Gavin Howe
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a legally recognised union in which a couple agrees to consider themselves married, followed by cohabitation, without the prerequisites of a marriage license or participation in a marriage ceremony. Common-law marriage originated in colonial America, where it was challenging to find a qualified cleric or wedding officiant. While it is now only recognised in a handful of states, a common-law marriage that meets state requirements is legally binding and valid. The requirements for common-law marriage vary, but generally include the intention to be married, cohabitation, and holding themselves out to friends, family, and the public as a married couple.
| Characteristics | Values |
|---|---|
| Legal recognition | Common-law marriage is legally recognised in a minority of states in the US, including Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, Utah, and the District of Columbia. Other states may recognise common-law marriages from other states. |
| Prerequisites | No marriage license or ceremony is required. |
| Cohabitation | Couples must live together for a significant period, with no statutory requirement for the length of time. The longer the cohabitation, the stronger the case for common-law marriage. |
| Legal capacity to marry | Both partners must be of marriageable age, be legally free to marry, and be of sound mind. |
| Intent | Both partners must intend to be married and hold themselves out as married to their community. |
| Rights | In states that allow common-law marriage, couples may have the same rights as formally married couples. |
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What You'll Learn
Common-law marriage requirements
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 had a marriage ceremony. Common-law marriage requirements vary depending on the state or country, and not all jurisdictions permit it.
In the United States, common-law marriage has existed since colonial times, and it is currently recognised in seven states and the District of Columbia. These include Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, and Utah.
While the specific requirements vary by state, some general common-law marriage requirements include:
- Legal capacity to marry: Both partners must have the legal right to marry, which typically means being at least 18 years old, of sound mind, and not already married.
- Cohabitation: The couple must live together, with no specified time requirement, although longer cohabitation periods generally strengthen the case for common-law marriage.
- Intent to be married: Both partners must intend to be married and hold themselves out as a married couple to friends, family, and the public.
- Representation as a married couple: The couple must represent themselves as married and organise their relationship as if they were married.
In some states, like Texas, same-sex couples can enter into a common-law marriage. While Texas does not require a specific time length for a common-law marriage, couples can register their union by filing a declaration with the county clerk.
It is important to note that the term "common-law marriage" is often used colloquially to describe cohabiting couples, which can create confusion regarding the legal rights of unmarried partners.
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Common-law marriage misconceptions
Common-law marriage, also known as non-ceremonial marriage, is a marriage that takes legal effect without the need for a marriage license or a ceremony. It occurs when two people who are legally capable of being married and intend to be married, live together as a married couple and present themselves as such.
Despite its colloquial use, very few states recognize common-law marriages. Common-law marriage is not a valid form of marriage in most states and does not carry any legal rights. The most common misconception is that living with someone for seven years or an arbitrary time frame creates a common-law marriage. However, this is not true. Common-law marriage requires more specific circumstances, such as exchanging words of intent to be married and holding themselves out as husband and wife to others.
Another misconception is that common-law marriage is a nationwide concept. In reality, it exists only in a small number of states, and the guidelines for legal designation vary across states. For example, in New Hampshire, common-law marriages are very rarely recognized and are typically only acknowledged when determining inheritance after one party's death.
Furthermore, it is important to note that cohabitation does not automatically grant common-law marriage status. The couple must meet all the requirements, including the intention to be married and holding themselves out publicly as a married couple. Both parties must agree to be considered married, and it is the legal system that ultimately decides if a common-law marriage exists.
Lastly, while common-law marriage may be recognized in some states, it does not always confer the same rights as a legal marriage. For example, in Canada, couples in marriage-like relationships may be granted many of the rights and responsibilities of a marriage, but they are not legally considered married. They may be defined as "unmarried spouses" and treated similarly to married spouses for specific purposes, such as taxes and financial claims.
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Common-law marriage in the US
In the United States, a common-law marriage is an informal marriage that does not require a marriage license, ceremony, or certificate. Instead, it is a marriage that occurs when two legally capable individuals agree to be married, live together as a married couple, and present themselves to the world as a married couple. The original concept of a "common-law" marriage is one that is considered valid by both partners but is not formally recorded with a state or religious registry.
The term "common-law marriage" is often used colloquially to refer to cohabiting couples, regardless of their legal rights or religious implications. This has created confusion around the term and the legal rights of unmarried partners. Despite its colloquial use, only a handful of states in the US recognize common-law marriages, and the requirements for such a marriage vary widely from state to state. These states include Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, Utah, and the District of Columbia.
Some states have abolished common-law marriage but still recognize such marriages if they began before a certain date or for a specific purpose. For example, Alabama, Florida, Georgia, Indiana, Ohio, and Pennsylvania recognize common-law marriages that were created before a certain date. On the other hand, states like California and New Hampshire do not contract common-law marriages within their state but will recognize such unions if they were contracted in a different state.
Common-law marriage typically becomes significant upon the death or separation of a couple. In the case of death, it is important to determine if the surviving partner is eligible for the same benefits as if the couple were legally married. Similarly, if a couple separates, they may feel entitled to split their assets as a married couple would.
Preferred evidence of a common-law marriage includes signed statements from both spouses and two blood relatives if both spouses are alive. If one spouse is deceased, then signed statements from the surviving spouse and two blood relatives of the deceased are required. If both spouses are deceased, signed statements from one blood relative of each spouse are needed. These statements should explain why the signer believes the couple was married.
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Common-law marriage in India
In India, common-law marriage, also known as a "relationship in the nature of marriage", is not legally recognised as a valid form of marriage. However, in 2015, the Supreme Court of India ruled that if an unmarried couple lives together as husband and wife, they would be presumed to be legally married. This means that the woman would be eligible to inherit her partner's property after his death, and the couple's children would be considered legitimate.
The Supreme Court's decision was based on the concept of community recognition, which states that a marriage is qualified as such when the couple is considered married by society. This concept was also prevalent in medieval Europe, where marriage was under the jurisdiction of canon law, which recognised as valid a marriage in which the parties stated they took each other as husband and wife, even without witnesses.
In India, the Domestic Violence Act of 2005 and Section 125 of the Criminal Code afford rights and protections to women in "relationships in the nature of marriage", including alimony, allowances, shelter, protection in cases of abuse, right to live in her partner's house, and child custody. The Hindu Marriage Act also stipulates that children born out of wedlock, including live-in relationships, are treated as legitimate in terms of inheritance.
While the term "common-law marriage" is often used colloquially to refer to cohabiting couples, it is important to note that it has a specific legal definition that varies across different jurisdictions. In some states, such as New Hampshire, common-law marriages are very rarely recognised and are typically only considered when determining inheritance after one party's death. In other states, such as Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, Texas, Utah, and the District of Columbia, common-law marriages are recognised to some extent.
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Common-law marriage and equitable distribution
Common-law marriage, also known as non-ceremonial marriage, is a marriage that occurs outside of a statutorily defined process. In other words, it is a marriage that takes legal effect without a marriage license or ceremony. For a common-law marriage to be valid, the couple must be of marriageable age, not already married, and must live together for a \"significant\" period, holding themselves out as a married couple to the world.
Common-law marriage is not recognized in most U.S. states, and even in states where it is recognized, such as Colorado, Iowa, and Texas, it is rare and requires specific circumstances. However, while most states will not contract common-law marriages within their jurisdiction, they will typically recognize these unions if they are contracted in a state that does.
Now, regarding equitable distribution, this is a legal theory that guides how property acquired during a marriage should be distributed between the spouses in the event of a divorce. Equitable distribution is the more common system of property division, used in 41 out of 50 states. In these states, the court considers an individual's assets to be their own personal property unless the couple has decided to share them. In the event of a divorce, the court will put the shared assets into a common pot and distribute them in a fair but not necessarily equal manner.
In contrast, community property states, of which there are nine, tend to divide property equally during divorce, considering assets from earnings to be jointly held. These states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
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Frequently asked questions
Common-law marriage, also known as non-ceremonial marriage, is a marriage that occurs when two people who are legally capable of being married and who intend to be married, live together as a married couple and hold themselves out to the world as a married couple. Common-law marriage does not require a civil or religious ceremony, nor does it require a marriage license.
No, common-law marriage is only recognised in seven states and the District of Columbia. Most states do not legally recognise common-law marriages at all.
Equitable common-law marriage is a term used to describe the division of assets and property in a common-law marriage when the couple separates or one partner dies.
In common-law marriages, only marital property is subject to equitable distribution. Marital property is property acquired during the marriage, including separate property that has increased in value due to the efforts of either or both spouses. Equitable distribution considers the financial position of each party post-divorce, with courts trying to achieve a fair allocation of property based on a list of factors or guidelines set forth by state law.
Some factors that a court may consider include the duration of the marriage, the value of the marital property, each spouse's contribution to the marital property, the spouses' respective sources of income or earning capacities, and the economic circumstances of each spouse upon the division of property. In some states, the cause of the divorce, including marital misconduct such as adultery, may also be considered.
