Cecily Zamora
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 who intend to be married and are legally capable of being 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 marriage license or a formal ceremony. The origins of common-law marriage are uncertain, but it has been gradually abolished in Western nation states over the centuries. For example, England abolished common-law marriage in the Marriage Act of 1753, and California abolished it in 1895. Common-law marriage has also been abolished in 28 US states, and only nine states continue to recognize common-law marriages. The reasons for the abolition of common-law marriage include the increase in population between the Civil War and the end of World War I, the decline in the necessity of common-law marriage, and the increasing societal acceptance of cohabitation without marriage.
| Characteristics | Values |
|---|---|
| Common-law marriage definition | A marriage that results from the parties' agreement to consider themselves married, followed by cohabitation, rather than through a statutorily defined process |
| Common-law marriage recognition | Not all jurisdictions permit common-law marriage, but will typically respect the validity of such a marriage lawfully entered in another state or country |
| Common-law marriage requirements | Both partners must intend to establish a common-law marriage, be eligible to be married, and hold themselves out in public as a married couple |
| Common-law marriage evidence | Casual reference to each other as husband and wife, the wife taking the husband's last name, jointly filed tax returns, joint bank accounts, or testimony given by friends and family |
| Common-law marriage abolition reasons | Inefficient, confusing, and can produce costly litigation in the event of a divorce |
| Common-law marriage abolition dates | England (1753), Alabama (2017), Pennsylvania (2005), Massachusetts (including Maine) (before 1820), Hawaii (before 1898), Maine (1652), South Carolina (2019), Rhode Island (2018), California (1895) |
| Common-law marriage current status | Abolished in most states in the U.S. through laws or court decisions; still recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia |
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What You'll Learn
Common-law marriage was never recognised in some US states
Common-law marriage, also known as non-ceremonial marriage, is a partnership in which each partner has the "capacity to be married", is not currently married, is of a certain age, and is of sound mind. The couple must also have the intention to marry, and hold themselves out as married to their community. Common-law marriage has been gradually abolished in Western nation states over the centuries, and most U.S. states have now abolished it by statute.
As of 2020, there were eight states that recognized common-law marriage, including Colorado, Iowa, Kansas, Montana, Texas, and Utah. Washington, D.C., also recognizes common-law marriage, although it is not a state. However, several other states have abolished it in recent years, including Alabama, which abolished it in 2017, and Pennsylvania, which abolished it in 2005.
The common-law system of marriage is being abolished because it is inefficient, confusing, and can lead to costly litigation in the event of a divorce. The process of obtaining a marriage license is now relatively inexpensive and straightforward, so the merits of common-law marriage are less relevant. In addition, the legalization of gay marriage has also contributed to the abolition of common-law marriage in some states, as it allowed people to be married and protected by marriage rights simply from living together and presenting themselves as married.
Some states that have abolished common-law marriage will still recognize marriages that were contracted before the date of abolition. For example, Alabama still recognizes common-law marriages that were entered into before January 1, 2017. Similarly, Pennsylvania will recognize common-law marriages that were contracted before January 1, 2005, and Ohio will recognize marriages that were entered into before October 10, 1991.
The situation in Oklahoma is less clear, with legal scholars reporting various dates for the abolition of common-law marriage in the state. However, as of August 2022, some state entities continue to represent common-law marriage as legal.
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Abolished by statute in most US states
Common-law marriage has been abolished by statute in most US states due to its inefficiency, the confusion it creates, and the costly litigation that may arise in the event of a divorce. The system creates a great deal of uncertainty and can be expensive when determining the status of a couple.
The recognition of common-law marriage has been gradually phased out in Western nation states over the centuries. In the US, Alabama abolished common-law marriage in 2016, with existing marriages still being recognized. Common-law marriages in Alabama entered into before January 1, 2017, are considered valid.
Other states that have abolished common-law marriage include Pennsylvania (2005), Florida (1968), Georgia (1997), Indiana (1958), and Ohio (1991). These states continue to recognize common-law marriages that were established before the date of abolition.
As of 2023, only 11 US states recognize common-law marriage, including Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, and the District of Columbia. The situation in Oklahoma is unclear, with conflicting information from various sources.
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The Catholic Church forbade clandestine marriage in 1215
The Fourth Lateran Council's decree was only enforced in regions where it could be proclaimed in the local language. This meant that clandestine marriages could still take place in regions where Latin was the only language of the Church.
The Fourth Lateran Council's ruling was further strengthened by the Council of Trent (1545-1563), which introduced more specific requirements. The Council of Trent ruled that future marriages would only be considered valid if witnessed by the pastor of the parish or the local ordinary (the bishop of the diocese), or by the delegate of one of these witnesses. The marriage would be considered invalid otherwise, even if witnessed by a Catholic priest.
The Tridentine canons did not apply to Protestants or the Eastern Orthodox. However, clandestine marriages were impossible for the Eastern Orthodox as their validity required the presence of a priest.
The Catholic Church's involvement in marriage can be traced back to the Middle Ages. Over time, the Church's position on marriage evolved, with various church councils and decrees shaping the rules and requirements for marriage among Catholics.
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Abolished in England and Wales before Massachusetts
In England and Wales, the term "common-law marriage" has been used to refer to unmarried, cohabiting heterosexual couples. However, this is merely a social usage, and it does not confer any legal rights or obligations on the cohabiting parties. While English law does recognise "common-law marriage", the term initially referred exclusively to American common-law marriages. It was only in the 1960s that the term began to be used in its contemporary sense, and it was not until the 1970s and 1980s that it lost its negative connotations.
In England, common-law or clandestine marriages were abolished in the Marriage Act of 1753, which required marriages to be performed by a priest of the Church of England unless the participants were Jews or Quakers. This Act also applied to Wales. However, Scotland, which retained its own legal system, did not abolish common-law marriage until 2006 with the Family Law (Scotland) Act. This Act abolished "marriage by cohabitation with habit and repute", which was a form of irregular marriage.
In Massachusetts, common-law marriage is not recognised, as stated in Collins v. Guggenheim, 417 Mass. 615 (1994): "Cohabitation in Massachusetts does not create the relationship of husband and wife in the absence of a formal solemnization of marriage." However, in a blog post from Lynch & Owens P.C., it is noted that "common law marriage is not legal in Massachusetts – except when it is". This indicates that there may be certain circumstances where common-law marriage is recognised in the state, particularly in divorce and inheritance cases involving out-of-state marriages.
The common-law system of marriage is being abolished in various states and countries due to its inefficiency, confusion, and potential for costly litigation in divorce cases. It creates uncertainty and can be expensive to determine the status of a couple, especially with the many variables of proof.
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Abolished in Scotland in 2006
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that results from the parties' agreement to consider themselves married, followed by cohabitation, rather than through a statutorily defined process. It is considered the original form of marriage, where a couple took up residency together, held themselves out to the world as a married couple, and otherwise behaved as a married couple.
In Scotland, common-law marriage did not exist, although there was a type of irregular marriage called "marriage by cohabitation with habit and repute" or MCHR, which could apply to couples in special circumstances until 2006. This form of irregular marriage was abolished by the Family Law (Scotland) Act 2006, which came into force on 4 May 2006, with irregular marriages established before this date still recognised.
The move to abolish common-law marriage in Scotland was driven by several factors. Firstly, it was seen as inefficient, confusing, and costly, especially in the event of divorce or legal separation. Secondly, it created uncertainty regarding the status of couples, with many variables of proof required to establish a common-law marriage. Additionally, the Scottish Executive's decision to abolish MCHR aimed to address concerns raised in cases such as Ackerman and Sheikh, where financial provision during separation or death became a key issue. The current Family Law (Scotland) Act provides for discretionary awards of financial provision to former cohabitants, removing the need to establish a marriage for financial protection.
Prior to the abolition of common-law marriage in Scotland in 2006, there were several forms of irregular marriage recognised under Scots law. These included irregular marriage by declaration de praesenti, where a couple declared in the presence of two witnesses that they took each other as husband and wife. Another form was marriage by promise followed by intercourse, where a public promise was made and then consummated. These first two forms of irregular marriage were abolished by the Marriage (Scotland) Act 1939, which came into force on 1 July 1940.
The abolition of common-law marriage in Scotland brought it in line with other Western nations that had gradually abolished this practice over the centuries.
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Frequently asked questions
A common-law marriage is a partnership in which each partner is not currently married, must be 19 or older, must be of sound mind, and must have the intent to marry. The couple must also hold themselves out as married to their community.
Common-law marriages are being abolished because they are inefficient, confusing, and can lead to costly litigation in the event of a divorce. The system creates uncertainty and can be expensive when determining the status of a couple.
England abolished clandestine or common-law marriages in the Marriage Act of 1753, requiring marriages to be performed by a priest of the Church of England.
Many US states have abolished common-law marriage, including Alabama, Florida, Hawaii, Massachusetts, Maine, Pennsylvania, and Ohio.
Some US states that still recognize common-law marriage include Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia.
