Anaya Nolan
Common-law marriage, also known as marriage without formalities or informal marriage, is a valid and legal way for a couple to marry in certain states. Generally, a married couple is considered to be married under common law when they live together for a period of time (cohabitation) and hold themselves out to friends, family, and the community as married. However, the specific requirements for common-law marriage vary by state, and some states do not recognize it at all. If a couple with a common-law marriage decides to separate, they must file for divorce. If court proceedings are not initiated within two years of separation, some states will presume the common-law marriage never existed unless proven otherwise. Proving a common-law marriage can be challenging, especially for same-sex couples who may have faced discrimination and lacked the ability to hold themselves out in public as a married couple. This article will explore the complexities of challenging a common-law marriage and the legal requirements that must be met.
| Characteristics | Values |
|---|---|
| Cohabitation | Living together for a period of time, typically more than two years |
| Legal right or "capacity" to marry | Both partners must be at least 18 years old, of sound mind, and not already married to other people |
| Intent | Both partners must intend to be married and behave as a married couple |
| State recognition | The state where the couple lives must recognize common-law marriage |
| Evidence | Lease agreements, tax returns, insurance policies, and other official documents |
| Court involvement | A court may be needed to prove or dissolve a common-law marriage |
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What You'll Learn
Cohabitation and intent
The intent to be married is a crucial element that distinguishes common-law marriage from simple cohabitation. Both parties must agree to be married and present themselves as such to their community. This public representation can take various forms, such as referring to each other as husband and wife to friends, family, and colleagues, or filing joint tax returns. However, it is not enough to merely claim to be married; the couple's actions must demonstrate their intention to be considered a married couple.
In some jurisdictions, such as Texas, there is a specific requirement for public representation as a married couple. This means that the couple's behaviour and conduct must clearly indicate to their social circle and community that they consider themselves married. For example, they may use the same last name or introduce each other as spouses. This public aspect helps to differentiate common-law marriage from mere cohabitation, where there is no intent to be considered married.
It is worth noting that cohabitation agreements or living together agreements can be established to outline the rights and obligations of each partner in a cohabiting relationship. These agreements can provide clarity and protect both individuals in the event of a future dispute or separation. However, these agreements are not the same as a common-law marriage, which offers legal rights and protections similar to those of a traditional marriage.
The requirements for common-law marriage vary across different states and countries. For example, in Colorado, a common-law marriage requires cohabitation, an agreement to be married, and holding oneself out as married. Understanding the specific laws and requirements of the relevant jurisdiction is essential when discussing cohabitation and intent in the context of challenging a common-law marriage.
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Legal documents
In the United States, common-law marriage has existed since colonial times, and it is still recognised in some states. Common-law marriage is a legal marriage, but without the formalities of a marriage ceremony, marriage license, or marriage certificate. Couples in a common-law marriage have the same legal rights and obligations as couples who went through the formal marriage process.
To challenge a common-law marriage, you may need to prove that you were never married in a number of situations, such as when separating from your partner, inheriting property, or claiming insurance benefits. Here are some of the legal documents that may be relevant when challenging a common-law marriage:
- Tax returns: Filing individual tax returns instead of joint tax returns can be used as evidence that a couple did not consider themselves married. However, it is not always a determining factor, as some couples may have legitimate reasons for filing taxes separately.
- Legal documents: Using a maiden name or referring to a partner as a "friend" instead of a "spouse" in legal documents, such as wills, insurance policies, or lease agreements, can indicate that a couple did not intend to be married.
- Testimonies: Statements from family, friends, or colleagues can provide insight into whether a couple held themselves out as married. However, documentary evidence often carries more weight than witness testimonies.
- Time of cohabitation: While there is no statutory requirement for the length of time a couple needs to live together, the longer the cohabitation period, the stronger the case for a common-law marriage.
- Capacity to marry: Both partners must have the legal capacity to marry, typically being at least 18 years old, of sound mind, and not already married to other people.
- Intent to marry: Both partners must intend to be married and hold themselves out as a married couple in public. This can include referring to each other as "spouse," taking the same last name, or behaving as a married couple in other ways.
It is important to note that the specific legal documents and requirements may vary depending on the state and individual circumstances. Seeking legal advice from an attorney or family law practitioner is recommended when dealing with complex cases involving common-law marriages.
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Testimonies and witnesses
Firstly, testimonies and affidavits from friends, family members, or acquaintances can provide compelling evidence of the couple's cohabitation, relationship dynamics, and public recognition of their marriage. These witnesses can attest to the couple's living arrangements, the duration of their relationship, and how they presented themselves within the community. For example, in the case of Little v. Little, the Colorado Court of Appeals considered witness testimonies about the couple referring to each other as "husband" and "wife" to friends and coworkers.
Secondly, testimonies of intent from the couple themselves are crucial. Mutual intent to be married can be expressed through written communication, such as letters or emails, or official documents signed by both partners. These testimonies can explain the nature of their relationship and their understanding of the commitment and responsibilities of marriage. In some cases, one spouse may be called upon to testify against the other, especially in cases involving crimes or matters occurring before the marriage. While spousal testimonial privilege exists to protect marital relationships, there are exceptions where a spouse may be compelled to testify, such as in cases involving crimes against each other or a child.
Additionally, documentary evidence, such as lease agreements, tax returns, insurance policies, and beneficiary designations, can strengthen the claims made by witnesses and the couple themselves. These documents provide tangible proof of cohabitation, joint finances, and mutual consent, further bolstering the argument for or against the existence of a common law marriage.
It is important to note that the weight given to witness testimonies and affidavits may vary depending on the jurisdiction and the specific circumstances of each case. In some instances, documentary evidence may be prioritised over witness statements, as seen in the Little v. Little case, where the couple's individual tax returns and insurance filings contradicted witness testimonies.
Challenging a common law marriage can be complex, and it is always advisable to seek guidance from a family law attorney to navigate the specific requirements and evidentiary standards of your jurisdiction.
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Tax returns
In the United States, common-law marriage is recognised in some states, including Texas. If you are common-law married, you must file your taxes as married, and you are not permitted to file as single. Filing a joint tax return can be used as evidence of a common-law marriage. If you are common-law married, you will be responsible for any tax owed by your spouse, and your tax liability becomes "joint and several".
In Canada, common-law marriage is recognised and defined as living in a conjugal relationship with someone who is not your married spouse for at least 12 continuous months. Other situations that classify as a common-law arrangement include living with someone with whom you share a child. Common-law couples in Canada are not allowed to file a joint return; instead, they each file single returns and mark that they are in a partnership. Married couples in Canada also do not file joint returns and must file individual returns, indicating their marital status. While marital status does not affect tax rates, it can offer significant benefits for tax purposes, such as the ability to transfer some tax credits from your spouse's return to yours.
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Divorce proceedings
If you are in a common-law marriage and want to separate from your partner, you will need to file for divorce. Common-law marriages are treated the same as statutory marriages in divorce proceedings. However, before initiating divorce proceedings, it is essential to establish that a common-law marriage exists. This can be done by providing evidence and legal documents, as courts may require proof of the common-law marriage.
To prove a common-law marriage, the following criteria are generally considered:
- Cohabitation: Couples must live together for a period of time. While there is no statutory requirement for the duration, longer cohabitation strengthens the case for a common-law marriage.
- Agreement to be Married: Both partners must intend to be married and hold themselves out as a married couple to friends, family, and the public. This can include referring to each other as "spouse," taking the same last name, or any other conduct indicating a marital relationship.
- Legal Capacity to Marry: Both partners must meet the legal requirements for marriage, typically being at least 18 years old, of sound mind, and not already married to other people.
In some states, like Texas, there is a two-year statute of limitations for court proceedings to prove a common-law marriage. If proceedings are not initiated within two years of separation, it is presumed that the marriage never existed unless proven otherwise.
It is important to note that the specific requirements for common-law marriage may vary depending on the state, and it is recognized in only a handful of states with some restrictions in others. Therefore, it is advisable to consult with an attorney or legal practitioner to understand the specific laws and procedures in your state.
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Frequently asked questions
Common-law marriage is a legal marriage that does not require a formal wedding ceremony, marriage license, or marriage certificate. Common-law marriage is recognized in seven states and the District of Columbia, and another nine states recognize it with some restrictions.
The requirements for a common-law marriage vary by state, but generally include:
- Cohabitation: Living together for a period of time, although there is no statutory requirement for the length of time.
- Agreement to be married: Both partners must intend to be married and hold themselves out to friends, family, and the public as a married couple.
- Legal capacity to marry: Both partners must be at least 18 years old, of sound mind, and not already married to other people.
Proving a common-law marriage can be challenging and often requires providing certain legal documents, such as lease agreements, tax returns, and insurance policies. In some cases, witness testimony and other forms of evidence may also be considered. It is best to consult with an attorney or a family law practice guide for more information.
