Gavin Howe
Common-law marriage, also known as non-ceremonial marriage, is a legally recognised marriage that does not require a marriage license or a formal ceremony. Instead, it is based on the agreement of the couple to consider themselves married and their cohabitation as a married couple. The purpose of common-law marriage is to provide a legal framework for couples who choose not to have a traditional wedding ceremony, often due to personal beliefs or logistical challenges. It grants them the same rights as formally married couples, including property rights and legal protections in the event of divorce or death. While the recognition of common-law marriage varies across different states and countries, it offers a way for committed couples to establish a legally binding union without undergoing a formal marriage process.
| Characteristics | Values |
|---|---|
| Legal recognition | Common-law marriages are legally recognised in some places, including certain US states, the District of Columbia, and formerly in Scotland. |
| Prerequisites | Common-law marriage does not require a marriage license, certificate, or ceremony. |
| Cohabitation | Couples must live together, but there is no minimum time requirement. |
| Intention | Both partners must intend to be married and hold themselves out as married to friends, family, and the community. |
| Legal capacity | Both partners must have the legal right to marry, including being at least 18 years old and not currently married. |
| Benefits | Common-law marriages are intended to provide the same rights as formal marriages, including property rights and inheritance. |
| Divorce | Ending a common-law marriage is similar to a formal divorce, but it may be harder to file for. |
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What You'll Learn
Common-law marriage history
The roots of common-law marriage can be traced back to medieval England, where formalities were less emphasised, and unions were often recognised based on the couple's intent and public acknowledgment. As societies evolved, common-law marriage found its way into legal systems, adapting to cultural and societal changes. Its prevalence varied, influenced by factors such as religion, tradition, and legal developments.
In medieval Europe, marriage came under the jurisdiction of canon law, which recognised as a valid marriage one in which the parties stated that they took one another as husband and wife, even in the absence of any witnesses. Community recognition of a marriage was largely what qualified it as a marriage. Civil and religious officials typically took no part in marriage ceremonies and did not keep registries. There were several more or less formal ceremonies to choose from, as well as informal arrangements. It was relatively common for couples to cohabit with no ceremony; cohabiting for a moderate period was sufficient to make it a marriage.
In the United States, common-law marriage has existed since colonial times, when America was a colony of England. The first colonies of America were subject to England's rule, but Acts of Parliament did not apply to its colonies unless the colonies were mentioned by name. The Parliament of Great Britain passed the Clandestine Marriages Act of 1753, which ended common-law marriages in England and Wales. However, this did not apply to the American colonies, and common-law marriage survived in colonial America and is still recognised in some states today.
The first state in the United States to officially recognise common-law marriage was Alabama. In 1847, the Alabama Supreme Court acknowledged the validity of common-law marriages in the case of Meagher v. Meagher. This decision set 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. Today, common-law marriage can still be contracted in Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia.
Canada does not have the institution of common-law marriage, but informal cohabitation relationships are recognised for certain purposes, creating legal rights and obligations. In Western Australia, de facto relationships are recognised under the Family Law Act (Commonwealth).
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Which jurisdictions recognise it?
Common-law marriage, also known as non-ceremonial marriage, is a marriage that arises from the parties' agreement to consider themselves married and cohabitation, rather than a statutorily defined process. It is important to note that not all jurisdictions permit common-law marriage, but they will typically respect the validity of such marriages lawfully entered in another state or country.
In the United States, common-law marriage is recognised in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire have limited recognition of common-law marriage. If a couple's common-law marriage is recognised in the state or jurisdiction in which they live, they are entitled to the same rights as a married couple, including tax and Social Security benefits. However, if they move to a state that does not recognise common-law marriage, they will lose these benefits.
In the United States, a common-law marriage is recognised by the state if the couple meets the requirements, which include cohabitation and holding themselves out in public as a married couple. There is no requirement for a specific period of cohabitation, but it must be consistent. Some states require consummation, while others do not. Importantly, a common-law marriage in the US must be dissolved through a legal divorce, just like a traditional marriage.
In Canada, while there is no institution of common-law marriage, informal cohabitation relationships are recognised for certain purposes, creating legal rights and obligations. Couples in these relationships may be defined as "unmarried spouses" and treated the same as married spouses for taxes and financial claims.
In the United Kingdom, a 2008 poll showed that 51% of respondents incorrectly believed that cohabitants had the same rights as married couples. While Scotland once recognised a form of irregular marriage called 'marriage by cohabitation with habit and repute', this was abolished in 2006.
In Australia, de facto relationships are recognised in the Family Law Act (Commonwealth), but Western Australia has not referred its jurisdiction to the Commonwealth and instead has its own state legislation. There is no federal recognition of de facto relationships outside of Australia, so it remains a state matter.
Many Aboriginal nations, such as the Navajo Nation, permit common-law marriage or its historic tribal equivalent.
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What are the requirements?
The requirements for a common-law marriage vary depending on the jurisdiction. Common-law marriage is not recognised in Australia, Canada, or the UK, but it is still valid in several US states.
In the US, common-law marriage is recognised in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire have limited recognition of common-law marriage. The requirements for a common-law marriage to be considered legal in each state vary, but there are some common elements. Firstly, both parties must have the legal capacity to marry, meaning they must be at least 18 years old, of sound mind, and not already married to someone else. Secondly, both parties must intend to be married and hold themselves out to the world as a married couple. This means they live together, behave as a married couple, and present themselves as married to friends, family, and the community. Lastly, there is no statutory requirement for the length of time a couple needs to live together, but generally, the longer they have lived together, the stronger their case is for a common-law marriage.
It is important to note that the term "common-law marriage" is often used incorrectly to describe cohabitation or other legally formalized relationships. A common-law marriage that meets state requirements is just as valid and legally binding as a formalised marriage. Therefore, if one wishes to establish a common-law marriage, it is essential to understand the specific requirements of the state or jurisdiction in which the marriage is taking place.
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What are the legal rights?
The legal rights of a common-law marriage vary depending on the jurisdiction. In some places, common-law marriages are not recognised at all, while in others, they are recognised as legally binding and carry the same rights as a formal marriage.
In the United States, common-law marriage has existed since colonial times, and is currently recognised in nine states and the District of Columbia. In these jurisdictions, couples in a common-law marriage have the same rights as couples who went through a formal marriage process. However, there may be complexities and uncertainties, especially in cases involving prenups, significant debt, child custody issues, and property questions.
In Canada, common-law marriage as a legal concept does not exist, but informal cohabitation relationships are recognised for certain purposes, creating legal rights and obligations. Similarly, in Australia, common-law marriage is not recognised, but de facto relationships are, and these may confer similar rights.
In England, common-law marriages were abolished in 1753, and in Scotland, they were abolished in 2006.
The requirements for a common-law marriage to be recognised vary, but generally include the following:
- Both partners must have the legal right or "capacity" to marry, meaning they must be at least 18 years old, of sound mind, and not already married to other people.
- Both partners must intend to be married and hold themselves out to friends, family, and the community as "married".
- The couple must live together for a period of time (cohabitation). However, there is no statutory requirement for the length of time, and this is considered on a case-by-case basis.
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How to end a common-law marriage
To end a common-law marriage, it is important to understand that, despite the name, a common-law marriage is still a legally recognized marriage. This means that the process for ending this type of marriage is similar to that of a traditional marriage. Here are the steps to follow:
Firstly, check your state's laws. Not all states recognize common-law marriages, and the requirements for establishing a common-law marriage vary by state. You need to understand the specific laws in your state to know your rights and the process for ending the marriage. Some states have a requirement for a formal declaration of separation, while others simply require an informal agreement between the couple.
Next, if your state recognizes common-law marriages, you will need to file for divorce, just as you would in a traditional marriage. This process can be complex and may require the assistance of a lawyer, especially if there are significant assets or children involved. You will need to provide proof of your common-law marriage, which can include evidence such as joint leases, bank accounts, or testimony from witnesses.
During the divorce process, you will need to divide your assets and debts. This can be a complicated process, especially if you have been together for a long time and have acquired significant shared property. It is important to try to divide your assets fairly and equitably, and mediation or collaborative law processes may help you reach an agreement without going to court.
If you have children, you will also need to establish a parenting plan and child support arrangement. The court will always prioritize the best interests of the child, so be prepared to put aside your differences and focus on creating a stable and secure environment for your children. This may involve negotiating custody and visitation rights, as well as determining financial support for the children.
Finally, once all the necessary agreements have been made and the divorce is finalized, you will need to update any relevant legal documents to reflect your new status. This includes changing your name (if you took your partner's name), updating your will and beneficiaries, and informing relevant organizations, such as your bank or insurance company, of your change in marital status. Ending a common-law marriage can be a complex and emotional process, but by following these steps and seeking legal advice where needed, you can navigate the process effectively and start a new chapter in your life.
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Frequently asked questions
Common-law marriage, also known as non-ceremonial marriage, is a marriage that occurs without a license or formal ceremony. The couple must live together and hold themselves out to the world as a married couple.
Common-law marriage is a more personal and informal way to marry. It is also a way to protect people who are married in all but name, for example, if they have had a foreign religious ceremony.
Common-law marriage is not recognised in most places. In the US, it is recognised in Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, Utah, and the District of Columbia. In Canada, common-law marriage is not recognised, but informal cohabitation relationships are recognised for certain purposes.
The requirements for common-law marriage vary depending on the location. In general, both parties must have the legal capacity to marry, intend to be married, and live together.
If there is a dispute about whether a common-law marriage existed, it may be necessary to go to court to prove the marriage. This usually involves providing evidence of cohabitation and that the couple held themselves out as a married couple.
