does not have common-law marriage as it is understood under common law. Instead, the term "de facto relationship" is used to describe relationships between any two persons who are not married but are living together. De facto relationships have been recognised in the Family Law Act (Commonwealth) since March 1, 2009, and are applicable in states that have referred their jurisdiction on de facto couples to the Commonwealth. In Western Australia, the only state that has not referred its jurisdiction, state legislation is still valid.
De facto relationships in Australia are defined as couples living together in a genuine domestic relationship for two years, even without their knowledge. De facto relationships provide most of the same rights and responsibilities afforded to married couples, including the division of property, spousal maintenance, and other matters that arise following a separation.
The Marriage Act 1961 instituted a unified legal definition of marriage under Australian federal law. Everything else, including divorce, child support, and division of assets, falls under the Family Law Act 1975. The Marriage Act stipulates the conditions that need to be met for a marriage to be valid, such as age and who can perform the marriage ceremony.
While common-law marriage is not recognised in Australia, de facto relationships offer a similar framework for couples who live together without undergoing a formal marriage ceremony. It is important to note that there is no federal recognition of de facto relationships existing outside of Australia, and this remains a state matter.
In other parts of the world, common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that results from an agreement between two people to consider themselves married, followed by cohabitation, without a statutorily defined process. While not all jurisdictions permit common-law marriage, many will respect the validity of such marriages lawfully entered into in other states or countries.
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Common-law marriage in Canada
Common-law marriage, also known as non-ceremonial marriage, informal marriage, de facto marriage, or marriage by habit and repute, is a marriage that results from the couple's agreement to consider themselves married, followed by cohabitation, rather than through a statutorily defined process. Common-law marriage is not recognized in Canada. However, informal cohabitation relationships are recognized for certain purposes, creating legal rights and obligations.
In Canada, the definition of a common-law relationship varies across provinces. For example, in Nova Scotia, a couple is considered to be in a common-law relationship if they live together in a marriage-like relationship and publicly refer to themselves as partners or spouses. The duration of cohabitation required to be considered common-law partners differs depending on the issue being addressed. In Saskatchewan, a couple is considered to be in a common-law relationship after cohabiting for at least two years. In British Columbia, a couple is considered common-law after living together in a marriage-like manner for at least two continuous years or if they have lived together for less than two years but have a child together.
In Alberta, a common-law relationship is called an Adult Interdependent Relationship. A couple is considered to be in such a relationship if they have made a formal and valid Adult Interdependent Partner agreement, have lived together in a relationship of interdependence for at least three continuous years, or have lived together in a relationship of interdependence where there is a child of the relationship. In Quebec, common-law relationships are referred to as de facto unions, and a couple is considered common-law for tax purposes after cohabiting for at least two years. It is important to note that in Quebec, unless legally married, a common-law spouse will not be entitled to anything in the event of their partner's death.
In Ontario, the Supreme Court of Canada has held that the distinction between married and cohabiting spouses is not discriminatory, as married spouses have consciously chosen to enter into a marriage rather than live common-law. However, remedies are available at common law for cohabiting spouses, such as the constructive trust resulting from unjust enrichment. This allows a cohabiting spouse who is not on the title to gain a right to property, such as the matrimonial home.
Unlike a marriage, which can only be legally ended by divorce, there is no legal process for terminating a common-law relationship in Canada. To end the relationship, the couple typically needs to separate, stop living together, and annul their cohabitation agreement if they have one. While there is no federal recognition of de facto relationships outside of Canada, all states in the U.S. recognize validly contracted foreign common-law marriages, including common-law marriages from other states.
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Common-law marriage in the UK
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that results from an agreement between two people to consider themselves married, followed by cohabitation, rather than through a statutorily defined process. Common-law marriage is not recognised in the UK, including England, Wales, and Northern Ireland. However, in Scotland, cohabiting couples have some basic rights if their relationship ends.
While common-law marriage is not recognised in the UK, there are certain rights afforded to cohabiting couples. For example, in England and Wales, cohabiting couples can specify what they leave to their partner in their will, providing security for the future. Additionally, cohabiting couples can take out life insurance policies that will pay out a lump sum to their partner in the event of their death.
It is important to note that the legal rights of cohabiting couples in the UK are not the same as those of married couples or civil partnerships. In the UK, there is no legal requirement for cohabitees to maintain one another financially. However, cohabiting couples can provide details of their family finances for credit agreements or government benefits, which can include their income.
There have been calls for legislative changes to introduce common-law marriage in the UK. For example, shadow attorney general Emily Thornberry has cited the regimes in New Zealand, Scotland, and Ireland as examples of countries with similar laws. She has argued that implementing a form of common-law marriage or a 'de facto' relationship status would promote greater legal protection for the financially weaker party in a relationship. However, there has also been resistance to such reforms, with some arguing that they would undermine marriage and impose rights on couples who do not want them.
In summary, while common-law marriage is not recognised in the UK, there are certain rights and protections in place for cohabiting couples. Additionally, there is an ongoing debate about whether to introduce common-law marriage in the UK, with proponents arguing for greater legal protection for unmarried couples and opponents expressing concerns about the potential impact on marriage and individual liberties.
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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 marriage is a rarity today. It is permitted in several U.S. states, including Utah, Pennsylvania, and the District of Columbia. Many Aboriginal nations also permit common-law marriage. Outside of the U.S., common-law marriage was historically frequent in Roman Catholic countries in Europe, but this was abolished by the Council of Trent (1545-1563). Common-law marriage is not recognised in Canada, Australia, or France.
The requirements for a common-law marriage vary depending on the jurisdiction. In the U.S., the requirements include living together in a state that recognises common-law marriage, living together for a consistent period (e.g. seven or ten years), introducing yourselves to others as a married couple, maintaining joint finances, and not being married to anyone else.
Common-law spouses who meet the requirements of their state are eligible for many of the same benefits as legally married couples, including Social Security benefits and tax benefits.
