Keith Mack
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 ceremony. The requirements for common-law marriage vary across different states and countries, with only a few US states and the District of Columbia recognising it as valid. Factors that determine common-law marriage include the length of cohabitation, whether the couple holds themselves out as married, and whether they have joint finances.
| Characteristics | Values |
|---|---|
| Legal recognition | Only recognized in some U.S. states, the District of Columbia, and certain provinces in Canada |
| Marriage license | Not required |
| Ceremony | Not required |
| Time cohabiting | No set time, but must cohabit for a consistent period, e.g. 7 or 10 years |
| Community recognition | The couple must hold themselves out to friends, family, and the community as "married" |
| Joint finances | May have joint finances such as leases/mortgages, bank accounts, and credit cards |
| Previous marriages | Neither partner must be married to anyone else |
| Same-sex marriage | Recognized in some states |
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What You'll Learn
Cohabitation and consent to live as spouses
Cohabitation is an arrangement where two people who are not legally married live together as a couple. They are often involved in a romantic or sexually intimate relationship on a long-term or permanent basis. Such arrangements have become increasingly common in Western countries since the late 20th century, led by changing social views, especially regarding marriage.
In family law, common-law marriage is a legal marriage that is informal, meaning that the married couple never had a formal wedding ceremony and never obtained a marriage license 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". It is important to note that cohabitation as an unmarried couple is not enough to establish a common-law marriage.
In some countries, cohabitation is legally recognised as a live-in relationship. For example, in India, recent court rulings have ascribed certain rights to long-term cohabiting partners. Female live-in partners have protection rights under the Protection of Women from Domestic Violence Act 2005, subject to specific conditions. One of the conditions is that the couple must hold themselves out to society as being akin to spouses. Similarly, in the United Kingdom, cohabiting couples can get similar orders from the court as married couples when they separate or divorce if the court is satisfied that one party was financially dependent on the other.
Cohabitation can also refer to pre-engagement or post-engagement living arrangements between couples. Some studies suggest that relationships with pre-engagement cohabitation may be less stable, while others indicate a weakening of the positive relationship between premarital cohabitation and marital instability for more recent birth and marriage cohorts.
It is important to note that the rights of cohabiting couples may differ from those of legally married couples or civil partnerships. Cohabiting couples may have certain rights, such as similar orders from the court in the event of separation or divorce, but they generally have fewer rights compared to married couples or civil partnerships. For example, in the context of inheritance, if one partner in a cohabiting couple dies without a will, the surviving partner has no automatic right to any share of the estate, regardless of the length of their relationship. To protect their financial interests, cohabiting couples can enter into a 'cohabitation agreement', which is a voluntary, signed agreement that outlines joint financial arrangements and the separation of assets in the event of a breakup.
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Community recognition
In the United States, common-law marriage has a long history, dating back to colonial times. Today, a handful of states recognize common-law marriages to varying degrees. These states include Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, Utah, and the District of Columbia. These states have their own guidelines and requirements for what constitutes a common-law marriage.
To establish a common-law marriage, couples typically need to present themselves as married to their community. This can include using the same last name, introducing each other as husband and wife, celebrating anniversaries, and sharing financial responsibilities and benefits, such as joint bank accounts or insurance policies. The length of time a couple lives together is also a factor considered by courts, with longer periods of cohabitation generally strengthening the case for common-law marriage.
The requirements for community recognition vary across states. For example, in Kansas, couples must be mentally capable, at least 18 years old, and represent themselves as married in their community. In contrast, New Hampshire only recognizes common-law marriages for inheritance purposes when the couple has cohabited for at least three years before one partner's death.
While community recognition is crucial, it is important to note that simply living together for a certain period is usually insufficient to establish a common-law marriage. Specific factual circumstances, such as exchanging words of intent to be married and holding themselves out as spouses to others, are generally required. Additionally, some states may require legal documentation or registration to provide further evidence of the marriage.
In summary, community recognition is a fundamental aspect of common-law marriage, and couples must present themselves as married to their social circle and community. However, the specific requirements and legal ramifications of common-law marriage vary across different jurisdictions, and it is always advisable to consult local laws and regulations for detailed information.
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Same-sex common-law marriages
In family law, a common-law marriage is a legal marriage that does not require a formal ceremony, marriage license, or marriage certificate. Common-law marriage is recognised in seven US states and the District of Columbia, with nine other states recognising it with some restrictions. The requirements for a common-law marriage include cohabitation and holding themselves out to friends, family, and the community as "married".
Same-sex couples can be considered common-law married. The Supreme Court case Obergefell v. Hodges ruled that same-sex couples have the right to marry, and states cannot ban these marriages. This was bolstered by the 2022 Respect for Marriage Act. In the US, same-sex couples can enter marriage contracts with the same capacity as opposite-sex couples, and state courts can declare same-sex relationships to be common-law marriages. This is important for long-term same-sex couples who were previously prevented from marrying due to discriminatory laws.
In some cases, same-sex common-law marriages can be recognised even if one spouse died before same-sex marriage was legalised in their jurisdiction. For example, Pennsylvania recognises same-sex common-law marriages contracted before 1 January 2005, despite only legalising same-sex marriage in 2014. Similarly, a South Carolina court declared a same-sex couple married since 1987, despite the state only recognising same-sex marriage in 2014.
In Canada, provinces may grant couples in marriage-like relationships similar rights and responsibilities as married couples, but they are not legally considered married. They may be defined as "unmarried spouses" and treated as married for tax and financial purposes. Several Native American jurisdictions also extend marriage rights to same-sex couples, as they are federally recognised sovereign nations and can create their own policies.
It is important to note that the term "common-law marriage" is often used incorrectly to describe cohabitation or other legally recognised relationships that are not legally marriages.
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Common misconceptions
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 capable of entering into a legal marriage agree to be married and live together as such, without a license or ceremony.
- Cohabitation automatically leads to common-law marriage: This is a widespread misunderstanding. Simply living together for a certain period, such as seven or ten years, does not create a common-law marriage. While cohabitation is a requirement in common-law marriage, it is not sufficient on its own. The couple must also agree to be married and present themselves as such to the world.
- Common-law marriage is recognised everywhere: This is false. Common-law marriage is not recognised in most states or countries. In the US, it is only recognised in a few states and the District of Columbia, and even then, there are specific requirements that must be met. In Canada, while some provinces may grant similar rights to common-law couples, they are not legally considered married. In the UK, a 2008 poll showed that 51% of respondents incorrectly believed that cohabitants had the same rights as married couples.
- Common-law marriage grants the same rights as a regular marriage: While in some cases, common-law spouses may have similar rights to married couples, there are important differences. For example, in the US, rights to protecting a family residence and dividing family assets are only granted to legally married couples. Additionally, an unmarried partner does not inherit in the same way a surviving spouse does, and they may not be eligible for social security benefits or involvement in certain decisions without proper legal planning.
- Living together for a certain period grants a common-law marriage: The length of time a couple lives together is not the determining factor in a common-law marriage. While cohabitation for a period of time is necessary, there is no magic number of years that automatically results in a common-law marriage. The specific requirements may vary depending on the state or jurisdiction.
- The couple decides if they are common-law married: This is not true. It is the legal system, not the couple, that determines whether a common-law marriage exists. A couple may believe they have a common-law marriage, but until it is recognised by the legal system, it is not officially valid.
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State recognition
In the United States, common-law marriage is recognised in a limited number of states, including Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, Utah, and the District of Columbia. These states have their own requirements, which may include factors such as the length of cohabitation, public recognition as a married couple, joint finances, and the intention to be married. For example, Texas allows for common-law marriages, and couples can register their union by filing a declaration with the county clerk.
Some states, like Pennsylvania, retroactively recognise common-law marriages for same-sex couples before the legalisation of same-sex marriage. Additionally, nine states recognise common-law marriage with restrictions, and while they may not have specific statutes, they require certain conditions to be met. These conditions may include living together in a state that recognises common-law marriage, holding themselves out as married, and maintaining joint finances.
It is important to note that the majority of states in the U.S. do not legally recognise common-law marriages. These states may, however, respect the validity of such marriages if they were lawfully established in another state or country. For example, California does not recognise common-law marriages within the state, but it will acknowledge a common-law marriage obtained in a state that does recognise it.
In Canada, provinces may grant couples in marriage-like relationships similar rights and responsibilities as married spouses, but they are not legally considered married. They may be defined as "unmarried spouses" and treated similarly to married couples for specific purposes, such as taxes and financial claims.
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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 ceremony. Common-law marriage is not recognised in all jurisdictions.
A common-law marriage is typically determined by the length of time a couple has lived together, whether they hold themselves out to the world as a married couple, and whether the jurisdiction they live in recognises 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. These rights may include financial benefits such as Social Security, as well as the ability to inherit property and receive benefits if their partner dies.
