Keith Mack
In the United States, common-law marriage is a way for two individuals cohabiting as a couple to be recognized as married without a formal marriage ceremony or license. While a small number of states recognize common-law marriage, North Carolina is not one of them. However, North Carolina may recognize a couple as married under common law if they were previously recognized as such in a state that does.
| Characteristics | Values |
|---|---|
| Recognition of common-law marriage | No, abolished in 1989 |
| Recognition of common-law marriage from other states | Yes, under the Full Faith and Credit Clause of the Constitution |
| Requirements for recognition of out-of-state common-law marriage | Cohabitation in a state that recognizes common-law marriage, validation by the state of North Carolina |
| Requirements for marriage | Marriage license, ceremony officiated by a licensed officiant (magistrate, minister, or religious official) |
| Legal rights of cohabiting couples | No marital rights, but may have rights and obligations related to property, debt, etc. |
| Suggested legal protection for cohabiting couples | Cohabitation agreement, joint tenancy, or tenancy in common |
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What You'll Learn
North Carolina does not recognise common-law marriage
In North Carolina, a valid marriage requires that both parties consent to the union and take each other as husband and wife either in the presence of an ordained minister or a magistrate, followed by the declaration by the minister or magistrate that the parties are husband and wife. This can also be done in accordance with any mode of solemnization recognized by any religious denomination, or federally or state-recognized Indian Nation or Tribe.
North Carolina does not recognize common-law marriage. This means that even if a couple meets the requirements of a common-law marriage while in North Carolina, they are not recognized as being legally married. The concept of a "common-law marriage" varies by state, and some states do not recognize it at all. In the United States, only a few states recognize common-law marriage, and even then, the requirements can vary.
Common-law marriage, sometimes referred to as a "non-ceremonial marriage," can be claimed when a couple has been together for an extended period, lives together, and considers themselves married both privately and publicly, but has never had an actual ceremony or valid marriage license. For example, if a couple has been together for seven years, lives together, shares bank accounts, and refers to each other as husband and wife, some states may recognize this as a common-law marriage.
However, in North Carolina, there is no specific amount of time that a couple must live together to be recognized as married without a valid license. Simply living together, regardless of the length of time, does not create a legal marriage under North Carolina law. To be legally married in North Carolina, couples must obtain a marriage license and have a ceremony officiated by a licensed officiant.
That said, if a couple is common-law married in a state that recognizes common-law marriage and subsequently relocates to North Carolina, the Full Faith and Credit Clause of the U.S. Constitution requires North Carolina to recognize the marriage. In such cases, the couple must have engaged in cohabitation in the state where they were married by common law, and the common-law marriage must have been recognized by the state where it took place.
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Common-law marriage recognition in other states
In the United States, 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 only survives in a handful of states. The term is often used colloquially to refer to cohabiting couples, regardless of their legal rights.
Common-law marriages recognised in one state are not automatically acknowledged in another. This can lead to difficulties for couples relocating between states, especially when moving to a state that does not recognise common-law marriage. For example, a couple with a common-law marriage in Texas may face challenges proving their marital status if they move to California, which does not recognise common-law marriage.
Some states have specific regulations regarding common-law marriage:
- Colorado: Requires cohabitation, mutual agreement, and public representation as married.
- Iowa: Mandates intent to marry, continuous cohabitation, and public declaration.
- Kansas: Fully recognises common-law marriage.
- Montana: Fully recognises common-law marriage.
- Texas: Recognises common-law marriage.
- 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 ending.
- South Carolina: Fully recognises common-law marriage.
- Rhode Island: Fully recognises common-law marriage.
North Carolina does not recognise common-law marriage. However, there are occasional exceptions where the state may recognise a couple as married if they went through a common-law marriage in another state. For this to apply, the couple must have cohabited in the state where the common-law marriage took place, and that state must have recognised the union.
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Legal rights of cohabiting couples in North Carolina
Cohabitation before marriage is technically illegal in North Carolina, though this law is not enforced. The state does not recognize common-law marriages, meaning that cohabiting couples are not considered legally married and do not have the same protections as married couples.
Common-law marriage, or non-ceremonial marriage, is a legal framework where a couple may be considered married without having formally registered their relationship. To be recognized as a common-law marriage, a couple typically must have lived together for an extended period, present themselves as a married couple, and intend to be married. While North Carolina does not recognize common-law marriages within the state, it may recognize such marriages from other states provided that the couple obtains validation from the state.
Cohabiting couples in North Carolina have no legal status and are not subject to the same property division processes as married couples. Unmarried couples who live together are advised to create a cohabitation agreement, a legally binding contract enforceable under North Carolina law, to outline issues like the dispersal of assets and debts, healthcare decisions, and estate planning. Certain cities and counties in North Carolina recognize domestic partnerships, but the rights afforded to couples differ by jurisdiction and are not recognized throughout the state.
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Divorce and separation for common-law married couples
In North Carolina, common-law marriages are not recognized. A valid marriage requires that both parties consent to the union and that the parties take each other as husband and wife in the presence of an ordained minister of any religion, a magistrate, or any other mode of solemnization recognized by a religious denomination or federally or state-recognized Indian Nation or Tribe.
However, if a couple is common-law married in a state that recognizes such marriages and subsequently relocates to North Carolina, the state must recognize the marriage. In the event of a divorce, a common-law married couple must go through the same legal process as a couple with a marriage license. This includes physically separating and waiting at least one year before filing for divorce. During this period, issues of property division, alimony, child support, and child custody may need to be addressed.
One complication unique to common-law married couples is proving that they were indeed married. It is easy for one party, usually the one with the financial advantage, to claim that they never intended to be married.
In North Carolina, a separation agreement or other written document is not required to be legally separated. To be considered separated, spouses need to live in different homes, and at least one of them must intend for the separation to be permanent.
Assets and debts acquired during the marriage are generally classified as "marital property," while property obtained between separation and divorce is considered "divisible property" and may be divided between the parties depending on the circumstances. Alimony, or spousal support, is another factor to consider, with judges taking into account factors such as income, earning capacity, age, health, and marital misconduct.
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Requirements for a legal marriage in North Carolina
North Carolina does not recognize common-law marriages. This means that even if a couple meets the requirements for a common-law marriage in a state that does recognize it, their marriage would not be legally recognized in North Carolina.
For a marriage to be legally recognized in North Carolina, it must meet the following requirements:
- Both parties must consent to the union.
- The couple must take each other as husband and wife either in the presence of an ordained minister of any religion or a magistrate, followed by the declaration by the minister or magistrate that the parties are husband and wife. It is important to note that judges cannot perform marriages in North Carolina.
- The union must be in accordance with any mode of solemnization recognized by any religious denomination or federally or state-recognized Indian Nation or Tribe.
- The couple must obtain a marriage license.
Prior to October 1, 1994, couples intending to marry in North Carolina were required to obtain a doctor's certificate showing that they were mentally competent and free from venereal disease and infectious tuberculosis. After this date, health certificates for the issuance of marriage licenses were no longer required.
Although North Carolina does not recognize common-law marriages, there are some cases where they may recognize a couple as married if they went through a common-law marriage in another state. For this to be acknowledged by North Carolina, the couple must have cohabited in the state where they were married by common law, and that state must have recognized the common-law marriage.
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Frequently asked questions
No, North Carolina does not recognize common-law marriage.
Common-law marriage is when a couple is considered married without obtaining a marriage license or holding a marriage ceremony. Instead, they cohabit and present themselves as husband and wife to the public.
Yes, North Carolina will recognize a common-law marriage from another state, provided that the couple meets certain requirements, such as having cohabited in the state where they were married by common law and having the common-law marriage recognized by that state.
The requirements for a common-law marriage to be recognized in North Carolina include the couple having cohabited in a state that recognizes common-law marriage and that state recognizing the common-law marriage. Additionally, the couple may need to have the state of North Carolina validate their common-law marriage.
Couples in a common-law marriage recognized by North Carolina will have the same legal and economic benefits as couples with a marriage license. However, in the event of a divorce, it may be challenging to prove the existence of the marriage, especially if one party claims there was never an intention to be married.
