Keith Mack
A common-law spouse is a term often used to describe a couple in a long-term cohabiting relationship, who have not purchased a marriage license or engaged in a formal marriage ceremony. Despite common misconceptions, common-law marriage is not a legally recognized term in most places, and these couples are not considered legally married. However, in certain jurisdictions, such as nine states in the US and the District of Columbia, common-law marriages are recognized and confer most of the rights and benefits of a legally married couple. The requirements for a common-law marriage vary but generally include factors such as cohabitation, intent to be married, and holding themselves out as a married couple in public.
Characteristics of a Common-Law Spouse
| Characteristics | Values |
|---|---|
| Legal Recognition | Common-law marriages are legally recognised in some US states, but not all. They are not recognised in England, Wales, or Northern Ireland. |
| Marriage License | Common-law spouses do not need a marriage license or a formal ceremony. |
| Legal Rights | Common-law spouses are eligible for many of the same legal rights as married couples, including financial and tax benefits, medical benefits, and inheritance rights. |
| Cohabitation | Common-law spouses typically live together, although there is no statutory requirement for the length of time. |
| Legal Capacity | Both spouses must have the legal capacity to marry, be at least 18 years old, and not already be married. |
| Intent | Both spouses must intend to be married and hold themselves out as a married couple to friends, family, and the public. |
| Separation | Common-law marriages can be legally ended by divorce, and assets are decided by property law. |
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What You'll Learn
Common-law marriage requirements
The requirements for a common-law marriage vary depending on the state or country. In the US, common-law marriage has existed since colonial times, and it is still recognised in some states. These include Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia. While the specific requirements differ, some general common-law marriage requirements include:
Living together
Cohabitation is often associated with common-law marriage, and while living together is a requirement in some states, there is no statutory requirement for the length of time a couple needs to live together. The court considers the amount of time a couple lives together on a case-by-case basis. Generally, the longer a couple lives together, the stronger their case is for common-law marriage.
Legal right or "capacity" to marry
Both partners must have the legal capacity to marry. This typically means that they must be at least 18 years old, of sound mind, and not already married to other people.
Intent
Both partners must intend to be married and hold themselves out as a married couple to friends, family, and the public. This can include referring to each other in public as "partner", "spouse", or "husband" and "wife".
Same-sex marriage
Same-sex couples can enter into a common-law marriage in states that recognise common-law marriage and same-sex marriage. Since the Obergefell v. Hodges Supreme Court decision in 2015, same-sex marriage has been legalised across the US, and same-sex common-law marriages are recognised in Texas.
It is important to note that the requirements for common-law marriage vary by state, and some states may have additional or more specific requirements. If you are considering a common-law marriage, it is essential to consult an experienced family law attorney in your state to understand the specific requirements and your rights.
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Cohabitation and common-law marriage
In the United States, common-law marriage is currently recognized in nine states and the District of Columbia. These states are Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and New Hampshire. Each jurisdiction has its own specific requirements for common-law marriage, but there are some general requirements across the board. For instance, both parties must be at least 18 years old, be of sound mind, and not already be married to other people. The couple must also intend to be married and hold themselves out to friends, family, and the public as a married couple. This can include referring to each other as "spouse," "husband," or "wife" in public, sharing a last name, or co-owning assets.
The length of time a couple lives together is not a statutory requirement for common-law marriage, but it is an important factor. The longer a couple lives together, the stronger their case is for common-law marriage. Additionally, common-law marriages are just as valid and legally binding as formalized marriages. As such, they can only be legally ended by divorce and common-law spouses are eligible for most of the financial benefits of a married couple, including tax benefits, medical benefits, and Social Security benefits.
In England, Wales, and Northern Ireland, the term "common-law marriage" is used to refer to unmarried, cohabiting heterosexual couples. However, this is merely a social usage that does not confer any legal rights or obligations on the couple. While unmarried partners may be recognized for certain purposes in legislation, such as means-tested benefits, they do not have the same rights as married spouses or civil partners.
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Common-law marriage in England and Wales
The term “common-law marriage” is often used to describe cohabitation or other legally formalized relationships between unmarried, cohabiting heterosexual couples. However, in England and Wales, common-law marriage is not legally recognised and does not confer any rights or obligations associated with civil or religious marriages. While English legal texts initially referred to American common-law marriages, the term evolved in the 1960s to denote unmarried, cohabiting heterosexual relationships. This social usage may have led cohabiting couples to mistakenly believe they had certain legal rights, fuelling an increase in couples living together without legal marriage.
Historically, common-law marriage in England dates back to medieval times when a man and a woman could be considered married simply by agreeing to be husband and wife. This arrangement was recognised by the community and the Catholic Church, which was the official church at the time. However, under the influence of Pope Innocent III, the church mandated that marriages be conducted by a priest. This led to the tradition of "handfasting," where couples exchanged legally binding vows, sometimes accompanied by a symbolic knot. Over time, additional requirements were introduced, including the presence of witnesses.
In England and Wales, the concept of common-law marriage was effectively abolished by the Marriage Act of 1753, also known as Lord Hardwicke's Marriage Act. This Act aimed to suppress clandestine marriages by imposing stricter conditions for validity. From then on, only marriages performed by the Church of England, Quakers, or under Jewish law were recognised. While civil marriage was reintroduced in 1836, common-law marriage has not regained legal recognition in England and Wales.
Today, marriage in England and Wales is available to both opposite-sex and same-sex couples and is legally recognised through civil or religious ceremonies. These marriages are subject to various requirements, including the legal minimum age of 18 and the presence of witnesses. While cohabiting couples may be recognised for certain purposes, such as means-tested benefits, they do not possess the same rights as married spouses in areas like separation, asset distribution, or death. Therefore, it is essential for cohabiting couples to carefully consider their legal rights and explore options like wills and beneficiary designations to protect their interests.
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Common-law marriage in the US
A common-law marriage is an informal marriage where couples do not have a marriage license, marriage ceremony, or marriage certificate. Common-law marriage is not recognized in most US states, but a handful of states still contract common-law marriages, including Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia.
Common-law marriage can be difficult to prove. It is not enough for a couple to have lived together for several years, but they must have been generally regarded as husband and wife. Their friends and neighbors, for example, must have known them as Mr. and Mrs. So-and-so. Both partners must have the legal capacity to marry, which usually means they must be at least 18 years old, of sound mind, and not already married to other people.
All US jurisdictions recognize common-law marriages that were validly contracted in the originating jurisdiction, although the extent to which the US Constitution requires interstate marriage recognition has not been fully articulated by the Supreme Court. However, absent legal registration or similar notice of the marriage, the parties to a common-law marriage may have difficulty proving their relationship. Some states provide for registration of an informal or common-law marriage based on the declaration of each of the spouses on a state-issued form.
Common-law marriage typically matters most upon a death or separation. If one partner dies, it will become important to know if the surviving partner is eligible for the same benefits as if the two were married. Similarly, if a couple separates, they may feel entitled to split assets the same way married couples do.
Some states have abolished common-law marriage but still recognize common-law marriages if they began before a certain date or for a specific purpose. These include Alabama, Florida, Georgia, Indiana, Ohio, and Pennsylvania.
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Common-law marriage benefits
The term "common-law spouse" refers to a couple that has lived together for an extended period and is seen as legally married, even without a marriage license or ceremony. Common-law marriages are only recognized in certain states and jurisdictions, and the requirements vary. For example, in Colorado, couples must live together openly and show a shared intention to be viewed as married. In Iowa, couples must cohabit and publicly present themselves as married.
The benefits of common-law marriage include:
- Tax benefits: Common-law spouses are exempt from the gift tax for gifts to each other, can claim deductions for mortgage interest if they co-own a house or have children, and enjoy unlimited marital exemptions for their estate up to the federal estate tax limit.
- Medical benefits: Couples can combine health insurance policies, reducing the amount paid in monthly premiums.
- Social Security: Common-law spouses can receive spousal Social Security benefits if they can prove the number of years they lived together in a common-law state.
- Inheritance: Common-law spouses can inherit each other's property with a valid will.
- Equal marital rights: Common-law marriages are granted the same rights and responsibilities as formal marriages, including for taxes and financial claims.
However, it is important to note that common-law marriages can be difficult to prove. Both partners must intend to be married and hold themselves out as a married couple to friends, family, and the public. Additionally, if one partner denies the existence of the marriage or dies without a will, the other may be left vulnerable and without entitlements.
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Frequently asked questions
A common-law spouse is a partner in a common-law marriage. Common-law marriage is a legally recognised marriage between two people who haven't purchased a marriage license or had a ceremony officiated by a licensed marriage officiant. Common-law spouses who meet their state's requirements are eligible for most of the financial benefits of a married couple.
Common-law marriage is recognised in nine states and the District of Columbia in the United States. These states are Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and New Hampshire.
The requirements for a common-law marriage vary by state, but generally, both partners must have the legal right to marry, intend to be married, and behave as a married couple. In some states, there are age requirements, and in others, there are requirements around financial interdependence and cohabitation.
