Keith Mack
The term common-law marriage is often used to refer to a couple that lives together and holds themselves out publicly as a married couple without legally registering their union with the state. While common-law marriages are no longer widely recognized in the United States, with only around eight states still allowing them, they can still confer many of the same rights as legal marriages. In other countries, such as Canada, common-law spouses may be legally defined as unmarried spouses and treated the same as married spouses for certain purposes, such as taxes and financial claims. The term common-law girlfriend is sometimes used colloquially to describe a couple that has been together for an extended period without officially acknowledging their relationship.
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What You'll Learn
Common-law marriage is not legally recognised
The term "common-law marriage" refers to a marriage that arises from an agreement between two people to consider themselves married, followed by cohabitation, rather than through a formal process. While some jurisdictions recognise common-law marriages, many others, including Australia, Canada, England and Wales, Ireland, and the majority of US states, do not.
In the United States, common-law marriage has existed since colonial times, when America was a colony of England. However, today, only a handful of states, including Colorado, Iowa, and Rhode Island, fully recognise common-law marriage. Several other states recognise it with restrictions, while many others, such as Alabama and Georgia, no longer recognise it at all. Despite this, due to the full faith and credit clause in the US Constitution, a state that does not have common-law marriage must recognise common-law marriages from other states.
In the UK, the term "common-law marriage" is often used to describe cohabiting couples who live together without getting married or entering a civil partnership. However, this term is not legally recognised, and cohabiting partners do not enjoy the same legal rights as married couples or those in a civil partnership. For example, cohabiting partners do not have automatic rights to each other's property or assets if their relationship ends, and they are not entitled to their partner's state pension or certain tax benefits.
Similarly, in Australia, the term "de facto relationship" is often used to describe unmarried couples living together, and while these relationships are recognised in the Family Law Act (Commonwealth), they are not federally recognised outside of Australia. In Ireland, while common-law marriage is not recognised, the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (in force between 2010 and 2015) granted some rights to unmarried cohabitants.
Overall, while the concept of common-law marriage or partnership may be socially recognised and used in everyday language, it does not have legal recognition in many places. This lack of recognition can lead to complex legal issues and confusion regarding rights and settlements, especially when a relationship ends.
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Common-law partners may have some rights
The term “common-law marriage” refers to an informal marriage where a couple agrees to consider themselves married and cohabits without a statutory process, such as a wedding ceremony or marriage license. While common-law marriages are not recognized in many places, including Australia, Canada, Ireland, the UK, and some states in the US, cohabiting partners may still have limited rights and protections in certain situations. Here are some examples of rights that common-law partners may have:
Financial Assistance and Inheritance
In some cases, common-law partners may be able to claim financial assistance or reasonable provision for their maintenance if they are not included in their deceased partner's will. However, there is no legal right for cohabiting partners to inherit their partner's estate, and they are generally not entitled to their partner's state pension or occupational pension upon separation.
Child-Related Rights
Mothers automatically have parental responsibility for a child at birth, while unmarried fathers do not. For unmarried fathers to obtain parental responsibility, they typically need to be registered on the birth certificate with the mother's consent.
Tax and Benefit Considerations
Cohabiting couples may be considered “unconnected individuals” by tax authorities, impacting their ability to claim certain tax reliefs and entitlements. However, they may be able to access means-tested benefits as a family unit.
Property and Asset Disputes
When a cohabiting relationship ends, common-law partners do not automatically have legal rights to each other's property. However, in the event of a dispute, a judge may consider evidence and make a determination. Mediation and legal assistance can also help establish respective interests and reach a settlement.
It's important to note that the rights and protections available to common-law partners can vary depending on the specific jurisdiction and individual circumstances. While common-law marriages may not provide the same legal framework as civil or religious marriages, there are often mechanisms, such as cohabitation agreements, that can help clarify and protect the rights of cohabiting partners.
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Common-law marriage is a type of informal marriage
The term "common-law marriage" refers to a type of informal marriage between two individuals who live together and agree to consider themselves married without legally registering their union or undergoing a formal ceremony. While it is often associated with cohabiting couples, common-law marriage has a specific legal meaning in certain jurisdictions.
In family law, a common-law marriage is a legally recognised informal marriage. This means that the couple has never had a formal wedding ceremony, obtained a marriage license, or received a marriage certificate. Despite this, in states that acknowledge common-law marriages, couples in such arrangements may enjoy the same rights as those who have undergone a formal marriage process.
To establish a common-law marriage, certain requirements must generally be met. These include cohabitation for a period of time, although there is no statutory minimum duration. The court considers each case individually, and the longer the couple lives together, the stronger their case for common-law marriage. Both partners must have the legal capacity to marry, be at least 18 years old, and not already be married to others. They must also demonstrate intent to be married and hold themselves out as a married couple to their community.
Not all jurisdictions recognise common-law marriages, but they will typically respect the validity of such marriages lawfully entered into in other states or countries. In the United States, common-law marriages are currently recognised in a limited number of states, including Colorado, Iowa, and Rhode Island. While England and Wales previously had common-law marriages, the Clandestine Marriages Act of 1753 ended this practice, requiring marriages to be performed by the Church of England.
It is important to note that common-law marriage should not be confused with the term "common-law partner," which refers to someone in a long-term relationship who cohabits with their partner. Common-law partners do not have the same legal rights as married spouses or those in civil partnerships, and determining their rights during separation can be complex and time-consuming, often requiring legal assistance.
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Common-law marriage is not recognised in some countries
The term "common-law marriage" refers to an interpersonal relationship that is considered valid by both partners but is not formally recorded with a state or religious registry and is not celebrated in a formal civil or religious ceremony. While common-law marriage is recognised in some countries, such as certain states in the US, it is not recognised in others, including Australia, France, Ireland, and Kuwait.
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. While de facto relationships are recognised in the Family Law Act (Commonwealth) and may be treated similarly to marriages in certain contexts, they are not considered legally married. Similarly, in Canada, while couples in marriage-like relationships may be granted many of the rights and responsibilities of a marriage, they are not legally considered married and are instead defined as "unmarried spouses."
In Ireland, common-law marriage is not recognised, but the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 granted some rights to unmarried cohabitants. Following the Marriage Act 2015, which legalised same-sex marriage, civil partnerships are no longer available in Ireland. In France, while common-law marriage is not an option, couples can choose between two types of contracts for the division of property, and the introduction of civil unions has led to more couple formation.
In England, Wales, and Scotland, the term "common-law marriage" is sometimes used to refer to unmarried, cohabiting heterosexual couples. However, this is merely a social usage, and these couples do not have the same rights or obligations as legally married spouses or civil partners. While a 2008 poll in the UK showed that 51% of respondents incorrectly believed that cohabitants had the same rights as married couples, the law treats cohabiting relationships differently, and the breakdown of such relationships is governed by property law rather than family law.
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Common-law girlfriend is a colloquial term
The term "common-law marriage" is often used colloquially to refer to a couple who lives together and holds themselves out publicly as a married couple without legally registering their union with the state. While the term is commonly used to describe such relationships, it does not confer any of the rights or obligations associated with legal marriage or civil partnerships. The term "common-law girlfriend," similarly, is a colloquial term used to describe a couple who have been together for an extended period but do not acknowledge their relationship publicly.
In family law, a common-law marriage is a legal marriage that is recognised by the state without the need for a formal wedding ceremony, marriage license, or marriage certificate. In other words, it is a marriage established without legal formalities. Common-law marriages are currently recognised in a few states in the US and the District of Columbia, as well as in some other countries with certain restrictions. For example, in Canada, while some provinces may extend to common-law couples many of the rights and responsibilities of a marriage, they are not legally considered married.
The basic features of a common-law marriage are that the couple intends to be married, acts on that intention by living together and holding themselves out publicly as a married couple, and meets the basic requirements under state law for a legal common-law marriage. These requirements may include the legal right or "capacity" to marry, which usually means both partners must be at least 18 years old, of sound mind, and not already married to other people.
While the term "common-law girlfriend" is used colloquially to describe a long-term, unacknowledged relationship, it is important to note that this term does not confer any legal rights or obligations on the couple. The legal rights and obligations of couples depend on whether they are married or living together, and are not determined by colloquial terms or social usage.
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Frequently asked questions
The term "common-law girlfriend" is used to describe a relationship where two people have been together for an extended period of time without officially acknowledging the relationship. This term is not legally recognised and does not confer any rights or obligations associated with a legally recognised marriage.
A common-law marriage is a legal marriage that is not formally recorded or celebrated in a civil or religious ceremony. It is a marriage based on an agreement between two people to consider themselves married and to organise their relationship as such.
Yes, there are certain requirements that must be met for a common-law marriage to be recognised. These include living together, holding themselves out publicly as a married couple, having the legal capacity to marry, and intending to be married.
Common-law marriage is recognised in varying degrees across the United States. Some states, such as Colorado, Kansas, Montana, and Texas, fully recognise common-law marriage. Other states may recognise common-law marriages established before a certain date or for limited purposes.
In states that recognise common-law marriage, couples may enjoy similar rights and benefits as legally married spouses, including inheritance rights, estate planning benefits, and the duty to support each other and protect marital property. However, it is important to note that the specific rights and obligations may vary depending on state laws and regulations.
