Kara Sears
Common-law marriage is a legal marriage that is not formally recorded with a state or religious registry, nor celebrated in a formal civil or religious service. In other words, it is a marriage that takes legal effect without the prerequisites of a marriage license or participation in a marriage ceremony. Common-law marriage is recognized in seven states and the District of Columbia, as well as in Canada and India. The criteria for a common-law marriage include being of marriageable age, not already being married, living together for a period of time, and holding themselves out to friends, family, and the community as married.
| Characteristics | Values |
|---|---|
| Legal Status | Common-law marriage is a legally recognised marriage in some states and jurisdictions. It is not recognised in Australia. |
| Requirements | Both partners must be of sound mind, be of marriageable age (usually 18), and not already married. |
| Intent | Both partners must intend to be married and behave as a married couple in public. |
| Cohabitation | Couples must live together for a “significant” period, though there is no statutory requirement for the length of time. |
| Proof | Couples may have to provide certain legal documents to prove their common-law marriage. |
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What You'll Learn
Common-law marriage recognition
The recognition of common-law marriages varies across different jurisdictions. In the United States, common-law marriages are only recognised in seven states and the District of Columbia, as well as in some provisions of military law. These states are Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, and Texas. Utah and New Hampshire recognise common-law marriages for limited purposes.
In the US, a common-law marriage is established when a couple is competent to enter into a marriage, mutually consents and agrees to a common-law marriage, and cohabitates and is reputed in the community to be husband and wife. The basic requirements for a common-law marriage include being of marriageable age, having the mental capacity to enter into a marriage, and not being currently married. Both partners must intend to be married and behave as a married couple, holding themselves out to friends, family, and the public as a married couple. While there is no statutory requirement for the length of time a couple needs to live together, generally, the longer a couple lives together, the stronger their case is for a common-law marriage.
In Canada, while some provinces may grant couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married. They may be legally defined as "unmarried spouses" and treated the same as married spouses for many purposes such as taxes and financial claims.
In Australia, the term used for relationships between any two persons who are not married but are living in certain domestic circumstances is a "de facto relationship". Since March 1, 2009, de facto relationships have been recognised in the Family Law Act (Commonwealth), applicable in states that have referred their jurisdiction on de facto couples to the Commonwealth's jurisdiction.
In India, the Supreme Court has defined a "'relationship in the nature of marriage' as akin to a common-law marriage. The requirements for such a relationship include being of marriageable age, not being already married, living together in a way that seems to society that the couple is married, cohabiting for a "significant" period of time, and living together voluntarily.
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Legal rights and benefits
Common-law marriage is a legally recognised marriage that does not require a couple to purchase a marriage license or participate in a formal ceremony. In the United States, common-law marriages have existed since the colonial era, when America was a colony of England.
As of 2019, only seven states clearly continue to recognise common-law marriage: Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, and South Carolina. The District of Columbia also recognises common-law marriage. In these states, common-law spouses who meet the requirements are eligible for most of the financial benefits of a married couple, including Social Security.
The legal rights and benefits of common-law marriage include:
- Healthcare benefits, such as combining health insurance policies to reduce the amount paid in monthly premiums, hospital visitation rights, and the right to make emergency medical decisions.
- Tax benefits, such as the marital tax deduction, the option to file joint tax returns, and exemption from the gift tax for gifts to each other.
- Inheritance rights, such as the right to inherit a spouse's estate without paying an estate tax.
- Property rights in divorce, such as rights in property division upon separation.
- Child custody rights.
- Spousal support rights.
It is important to note that the recognition of common-law marriage and the associated legal rights and benefits can vary depending on the state and jurisdiction. Additionally, common-law marriage is not recognised in all countries, and even in countries where it is recognised, it may not be universally accepted.
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Requirements and criteria
The requirements and criteria for a common-law marriage vary depending on the jurisdiction. In the United States, common-law marriage is recognised in seven states and the District of Columbia, with two other states recognising it for limited purposes. These states are:
- Colorado
- Iowa
- Kansas
- Montana
- Rhode Island
- Oklahoma
- Texas
- New Hampshire (for probate purposes only)
- Utah (only if validated in a judicial proceeding)
In the US, the basic requirements for a common-law marriage are:
- Both partners must be legally competent to marry, meaning they are of marriageable age (usually 18 years old) and have the mental capacity to enter into a marriage.
- Both partners must consent and agree to the common-law marriage.
- The couple must cohabit and be reputed in the community to be husband and wife.
While there is no statutory requirement for the length of time a couple needs to live together, generally, the longer they live together, the stronger their case is for a common-law marriage. Couples can prove their common-law marriage through documents such as lease agreements, tax returns, and insurance policies, or by registering their marriage with the county clerk.
In Canada, while some provinces may grant couples in marriage-like relationships the rights and responsibilities of a marriage, they are not legally considered married and may be defined as "unmarried spouses" for tax and financial purposes.
In India, the Supreme Court has defined a "'relationship in the nature of marriage' as akin to a common-law marriage, requiring the couple to be of marriageable age, not already married, living together voluntarily for a "significant" period, and holding themselves out to society as married.
In Australia, the term "de facto relationship" is used for relationships between any two persons who are not married but are living in certain domestic circumstances, and these relationships are recognised in the Family Law Act.
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Proving a common-law marriage
Common-law marriage is an informal marriage without a marriage license, certificate, or ceremony. It is fully recognised in seven states and the District of Columbia in the US, and in Texas, it is a valid and legal way for a couple to marry. However, the criteria for a common-law marriage vary across states, and some states do not recognise it at all. Therefore, proving a common-law marriage depends on the state in which the marriage was established.
To prove a common-law marriage, couples must provide evidence that meets the legal requirements for valid common-law marriages in their state. This may include:
- Proving that the couple established their marriage while living in a state that recognised common-law marriages.
- Providing documents such as lease agreements, tax returns, insurance policies, property deeds, or affidavits.
- Demonstrating that both partners intended to be married and held themselves out in public as a married couple, such as by referring to each other as "spouse" or "partner" or sharing the same last name.
- Satisfying other general marriage requirements, such as being at least 18 years old and having the mental capacity to understand the commitment and consequences of marriage.
It is important to note that same-sex couples may have a harder time gathering the necessary evidence, as they may not have had the option to file joint tax returns or list their partner as their spouse on official documents before the legalisation of same-sex marriage. In such cases, judges are advised to take a broad view and consider these realities when assessing the evidence.
If there is a dispute about whether a common-law marriage existed, it may be necessary to go to court to prove the marriage, and legal advice should be sought.
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History of common-law marriage
The history of common-law marriage dates back to medieval England, where formalities were less emphasised and unions were often recognised based on the couple's intent and public acknowledgment. In medieval Europe, marriage came under the jurisdiction of canon law, which recognised as valid a marriage in which the parties stated that they took each other as husband and wife, even in the absence of any witnesses. Community recognition of a marriage was largely what qualified it as a marriage, and civil and religious officials took no part in marriage ceremonies and did not keep registries.
In ancient Greece and Rome, marriages were private agreements between individuals and estates. The roots of common-law marriage in the United States can be traced back to the colonial era, where legal systems mirrored those of England. In colonial America, it was much harder to find a qualified cleric or wedding officiant, so many couples considered themselves married under common law out of necessity. In 1753, the Clandestine Marriages Act was enacted in England to regulate marriages and eliminate secret unions, but this did not apply to its overseas colonies, and common-law marriages continued to be recognised in what became the United States and Canada.
In 1847, the Alabama Supreme Court acknowledged the validity of common-law marriages in the case of Meagher v. Meagher, setting a precedent for other states to follow. Throughout the 19th and early 20th centuries, common-law marriage gained popularity as an acceptable form of marital union in various states. However, as of 2022, common-law marriages are only recognised in a handful of states, including Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia.
In 1933, New York abolished common-law marriage through the passage of the Domestic Relations Law Section 11, which states that "no marriage shall be valid" without a marriage license, thus making it one of the states that do not recognise common-law marriage.
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Frequently asked questions
A common-law marriage is an informal marriage where couples do not have a marriage license, marriage ceremony, or marriage certificate.
The criteria for a common-law marriage vary depending on the state. Common requirements include living together, having the legal right to marry, and intending to be married.
Common-law marriage is recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Alabama, Florida, Georgia, Indiana, Ohio, and Pennsylvania recognize common-law marriages established before a certain date.
You can prove a common-law marriage by providing certain legal documents, such as joint bank accounts, tax returns, joint ownership of property, or an Affidavit of Common Law Marriage.
