Keith Mack
A civil union, also known as a civil partnership, is a legally recognised arrangement similar to marriage that provides state-level legal protections. Civil unions were created to provide legal recognition for same-sex couples, although they do not offer all the same rights as marriage, with child adoption being a common exception. Common-law marriage, on the other hand, is a marriage that takes legal effect without the prerequisites of a marriage license or ceremony. It occurs when two legally capable people who intend to be married live together as a married couple and present themselves as such. Common-law marriage is not recognised in all jurisdictions, but those that do not permit it will typically respect the validity of such a marriage lawfully entered in another state or country.
| Characteristics | Common Law Marriage | Civil Union |
|---|---|---|
| Legal Recognition | Common law marriage is recognized in a few states in the US and some other countries, it is automatically established after a couple has lived together for a specific period of time. | Civil unions are legally recognized in several countries and some US states, providing legal recognition for same-sex couples, offering similar benefits as marriage. |
| Requirements | Live together in a state that recognizes common law marriage; hold yourself out as married to the public (e.g., using the same last name, referring to each other as husband and wife); intend to be married. | Vary by jurisdiction but generally include a formal registration process, a written agreement, and may require a ceremony. |
| Benefits | Same legal rights as traditionally married couples regarding property ownership, inheritance, and financial responsibilities. | Similar benefits to marriage regarding healthcare decision-making, tax advantages, social security benefits, and child custody/adoption rights. |
| Termination | Can be difficult to prove, especially if the relationship was short-lived or there is no substantial evidence of a marriage-like relationship. | Usually requires a legal process similar to divorce, with property division and other aspects handled according to the laws of the jurisdiction. |
| Recognition | May be recognized in other states, depending on their laws, but may not be recognized federally or in all countries. | May not be recognized in all countries, and recognition may vary depending on the laws of the specific jurisdiction. |
| Same-Sex Couples | Not an option for same-sex couples as it is a path to legal marriage recognition for opposite-sex couples who live together. | Specifically designed to provide legal recognition for same-sex couples, offering many of the same benefits as marriage. |
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What You'll Learn
- Common-law marriage is a social usage term for unmarried, cohabiting heterosexual couples
- Common-law marriage is a legally recognised union in some US states, but not all
- Civil unions are legally recognised partnerships between two individuals, regardless of gender
- Civil unions are recognised at the state level, not the federal level
- Civil unions were originally created to offer legal protections to same-sex couples
Common-law marriage is a social usage term for unmarried, cohabiting heterosexual couples
The term "common-law marriage" is often used incorrectly to describe various types of unmarried couple relationships, such as cohabitation. While these interpersonal relationships are often called "common-law marriages", they are not legally recognised as marriages and may be considered a "domestic partnership", "civil union", or "unmarried spouses" depending on the jurisdiction.
In England and Wales, for example, the term "common-law marriage" is used to refer to unmarried, cohabiting heterosexual couples. However, this is merely a social usage and does not confer any of the rights or obligations enjoyed by spouses or civil partners. Similarly, in Scotland, common-law marriage does not exist, although there was a type of irregular marriage called 'marriage by cohabitation with habit and repute' until 2006. In Canada, while some provinces may extend to unmarried couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married and may be defined as "unmarried spouses".
In the United States, common-law marriage is recognised in only a few states, including Colorado, Iowa, Kansas, Montana, South Carolina, Texas, Utah, and Rhode Island. In these states, a common-law marriage is achieved by an agreement to be married, living together as spouses, and presenting themselves as a married couple to the public, without obtaining a marriage license or participating in a marriage ceremony. It is important to note that the requirements for common-law marriage may vary by state, and not all states recognise it.
On the other hand, a civil union is a legal status that is similar to marriage and provides many of the same rights, benefits, and protections as marriage under state law. Civil unions were originally created to offer legal protections to same-sex couples before the legalisation of same-sex marriage. While civil unions are not recognised at the federal level in the United States, they are still recognised in some states, including Colorado, Hawaii, Illinois, and New Jersey. Couples in a civil union must apply for a license, similar to a traditional marriage, and enjoy rights such as inheritance rights, health care rights, and hospital visitation rights.
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Common-law marriage is a legally recognised union in some US states, but not all
The term "common-law marriage" is often misused and misunderstood in the United States. It is sometimes used to describe cohabiting couples or those who have lived together for more than seven years. However, a common-law marriage is a legally recognised union in some US states, but not all.
A common-law marriage is achieved by an agreement to be married, living together as spouses, and presenting as a married couple to the public, without obtaining a marriage license or having a marriage ceremony. Common-law marriages are currently recognised in Colorado, Iowa, Kansas, Montana, South Carolina, Texas, Utah, and Rhode Island. Five other states also recognise common-law marriages within specific time limitations.
Civil unions, on the other hand, are legally recognised partnerships between two individuals that offer many of the same legal protections and benefits as marriage under state law. They were originally created to provide legal protections for same-sex couples before the legalisation of same-sex marriage. While civil unions are not recognised at the federal level, they are currently recognised in Colorado, Hawaii, Illinois, and New Jersey.
Both common-law marriages and civil unions are considered legally valid in the states that recognise them, and dissolving these unions requires an official divorce proceeding. Couples in these unions should consult with a family law attorney to understand their specific rights and obligations, as well as the implications of moving to a different state.
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Civil unions are legally recognised partnerships between two individuals, regardless of gender
The term "common-law marriage" is often used to describe cohabiting couples, regardless of gender, but this is merely a social usage. It does not confer on cohabiting parties any of the rights or obligations enjoyed by spouses or civil partners. Common-law marriages are achieved by an agreement to be married, living together as spouses, and announcing themselves as married without obtaining a marriage license or having a marriage ceremony.
Civil unions, on the other hand, are legally recognised partnerships between two individuals, regardless of gender, that provide many of the same legal obligations, protections, and benefits as marriages under state law. They were originally created to offer legal protections to same-sex couples who were not allowed to marry. Civil unions are available in only four US states: Colorado, Hawaii, Illinois, and New Jersey. While the process for getting a civil union can be similar to that of a marriage, it is not recognised at the federal level, and couples in a civil union may find they do not have the same protections if they move to a state that does not recognise their union.
In terms of specific rights and protections, civil unions generally afford couples inheritance rights, employment benefits, bereavement rights, parental rights, property and estate planning rights, and spousal privilege. However, there may be differences in the specific rights and protections offered depending on the state. For example, in Colorado, civil unions are granted all the same rights and protections as marriages, while in Quebec, civil unions have a different minimum age requirement and dissolution process compared to marriages.
The choice between a common-law marriage and a civil union depends on the specific legal rights and protections that are important to the couple. It is important to understand the differences between these alternatives to traditional marriage and seek legal advice if necessary.
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Civil unions are recognised at the state level, not the federal level
Civil unions are legally recognised partnerships that provide many of the same legal rights, protections and benefits as marriages under state law. However, civil unions are not recognised by the federal government. This means that civil unions do not offer certain federal protections and benefits. For example, the Social Security Administration (SSA) guarantees benefits to married couples, but not to those in a civil union. Similarly, while the surviving spouse of a veteran may be eligible for health coverage and other federal assistance, this may not be the case for spouses in a civil union.
Civil unions also differ from marriages in terms of federal tax filing and visa petitioning. Couples in a civil union must file taxes individually, rather than jointly, and may not be able to file visa petitions for a spouse or fiancé(e) who is not a citizen.
The recognition and terms of civil unions can vary significantly by state. While some states have civil union laws with protections nearly identical to marriage, others have more limited benefits or do not offer civil unions at all. As of 2021, only four states in the US permitted couples to attain civil union status: Colorado, Hawaii, Illinois and New Jersey.
Civil unions were originally created to offer the same legal protections that married couples have to same-sex couples. In 2015, when the United States Supreme Court legalised same-sex marriages, many couples' civil unions were converted to marriages. However, some couples chose to retain their civil union status.
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Civil unions were originally created to offer legal protections to same-sex couples
Civil unions are legally recognised partnerships between two individuals that offer many of the same legal protections as marriages under state law. They were originally created to provide legal protections to same-sex couples before the legalisation of same-sex marriage. In 2015, when same-sex marriage was legalised across the United States, many couples' civil unions were converted to marriages, although some chose to retain their civil union status.
Civil unions do not have the same federal recognition as traditional marriages, and therefore do not offer the same protections. For example, couples in a civil union must file taxes individually, and some federal benefits, such as social security and veteran's benefits, may not be available. The recognition of civil unions can vary significantly by state, with some offering protections almost identical to marriage, while others have more limited benefits or do not offer civil unions at all.
In contrast, common-law marriage is a marriage that takes legal effect without the prerequisites of a marriage license or ceremony. 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. Common-law marriage began historically as a stop-gap measure for couples to live as a married couple in isolated rural areas where they had to wait many months for a visit from clergy to preside over a ceremony.
While the term "common-law marriage" is often used to describe cohabiting couples, this is a misuse of the term, as these relationships are not legally recognised as marriages and do not confer the same rights and obligations as a civil partnership or marriage. In some jurisdictions, such as Canada and Scotland, common-law relationships may be granted certain rights and protections, but they are not legally considered married.
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Frequently asked questions
A common-law marriage is a legally binding union, which does not require a ceremony. It is only recognized in 15 US states and the District of Columbia, each with its own requirements. Common-law marriages grant the same benefits as a formal marriage, including social security and tax exemptions.
A civil union is a legally recognized relationship between two people, which is similar to marriage but does not confer federal recognition or benefits. Civil unions are available in some US states and offer state-level rights and protections, including health-care, inheritance, and hospital visitation rights.
The main difference is that a common-law marriage is a legally binding marriage, whereas a civil union is not a marriage and does not have federal recognition. Another difference is that a common-law marriage does not require a ceremony, whereas a civil union requires a license or certificate.
A civil union may be preferable for those who do not want to be recognized federally as married, due to tax purposes or other reasons. Civil unions also offer a way for same-sex couples to have their relationships legally recognized in states that do not allow same-sex marriage.
