Keith Mack
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 survives only in a handful of U.S. states and the District of Columbia. Common-law marriage is a legally recognized marriage between two people who haven't purchased a marriage license or engaged in a ceremony overseen by an officiant. The basic features of a common-law marriage are that the couple intends to be married, acts on that intention by living together and holding themselves out publicly as a married couple, and meets the basic requirements under state law for a legal common-law marriage. While the number of states that recognize common-law marriage varies from source to source, the following states are consistently mentioned: Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia.
| Characteristics | Values |
|---|---|
| States that recognize common-law marriage | Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, District of Columbia, Utah, South Carolina, New Hampshire, Alabama, Pennsylvania, Ohio, Idaho, Georgia, Indiana, Florida |
| States that recognize common-law marriage for limited purposes | Alabama, Florida, Georgia, Idaho, Indiana, Ohio, Pennsylvania, Utah, New Hampshire |
| Number of states that recognize common-law marriage | 9 or 15, depending on the source |
| Requirements for recognition | Must meet state requirements, including living together for a specified period, holding themselves out publicly as a married couple, having a shared intention to establish a marital relationship, and being old enough to marry |
| Benefits | Eligible for financial benefits of married couples, including inheritance rights, Social Security, and reduced insurance premiums |
| Separation | Must obtain a divorce in states where common-law marriage is recognized |
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What You'll Learn
Common law marriage requirements vary by state
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 survives only in a handful of U.S. states. These include 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 recognized vary by state. For example, in Oklahoma, the status of common-law marriage may be unclear, while New Hampshire recognizes domestic common-law marriage for probate purposes only. Utah only recognizes common-law marriages that have been validated in a judicial proceeding.
In general, to be recognized as a common-law marriage, a couple must meet the basic requirements under the marriage laws of their state, such as being old enough to get married (usually 18 years old) and having the mental capacity to enter into a marriage. Both partners must intend to establish a common-law marriage and share their lives in a committed, intimate relationship with all the legal and social responsibilities of marriage.
Additionally, couples must live together for a consistent period, such as seven or ten years, and hold themselves out publicly as a married couple. They may introduce themselves as "my husband" or "my wife" to friends, neighbors, and coworkers and use the same last name. Maintaining joint finances, such as leases, mortgages, bank accounts, and credit cards, is also considered indicative of a common-law marriage.
It is important to note that not all states recognize common-law marriages, and the specific requirements may vary depending on the state. Therefore, couples contemplating a common-law marriage should consult the specific requirements of their state to ensure their union is recognized.
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Common law marriage recognition in Colorado, Iowa, Kansas, Montana, and more
Common-law marriage, also known as sui juris marriage, informal marriage, or marriage by habit and repute, is a form of irregular marriage that does not require a formal ceremony or marriage license. Instead, it is based on the couple's actions and intentions. As of 2022, common-law marriages are recognised in Colorado, Iowa, Kansas, Montana, and several other states.
Colorado
In Colorado, a common-law marriage is established by the mutual consent or agreement of both parties to be husband and wife, followed by a mutual and open assumption of a marital relationship. While cohabitation is a relevant factor in determining a common-law marriage, it is not required, and there is no specific duration for cohabitation. The key question is whether the parties mutually intended to enter a marital relationship, and this can be inferred from their conduct.
Iowa
Common-law marriage in Iowa is defined as "a marriage which does not depend for its validity upon any religious or civil ceremony but is created by the consent of the parties as any other contract." Couples are either married or they are not, and a common-law marriage is not somewhere in between.
Kansas
In Kansas, common-law marriages are legally recognised, and couples who meet the state's criteria have the same legal protections and obligations as those who are formally married. The key factors in establishing a common-law marriage in Kansas are the mutual agreement to be married and the public presentation of the relationship as a marriage. There is no minimum amount of time for a couple to live together to be considered a common-law marriage.
Montana
Montana recognises both marriages completed with a license and solemnisation, as well as common-law marriages. To establish a common-law marriage in Montana, there must be a mutual arrangement and agreement between the two people to form the present intent to be married. The court will consider cohabitation and public repute, but there is no specific length of time required for cohabitation. The parties must also present themselves as husband and wife openly to the community.
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Common law marriage origins
The origins of common-law marriage are uncertain. It is arguably the original form of marriage, in which a couple took up residency together, held themselves out as a married couple, and otherwise behaved as a married couple. In ancient Greece and Rome, marriages were private agreements between individuals and estates, with community recognition of a marriage being what largely qualified it as a marriage. The state had a limited interest in assessing the legitimacy of marriages, and civil and religious officials typically took no part in marriage ceremonies and did not keep registries.
In medieval Europe, marriage came under the jurisdiction of canon law, which recognized as a valid marriage one in which the parties stated that they took one another as wife and husband, even in the absence of any witnesses. The Catholic Church forbade clandestine marriage at the Fourth Lateran Council in 1215, requiring all marriages to be announced in a church by a priest. The Council of Trent (1545-1563) introduced more specific requirements, ruling that future marriages would only be valid if witnessed by the pastor of the parish or the local ordinary (the bishop of the diocese) or by the delegate of one of these witnesses.
In 1753, England abolished clandestine or common-law marriages with the Marriage Act, which required couples to marry in the Church of England. However, this did not apply to its colonies, including America, where common-law marriage survived and is still recognized today in some states. In the United States, as of 2022, common-law marriages are recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, New Hampshire, Utah, South Carolina, and the District of Columbia.
In Scotland, common-law marriage does not exist, although there was a type of irregular marriage called 'marriage by cohabitation with habit and repute' that applied to couples in special circumstances until 2006.
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Benefits of common law marriage
Common-law marriage is a legal concept that allows couples to be considered married without going through a formal ceremony or obtaining a marriage license. While it is not recognised in all states, common-law marriage does offer several benefits.
Firstly, common-law marriage allows couples to enjoy the same marital rights and responsibilities as formally married couples. This includes tax benefits, such as exemptions for gifts and unlimited marital deductions for estates. Common-law spouses may also benefit from employment perks, including family leave, bereavement leave, and access to retirement accounts or pension plans. Additionally, common-law spouses can receive spousal Social Security benefits and may be eligible for spousal retirement, survivor benefits, and disability benefits.
Another advantage of common-law marriage is the flexibility it offers. Couples can choose to be recognised as married without the need for a formal ceremony, which may be important for religious reasons or to avoid the high costs of a traditional wedding. Common-law marriage also allows couples to present themselves as married to their social circle and community, using the same last name and introducing each other as husband and wife.
Furthermore, common-law marriage can provide peace of mind and security for both partners. In the event of a separation, common-law spouses have the same rights as traditionally married couples during the divorce process. Additionally, common-law marriage allows for the creation of legal estate planning documents, which specify wishes for health decisions, finances, and assets in the event of incapacitation or death.
While common-law marriage has its benefits, it is important to note that it may also present challenges. For example, it can be difficult to prove the existence of a common-law marriage, and there may be financial and legal complexities if the couple does not carefully document and plan their affairs. It is always recommended that couples understand the specific requirements and implications of common-law marriage in their state to ensure they are protected legally and personally.
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Common law divorce
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 recognized in only a few U.S. states. These include 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.
In states that recognize common-law marriage, there is no such thing as a "common-law divorce." If a couple lives in a state that recognizes common-law marriage, they must pursue a standard divorce, just like any couple who married through traditional means. The primary difference is that a common-law married couple seeking to divorce must first prove they are legally married under the laws of that state, despite not having a marriage license. This can be done through evidence like cohabitation, shared finances, or public acknowledgment of the relationship.
The process of divorcing from a common-law marriage varies by state, as not all states recognize common-law marriages, and those that do may have specific requirements for proving the marriage existed. For example, in Utah, a common-law marriage must be validated in a judicial proceeding to be considered valid. In New Hampshire, common-law marriage is only recognized for probate purposes.
It is important to understand the local laws governing common-law marriages to resolve legal and financial matters effectively. For instance, if a couple with a legitimate common-law marriage in Texas moves to Massachusetts, a state that does not recognize common-law marriage, their marriage should still be valid under the Full Faith and Credit Clause of the United States Constitution.
Additionally, a common-law spouse who separates without obtaining a valid divorce is still legally married and cannot marry another person without violating bigamy laws. Therefore, it is crucial to obtain a formal divorce decree from a judge to end a common-law marriage legally.
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Frequently asked questions
A common-law marriage, also known as a sui juris marriage, is a form of irregular marriage that does not require a marriage license, marriage ceremony, or marriage certificate. It is a legally recognized marriage where two people intend to be in a relationship as a married couple and act on that intention by living together and holding themselves out publicly as a married couple.
Common-law marriage is not recognized in all 50 states. As of 2022, common-law marriages are recognized 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 recognized vary from state to state. Some general requirements include living together for a consistent period, such as seven or ten years, introducing themselves as a married couple to friends, neighbors, and coworkers, and maintaining joint finances. Additionally, both partners must intend to establish a common-law marriage and meet the basic requirements under state law, such as being old enough to get married and having the mental capacity to enter into a marriage.
