Kara Sears
Mississippi has strict and clear guidelines on common-law marriage and cohabitation, which can have legal implications for divorce and custody agreements. Common-law marriage, once recognised in Mississippi until its abolition in 1956, is a form of marriage established by a couple living together and presenting themselves as married publicly. While common-law marriage is no longer recognised in Mississippi, courts may consider the validity of such marriages upon certain conditions, such as cohabitation in a jurisdiction that recognises common-law marriage. These laws have significant consequences for the distribution of assets and alimony payments upon the end of a relationship.
| Characteristics | Values |
|---|---|
| Common law marriage recognized by the state | No, common law marriage is no longer recognized by the state |
| Common law marriage recognized in divorce or settlement procedures | Yes, in certain circumstances |
| Common law marriage recognized in other states | Yes, Mississippi courts may recognize common law marriages from other states |
| Requirements for common law marriage | Couple must agree to be married and present themselves as married to the public |
| Rights of common law spouses | Same legal rights and obligations as formally married couples, including inheritance rights, property rights, and family law matters |
| Division of assets after separation | No legal division of assets accumulated during the relationship |
| Custody of children | Chancery courts in Mississippi address custody of children born to unmarried couples |
| Alimony payments | Living with a partner could result in the loss of alimony payments from an ex-spouse |
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What You'll Learn
Common-law marriage is no longer recognized in Mississippi
While common-law marriage is no longer recognized in Mississippi, the state does have very strict and clear guidelines on common-law marriage and cohabitation that can impact divorce and custody agreements. For example, cohabitation is illegal in Mississippi, and as such, there can be legal difficulties related to living with your partner, especially if you are going through a divorce or dealing with custody issues. It is important to ensure that you are protected and that you won't lose alimony payments, your ability to see your children, or any shared possessions.
In the past, common-law marriage was recognized in Mississippi until 1956. To establish a common-law marriage, a man and a woman would have to live together and present themselves as a married couple to the public. Common-law spouses had the same legal rights and obligations as formally married couples, including inheritance rights, property rights, and family law matters.
Today, even though common-law marriage is no longer recognized in Mississippi, a court may still recognize the marriage within a divorce or settlement procedure in certain circumstances. For example, if a couple has signed power-of-attorney papers while in a relationship, and the marriage was contracted in a state that recognized such a union, a court may consider the validity of the marriage. Additionally, the Mississippi Marital Contract at Common Law Recording Act allows for the recording of common-law marriage contracts, which supersedes other provisions.
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Cohabitation is illegal in Mississippi
In the past, common-law marriage was recognized in Mississippi, but this was abolished in 1956. A common-law marriage is a marriage that has not been formally registered with the state but has been created through the conduct of the parties. In Mississippi, this was known as a "marriage by habit and repute", where a couple lives together and presents themselves as married to the public. While it offered certain legal benefits, establishing a common-law marriage could be difficult, and the evidence required could vary depending on the judge and court hearing the case.
The laws against cohabitation in Mississippi can have an impact on civil affairs. For example, an unmarried couple living together may face legal difficulties related to divorce, custody, and alimony payments. Additionally, an affidavit of a relationship may be invalid and might not be considered by the court due to the state's anti-cohabitation laws.
Despite the illegality of cohabitation and the non-recognition of common-law marriage in Mississippi, there have been recent court cases that have considered the validity of such marriages. In certain circumstances, a court may recognize a common-law marriage within a divorce or settlement procedure. However, this is dependent on various factors, such as cohabitation in a state that recognizes common-law marriage and the ability to establish a specific type of marriage.
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Division of assets and property in common-law marriages
In Mississippi, common-law marriage is no longer recognized by the state. As such, there can be no legal division of assets accumulated during the relationship upon separation. However, in certain circumstances, a court may recognize the marriage within a divorce or settlement procedure, and consider the division of assets.
Mississippi is not a "community property" state, meaning family law courts in the state do not expect a 50-50 division of assets. Instead, Mississippi expects an equitable distribution of assets, where the division is considered fair based on a number of factors. For example, in the case of Lockert v. Lockert, Mississippi courts treated the family home as marital property, even though it was owned by one spouse before the marriage.
Separate properties, such as gifts and inheritances received during the marriage, are generally considered separate and not subject to division. However, separate property can be converted into marital property if both spouses regularly use it and contribute to its upkeep, a concept known as "transmutation".
In Mississippi, alimony may be awarded to make the distribution more equitable. For example, if one spouse has a significantly higher income, the other spouse may be granted alimony to balance the distribution.
To protect their rights and ensure a fair division of assets, individuals in a common-law marriage or cohabiting relationship in Mississippi should seek legal advice from an experienced family law attorney.
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Custody and support of children in common-law marriages
In Mississippi, cohabitation is not legal and common-law marriage is not recognised. This means that if a couple has children and their relationship ends, there can be legal difficulties regarding child custody.
If the parents are unmarried, the mother automatically has sole custody of the child. The father must establish paternity and take legal action to gain shared custody. Mississippi law states that judges should not presume that it is in the child's best interests for the mother to have sole custody. This is to eliminate the "tender years" doctrine, which was historically used to assume that mothers were best suited to care for young children.
Mississippi recognises two types of child custody: legal custody and physical custody. Legal custody grants parents the right to make decisions and be responsible for the child's education, health, and welfare. Physical custody refers to the child's living arrangements. Parents may have joint legal and physical custody, sole physical custody with shared legal custody, or any other combination that suits the child's best interests.
Before seeing a judge, parents will be required to see a mediator. The mediator is an impartial third party who can help resolve issues related to living arrangements, scheduling, and other disputes. If mediation does not resolve all issues, any agreements made will still be viewed favourably by the court.
In making custody decisions, judges consider a variety of factors, including each parent's parenting skills, age, physical and mental health, and moral fitness. They also take into account the child's age, health, and emotional needs. If one parent has a history of domestic violence, the judge will presume it is in the child's best interest for the other parent to have sole custody.
If the parents agree to joint custody, Mississippi law presumes that this arrangement is in the child's best interests. Visitation schedules should serve the child's best interests, fostering a close relationship with the non-custodial parent.
Child support is paid by the non-custodial parent until the child reaches the age of majority (21 in Mississippi) or is emancipated by court order. Payment amounts are calculated based on the number of children and the non-custodial parent's adjusted gross income.
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Common-law marriage recognition outside of Mississippi
Common-law marriage, also known as sui juris marriage, informal marriage, marriage by habit and repute, or marriage in fact, is a form of irregular marriage that is currently recognised in seven US states, the District of Columbia, and under some provisions of military law. Two other states recognise domestic common-law marriage after the fact for limited purposes. All 50 states and the District of Columbia recognise validly contracted out-of-state marriages, including validly contracted common-law marriages.
The recognition of common-law marriage varies from state to state. In Mississippi, a common-law marriage is defined as a marriage that has not been formally registered with the state but has been created through the conduct of the parties. To establish a common-law marriage in Mississippi, two essential elements must be met: the couple must agree to be married and present themselves as married to the public.
Outside of Mississippi, the recognition of common-law marriage varies:
- Alabama abolished common-law marriage effective 1 January 2017. Common-law marriages contracted before this date are still valid.
- California: A common-law marriage validly contracted in another jurisdiction is valid in California, but a common-law marriage that was not validly contracted in another US jurisdiction is not valid in California.
- Colorado: The state no longer recognises common-law marriages entered by minors in Colorado and does not recognise foreign common-law marriages entered into by minors.
- Utah: The status of common-law marriage is unclear. Government websites claim it does not exist, but other legal websites state that "non-matrimonial relationships" may be recognised as marriage within one year of the relationship ending. Utah will only recognise the relationship if it has been validated by a court or administrative order.
- The Territory of Guam does not recognise common-law marriage.
- The Commonwealth of the Northern Mariana Islands also does not recognise common-law marriage but may recognise customary marriage.
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Frequently asked questions
No, common-law marriage is no longer recognized in Mississippi.
A common-law marriage in Mississippi is a marriage that has not been formally registered with the state but has been created through the conduct of the parties. For a common-law marriage to be established, the couple must agree to be married and present themselves as married to the public.
Common-law spouses in Mississippi have the same legal rights and obligations as formally married couples, including inheritance rights, property rights, and family law matters. However, establishing a common-law marriage can be difficult, and the evidence required may vary depending on the judge and court hearing the case.
If you are in a common-law marriage in Mississippi, it is important to seek legal advice to understand your rights and obligations. You may consider creating an affidavit of the relationship, a written agreement that outlines the specifics of cohabitation and what happens if the relationship ends. However, an affidavit may be invalid and might not be considered by the courts due to the state's anti-cohabitation laws.
