Gavin Howe
Common-law marriage is a legally recognised marriage between two people who have not purchased a marriage license or participated in a formal ceremony. In the United States, only a minority of states recognise common-law marriages, and each has its own requirements. Outside of the US, common-law marriage or partnerships have limited recognition in some countries, such as Israel, Kuwait and Canada, where they may grant couples similar benefits and privileges to those of married couples. The term common-law marriage is also used colloquially to refer to cohabiting couples, which can create confusion regarding the legal rights of unmarried partners.
Characteristics and Values of Common-Law Status
| Characteristics | Values |
|---|---|
| Recognition | Common-law marriage is recognised in some states in the US, Canada, Israel, Kuwait, and certain states in Australia. |
| Legal rights | Common-law couples may have similar rights to married couples, including property rights, inheritance, and tax benefits. |
| Requirements | Common-law marriage typically requires cohabitation and a public holding out of the relationship as a marriage. Some states have additional requirements, such as a minimum period of cohabitation. |
| Proof | Evidence of a common-law marriage may be required, especially in cases of inheritance or separation. |
| Informality | Common-law marriage does not require a marriage license or ceremony. |
| Limitations | Common-law marriage is not recognised in all states or countries and may have limited benefits in certain jurisdictions. |
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What You'll Learn
Common-law marriage recognition in different countries
Common-law marriage, also known as non-ceremonial marriage, is a marriage that occurs when two people capable of being married intend to be married, live together as a married couple, and hold themselves out to the world as a married couple without the prerequisites of a marriage license or participation in a marriage ceremony. Common-law marriages are not legally recognized in all countries and are often used colloquially to refer to cohabiting couples.
In the United States, common-law marriages are recognized to varying degrees in different states. Some states, like Colorado, Iowa, and Rhode Island, fully recognize common-law marriages, while others, like Kansas, Oklahoma, and Texas, allow them to some extent. Other states have specific dates before which common-law marriages are recognized, such as Ohio, which only recognizes common-law marriages that began before October 10, 1991.
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 may be defined as "unmarried spouses."
Australia does not recognize common-law marriage as it is understood under common law. Instead, the term "de facto relationship" is used to describe relationships between any two persons who are not married but are living in certain domestic circumstances. Since March 1, 2009, de facto relationships have been recognized in the Family Law Act, applicable in states that have referred their jurisdiction on de facto couples to the Commonwealth's jurisdiction.
In Israel, common-law status grants couples virtually the same benefits and privileges as married couples. Kuwait also has limited recognition of common-law partnerships in expatriate familial disputes, such as maintenance payments and child support dues.
The recognition of common-law marriages varies internationally, and it is important to understand the specific laws and regulations of each country or state to determine the legal status of such marriages.
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Common-law marriage recognition in the US
Common-law marriage is a marriage that takes legal effect without the prerequisites of a marriage license or participation in a marriage ceremony. The marriage occurs when two people who are legally capable of being married and intend to be married live together as a married couple and hold themselves out to the world as a married couple.
The term "common-law marriage" is often used incorrectly to describe various types of couple relationships, such as cohabitation (whether or not registered) or other legally formalized relations. In family law, common-law marriage is a legal marriage and an informal marriage. This means that the married couple never had a formal wedding ceremony and never obtained a marriage license or marriage certificate. However, in states that allow common-law marriage, couples in a common-law marriage may have the same rights as a married couple who went through a formal marriage process.
In the United States, only a handful of states fully recognize common-law marriages, while a few others have limited recognition. These states include Colorado, Iowa, and Rhode Island, which fully recognize common-law marriage, and Kansas, Oklahoma, and Texas, which allow it to a limited extent. Some states, like Idaho, Pennsylvania, and South Carolina, only recognize common-law marriages that existed before a certain date. For example, Ohio only recognizes common-law marriages that began before October 10, 1991.
The status of common-law marriage in Utah is unclear. While government websites claim that common-law marriage does not exist in Utah, other legal websites suggest that "non-matrimonial relationships" may be recognized as marriages within one year of the relationship ending. On the other hand, Alabama abolished common-law marriage effective January 1, 2017, but marriages contracted before this date are still valid.
Same-sex couples can be common-law married, as the requirements do not mention any specific gender, and states cannot ban same-sex marriages.
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Rights and obligations of common-law spouses
The rights and obligations of common-law spouses vary depending on the jurisdiction. In some places, common-law marriage is not legally recognised, and common-law spouses may have no rights or obligations unless they have separately and legally secured protection. In other places, common-law spouses may have similar rights and obligations to married spouses, including property rights, inheritance rights, and spousal support obligations.
In England and Wales, the term "common-law marriage" refers to unmarried, cohabiting heterosexual couples, but this is merely a social usage. Common-law spouses in England and Wales do not have the same rights and obligations as married spouses or civil partners. However, unmarried partners are recognised for certain purposes in legislation, such as means-tested benefits. When a cohabiting relationship ends, ownership of any assets is decided by property law, and the courts have no discretion to reallocate assets as they would in a divorce.
In Canada, informal cohabitation relationships are recognised for certain purposes, creating legal rights and obligations for common-law spouses. For example, common-law spouses in Canada may be treated the same as married spouses for taxes and financial claims. However, they are not legally considered married and may be defined as "unmarried spouses".
In the United States, the requirements for common-law marriage vary between states, and it is not recognised in all states. Couples who qualify for common-law marriage in states that recognise it have the same property rights, inheritance rights, and spousal support obligations as traditionally married couples. Common-law spouses in these states may also be eligible for various federal benefits, including spousal retirement, survivor benefits, and disability benefits. However, without a formal marriage license, disputes over the existence of the marriage can complicate the divorce process.
In Ireland, common-law marriage is not recognised, but the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (in force between 2010 and 2015) previously gave some rights to unmarried cohabitants. In Northern Ireland, the surviving partner of a cohabiting relationship may be able to apply for provision from the estate of the deceased partner under the Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979.
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The history of common-law marriage
In the 13th century, the Catholic Church played a significant role in shaping marriage traditions. The Fourth Lateran Council in 1215 forbade clandestine marriages, requiring all marriages to be announced in a church by a priest. Later, the Council of Trent (1545-1563) introduced more specific requirements, including the presence of a witness, typically a priest or bishop, for the marriage to be considered valid.
In England, the Marriage Act of 1753 abolished clandestine or common-law marriages, mandating that marriages be performed by a priest of the Church of England, with some exceptions for Jews and Quakers. This act did not apply to Britain's overseas colonies, and common-law marriages continued to be recognized in what became the United States and Canada.
In the United States, the origins of common-law marriage are linked to the harsh conditions of colonial America, where the scarcity of clerics and civil officials made ceremonial marriages impractical. The phrase "common law" itself originates from England, referring to non-ceremonial marriages that were valid under English law. The U.S. Supreme Court case Meister v. Moore (1877) affirmed the validity of non-ceremonial marriages unless forbidden by state statute.
Over time, the recognition of common-law marriage has evolved, with varying levels of acceptance across different states and countries. As of 2022, a limited number of states in the U.S. continue to recognize common-law marriages, including Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Some states have specific requirements or only recognize common-law marriages established before a certain date.
In Canada, certain provinces extend rights and responsibilities similar to married couples to those in marriage-like relationships, but they are not legally considered married. Similarly, Australia recognizes de facto relationships, which are regulated through a combination of federal and state/territory laws.
While the term "common-law marriage" is often used colloquially to refer to cohabiting couples, it is important to note that it differs from its original meaning. Common-law marriage, in its legal sense, refers to a marriage that takes effect without a marriage license or ceremony, where two legally capable individuals intend to be married, cohabit, and hold themselves out as a married couple.
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Common misconceptions about common-law marriage
Common-law marriage is a legally recognised marriage that takes effect without the need for a marriage license or ceremony. It occurs when two people who are capable of entering a legal marriage and intend to do so live together as a married couple and present themselves as such to the world. However, common-law marriage is a topic of confusion, with many misconceptions surrounding it.
One common misconception is that cohabiting for a certain number of years, such as seven or ten, automatically results in a common-law marriage. This is not true. While cohabitation is an essential element of common-law marriage, it alone does not constitute it. The couple must also "hold out", meaning their actions and presentation to the world must reflect that they consider themselves married. This may include one partner assuming the other's last name or filing joint tax returns.
Another misconception is that common-law marriage is widely recognised. In reality, it is only recognised in a few states in the US, such as Colorado, Iowa, and Rhode Island, and even within these states, there is no simple test to determine if a couple qualifies as married under common law. Additionally, in some states, common-law marriage is only recognised before a certain date or for specific purposes, like inheritance.
It is also mistakenly believed that common-law marriage grants the same rights as a "regular" marriage. While in some states, common-law marriages are afforded the same rights as traditional marriages, this is not always the case. For example, in Washington State, which does not recognise common-law marriage, unmarried partners do not inherit in the same way as surviving spouses and do not have the same rights to social security benefits or involvement in healthcare directives, guardianship decisions, and burial instructions.
Furthermore, it is important to note that common-law marriage is distinct from other legally recognised relationships, such as domestic partnerships or civil unions, which may have similar rights to marriage in certain jurisdictions but are not considered marriages. For example, in Canada, couples in marriage-like relationships may be granted many of the rights and responsibilities of marriage but are not legally considered married and are instead defined as "unmarried spouses".
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Frequently asked questions
A common-law marriage is a legally recognised marriage between two people who have not purchased a marriage license or engaged in a formal ceremony.
Cohabitation as an unmarried couple is not enough to establish a common-law marriage. Couples in a common-law marriage must live together for a consistent period, hold themselves out to friends, family, and the community as "married", and may have joint finances and assets.
In states that allow common-law marriage, couples may have the same rights as a married couple who went through a formal marriage process, including property rights, tax benefits, and medical benefits.
Only 15 states and the District of Columbia recognise common-law marriage. These include Colorado, Iowa, Rhode Island, Kansas, Oklahoma, and Texas. Some states, like Idaho, Pennsylvania, and South Carolina, only allow common-law marriage before a certain date.
