Kara Sears
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a legally recognised marriage that does not require a marriage license or a formal ceremony. Instead, it is based on the couple's agreement to consider themselves married, followed by cohabitation. While it originated in ancient Greece and Rome, where marriages were primarily private agreements between individuals and estates, common-law marriage has evolved and is currently recognised in a limited number of jurisdictions, including certain states in the US. The requirements for a valid common-law marriage vary by state, but typically include factors such as cohabitation, joint finances, and holding themselves out as a married couple to the community.
| Characteristics | Values |
|---|---|
| Legal Status | Common-law marriage is a legally recognised marriage in some jurisdictions. |
| Ceremony | No formal ceremony, officiant, or marriage license is required. |
| Cohabitation | Couples must live together for a period of time, though there is no set minimum. |
| Intention | Both partners must intend to be married and hold themselves out as a married couple to their community. |
| Legal Capacity | Both partners must have the legal right to marry, i.e., they must be of sound mind, at least 18 years old, and not already married. |
| Proof | In some jurisdictions, couples may have to provide legal documents to prove their common-law marriage. |
| Rights | Common-law spouses may be eligible for financial and social security benefits, as well as medical benefits in some jurisdictions. |
| Separation | Common-law marriages must be legally ended through divorce in recognising states. |
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What You'll Learn
Common-law marriage recognition in different countries and states
Common-law marriage, also known as non-ceremonial marriage, is a legally recognised marriage between two people who have not purchased a marriage license or engaged in a formal ceremony. Common-law marriage is not permitted in all jurisdictions. However, those that do not permit it will typically respect the validity of such marriages lawfully entered in another state or country.
In the US, common-law marriage is permitted in several states, including Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia. The specific requirements for common-law marriage vary by state, but generally include factors such as cohabitation, joint finances, and public recognition of the marriage. Some states, like Alabama, have abolished common-law marriage, but still recognise marriages that were established before the change in law.
In Canada, while common-law marriage is not recognised, informal cohabitation relationships are acknowledged for certain purposes, creating some legal rights and obligations. Similarly, in England and Wales, the term "common-law marriage" is used socially to refer to unmarried, cohabiting heterosexual couples, but this does not confer any legal rights or obligations. In Scotland, common-law marriage does not exist, although there was a form of irregular marriage called 'marriage by cohabitation with habit and repute' that was recognised until 2006.
Australia does not have common-law marriage, but 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. Since 2009, de facto relationships have been recognised in the Family Law Act (Commonwealth), applicable in states that have referred their jurisdiction on de facto couples to the Commonwealth.
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Legal rights and obligations of common-law spouses
The term "common-law marriage" is often used to describe various types of couple relationships, particularly cohabitation, whether or not registered. However, this usage differs from its original meaning, as it is not legally recognised as a marriage in many places. In Canada, for instance, 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. They may be defined as "unmarried spouses" and treated the same as married spouses in certain contexts like taxes and financial claims.
In the United States, common-law marriage has existed since colonial times, and is still recognised in some states. 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. There is no statutory requirement for the length of time a couple needs to live together, but generally, the longer they live together, the stronger their case is for common-law marriage. Both partners must have the legal capacity to marry, intend to be married, and behave as a married couple.
In England, Wales, Northern Ireland, and Scotland, there is little to no legal grounding for the concept of common-law marriage. Unmarried partners are recognised for certain purposes in legislation, such as for means-tested benefits. However, in many areas of the law, cohabitants enjoy no special rights, and ownership of assets is decided by property law when a cohabiting relationship ends.
In Ireland, the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (in force between 2010 and 2015) gave some rights to unmarried cohabitants. In Israel, courts and a few statutes have recognised yeduim batsibur, which refers to a couple who are "known in the public".
To protect their rights, common-law spouses can put aspects of their relationship into writing in a 'cohabitation contract' or 'cohabitation agreement', outlining how they plan to regulate finances during their relationship and how they will resolve financial affairs if their relationship ends. They can also become 'tenants in common' or 'joint tenants' in property ownership. While a cohabitation agreement can provide a sense of comfort and security, it may not be legally enforceable, and separate, legally enforceable agreements on specific matters may be advisable.
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The process of ending a common-law marriage
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 individuals to consider themselves married, followed by cohabitation, rather than a statutorily defined process. It is important to note that not all jurisdictions permit common-law marriage, and the term is often used incorrectly to describe various types of cohabiting couple relationships.
In the United States, common-law marriage has existed since colonial times, and it is currently recognized in some form in more than half of the states. The specific requirements for common-law marriage vary by state, but generally include factors such as cohabitation, the legal capacity to marry, and the mutual intent to be married.
To end a common-law marriage, the following steps may be involved:
Validation of Common-Law Marriage
Before initiating divorce proceedings, a couple must first establish the validity of their common-law marriage in a court of law. This typically involves presenting evidence of cohabitation for a specific period, mutual intent to live as a married couple, and publicly presenting themselves as such. This may include providing legal documents, such as joint tax returns, insurance policies, joint bank accounts, and other evidence of shared assets or liabilities.
Filing a Formal Petition
The divorce process begins with the submission of a formal petition to the court, outlining the reasons for the divorce and any pertinent issues that need to be addressed, such as property division, alimony, and child custody. All states allow for a no-fault divorce, meaning that spouses do not need to prove fault to obtain a divorce.
Distribution of Assets and Liabilities
Similar to traditional marriages, common-law couples accumulate assets and liabilities during their marriage. These must be distributed equitably during the divorce process, which may involve evaluating jointly held properties, shared debts, and other financial matters. Both parties can agree upon a division, or the court will decide on their behalf if an agreement cannot be reached.
Alimony and Child Support
Depending on the circumstances, one party may be required to pay alimony or spousal support to the other. If children are involved, issues of legal paternity, child custody, and child support must be addressed. If the children are legally considered the offspring of both partners, the court may mandate child support payments from one parent to the other, especially if one parent becomes the primary caregiver.
Finalization of the Divorce
The court will review and approve all aspects of the divorce, including property division, alimony, and child custody arrangements. A judgment of divorce will then be granted, formally and legally ending the common-law marriage. It is important to note that bigamy laws apply to common-law marriages, making it illegal to enter a new marriage before legally ending the previous one.
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The history of common-law marriage
The concept of common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, refers to a marriage that is considered valid by the partners but is not formally recorded or celebrated in a civil or religious ceremony. It is a form of marriage that arises from the couple's agreement to consider themselves married, followed by cohabitation, rather than through a legally defined process.
In colonial America, common-law marriage came about due to the difficulty in finding qualified clerics or wedding officiants. Couples considered themselves married under common law out of necessity. However, in 1753, the Parliament of Great Britain passed the Clandestine Marriages Act, which ended common-law marriages in England and Wales by requiring marriages to be performed by the Church of England. Notably, this act did not apply to the American colonies, allowing common-law marriage to continue in colonial America.
Over time, common-law marriage recognition has decreased. In the United States, it is now only recognised in a small number of states, and the trend is moving towards abolition. Similarly, in Canada, common-law marriage is not recognised, although informal cohabitation relationships are acknowledged for certain purposes, creating legal rights and obligations. In Scotland, common-law marriage never existed, although there was a form of irregular marriage called 'marriage by cohabitation with habit and repute' until 2006.
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Common misconceptions about common-law marriage
Common-law marriage, also known as non-ceremonial marriage, informal 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. However, there are several misconceptions surrounding common-law marriage.
Firstly, it is a common misconception that cohabitation alone constitutes a common-law marriage. While cohabitation is a requirement for common-law marriage, it must be accompanied by "holding out", which means the couple's actions and presentation to the world as husband and wife. Simply living together for a certain number of years does not create a common-law marriage, and there is no specific duration for which a couple must live together to meet the requirements.
Secondly, common-law marriage is not recognized in most states, and where it is recognized, there is no simple test to determine if a couple qualifies as married under common law. The requirements for common-law marriage vary among states, and it is the legal system, rather than the couple, that decides if a common-law marriage exists.
Thirdly, in the event of a split, a common-law marriage may not confer the same rights as a regular marriage. While a common-law spouse may have the same legal rights as a person married in a religious ceremony or before a judge, it can be challenging to prove the existence of a common-law marriage. This lack of clarity can impact the division of assets, debts, and inheritance rights.
Lastly, while some jurisdictions may respect the validity of a common-law marriage from another state or country, they may not necessarily recognize it as a marriage. Instead, it may be considered a parallel interpersonal status, such as a domestic partnership or civil union, with varying rights and obligations.
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Frequently asked questions
Common-law marriage, also known as non-ceremonial marriage, is a legally recognised marriage between two people who have not purchased a marriage license or engaged in a formal ceremony.
Common-law marriage is recognised in a few places. In the US, 15 states and the District of Columbia recognise it, but each has its own requirements. In Canada, common-law marriage is not recognised, but informal cohabitation relationships are acknowledged for certain purposes. In the UK, England, Wales, and Scotland do not recognise common-law marriage, but it is still referred to socially.
The requirements for a common-law marriage vary depending on the location. Generally, both partners must have the legal capacity to marry, intend to be married, and behave as a married couple. Some states require the couple to live together for a consistent period, such as seven or ten years, but there is no statutory requirement for this length of time.
Common-law spouses who meet their state's requirements are eligible for many of the same benefits as legally married couples, including financial and medical benefits. For example, they may be able to combine health insurance policies to reduce monthly premiums and receive spousal Social Security benefits.
