Keith Mack
Common-law marriage, which is said to be the original form of marriage, has been gradually abolished in Western nation-states over the centuries. In the United States, common-law marriage is recognized in a few states, including Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, and Utah. However, the status of common-law marriage in some states, such as Utah, is unclear, and each state has different requirements for a relationship to qualify as a common-law marriage. For example, in Texas, simply cohabiting is not enough to be considered informally married; the couple must also hold themselves out to the public as a married couple. While common-law marriage has not been completely abolished in the United States, there is a national trend towards a more formal and legally transparent approach to recognizing marital relationships, as seen in Pennsylvania's abolition of common-law marriage in 2005.
| Characteristics | Values |
|---|---|
| Common law marriage abolished in Pennsylvania | January 1, 2005 |
| Common law marriage recognized in these states | Colorado, District of Columbia, Alabama, Montana, Iowa, Kansas, New Hampshire, South Carolina, Utah, Rhode Island, Texas, Idaho, Georgia, Oklahoma |
| Common law marriage recognized in these territories | Guam, The Commonwealth of the Northern Mariana Islands |
| Reasons for abolishment | To bring clarity and consistency to marital status, avoid legal ambiguities and disputes, align with contemporary societal norms that favored formal recognition and documentation of marriage |
| Requirements for common law marriage | Live together for a certain period of time, cohabit, hold themselves out to the public as a married couple |
| Common law marriage in Utah | Unclear, government websites claim it doesn't exist, other legal websites state "non-matrimonial relationships" may be recognized as marriage within one year after the relationship ends |
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What You'll Learn
Common-law marriage in the United States
A common-law marriage is where the parties cohabit with each other, have a mutual agreement to be married, and hold themselves out to be married. There is no requirement for a civil or religious ceremony, a marriage license, or a marriage certificate. The phrase ""common law" originates from England and refers to non-ceremonial marriages that were valid under English law. In the United States, common-law marriages were a matter of convenience because it was difficult to locate someone qualified to perform a marriage ceremony, and historically, there was a stigma associated with not being married and having a child.
The status of common-law marriage varies across the United States. As of 2022, common-law marriages are 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 marriages. The recognition of common-law marriage in Utah is ambiguous. While government websites claim that common-law marriage does not exist in Utah, other legal websites suggest that "non-matrimonial relationships" may be recognised as marriages within one year after the relationship ends.
The requirements for establishing a common-law marriage vary by state. For example, in Texas, a couple can file a legal "Declaration of Informal Marriage", which is a legally binding document completed by both marriage partners and affirmed in the presence of the County Clerk. On the other hand, cohabitation alone does not establish a common-law marriage in Texas; there must also be an agreement to be married and a public holding out as a married couple. In New Hampshire, common-law marriage is recognised for probate purposes, and it requires cohabitation, acknowledgement as husband and wife, and a general reputation as such for at least three years until the decease of one of the partners.
It is important to note that the term ""common-law marriage" is often used colloquially to refer to cohabiting couples, regardless of their legal rights. This can create confusion regarding the legal rights of unmarried partners. The legal recognition of common-law marriage in the United States has evolved over time, with most states abolishing it by statute. However, for those in a common-law marriage recognised by their state, their marriage continues to be valid even if they move to a state that does not recognise such marriages.
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Pennsylvania's abolition of common-law marriage
Common-law marriage, where couples are legally recognised as married without a marriage license or ceremony, has a long history in Pennsylvania. It was especially prevalent during the frontier days when ministers, pastors, and judges were scarce. Over the years, Pennsylvania courts grappled with the complexities of proving and legitimising these marriages, often requiring "'clear and convincing evidence".
The path to abolishment was marked by significant milestones and legislative actions. The key turning point was an amendment to the marriage laws, which set a specific date after which common-law marriages would not be recognised. This date, January 1, 2005, became the cutoff, with marriages established before then remaining legally valid.
The abolition has immediate legal effects. Couples in common-law marriages prior to the cutoff retain their marital status, but any new claims arising after January 1, 2005, face a different legal landscape. This change has implications for spousal rights, benefits, and property disputes. It also requires couples to be more proactive in legal planning and understanding their rights and responsibilities under the new framework.
While Pennsylvania no longer recognises new common-law marriages, it continues to acknowledge out-of-state common-law marriages. This recognition extends to valid common-law marriages established in other states, even if Pennsylvania judges are reluctant to decide on their validity. The state's abolition of common-law marriage aligns with a national trend away from such unions, with only a few states still recognising them.
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Common-law marriage in other US 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 is currently recognised in a handful of US states.
As of 2022, common-law marriages are 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.
In states that recognise common-law marriages, couples must meet certain requirements to gain marital status. These requirements include living together for a specified amount of time, which varies by state. Additionally, both parties must be at least 18 years old. To formalise the marriage, couples can file a legal "Declaration of Informal Marriage", which must be completed by both partners and affirmed in the presence of the County Clerk. Alternatively, couples can meet a three-prong test, providing evidence of agreement to be married, cohabitation, and holding themselves out to the public as a married couple.
Some states have abolished common-law marriage but still recognise such marriages if they began before a certain date or for a specific purpose. These states include Alabama, Florida, Georgia, Idaho, Indiana, Ohio, and Pennsylvania.
It is important to note that the recognition of common-law marriage can be nuanced even within states that officially recognise it. For example, Oklahoma has conflicting laws, and New Hampshire only recognises common-law marriage for inheritance and probate purposes.
Furthermore, under the United States Constitution, the full faith and credit clause stipulates that states must respect the laws of other states. Consequently, states without common-law marriage recognition must still acknowledge a common-law marriage from a state where it is legal, as long as the couple's relationship meets the requirements of the common-law marriage state.
Outside of the contiguous United States, the Territory of Guam and the Commonwealth of the Northern Mariana Islands do not recognise common-law marriage.
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Common-law marriage in the UK
In the UK, common-law marriage does not hold any legal status. This means that cohabiting couples do not have the same legal rights as married couples. While the term "common-law marriage" is widely used to refer to unmarried, cohabiting heterosexual couples, it is merely a social usage. The misconception of common-law marriage in the UK often leads to confusion about the rights and entitlements of cohabiting couples.
The history of common-law marriage in the UK is complex. In medieval Europe, marriage was under the jurisdiction of canon law, which recognised the validity of a marriage even without witnesses. However, the Catholic Church forbade clandestine marriage at the Fourth Lateran Council in 1215, requiring marriages to be announced in a church by a priest. Over time, more specific requirements were introduced, further regulating the marriage process.
In England, the concept of common-law marriage was abolished with the Marriage Act of 1753, which required marriages to be performed by a priest of the Church of England, with some exceptions. This Act applied to Wales but not Scotland, which has had a separate legal system since the Acts of Union in 1707. As a result, common-law marriages continued to be recognised in what are now the United States and Canada, where Scottish law was applied.
Today, common-law marriage is not recognised in England, Wales, or Scotland as a legal status. However, it's important to note that cohabiting couples in the UK do have some legal protections, such as under laws relating to domestic abuse. Additionally, unmarried couples can enter into cohabitation agreements, which can provide protections similar to marriage regarding asset distribution and access to pensions. These agreements can offer protection for both parties in the event of a split or the death of one partner.
While common-law marriage is not legally recognised in the UK, there have been calls for reform to better protect the rights of cohabiting couples and their children in the event of separation. In 2007, the Law Commission recommended the introduction of a statutory scheme of 'financial relief on separation' based on 'qualifying contributions' by each partner. However, as of 2022, the UK government has not implemented these recommendations.
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The origins of common-law marriage
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 be valid only if witnessed by the pastor of the parish or the local ordinary (the bishop of the diocese) or by the delegate of one of the witnesses.
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 survives only in a few states and the District of Columbia, along with some provisions of military law. Although it is claimed that common-law marriage in the US originated in English common law, this institution appears to have originated in colonial America, where the presence of relatively few clerics or civil officials necessitated a substitute for ceremonial marriage.
As of 2020, there were eight states that recognized common-law marriage: Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. Washington, D.C., also recognizes common-law marriage. However, most states have abolished common-law marriage by statute, and if a couple moves to a state that does not recognize their common-law marriage, they will not be considered unmarried.
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Frequently asked questions
Common-law marriage is recognized in the following US states: Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia.
The requirements for a common-law marriage vary by state but generally include cohabitation and holding themselves out to the public as a married couple. Some states, like New Hampshire, only recognize common-law marriages for certain legal purposes, such as inheritance.
Pennsylvania ended the recognition of common-law marriages as of January 1, 2005. The decision was made to bring clarity and consistency to marital status and avoid legal ambiguities and disputes.
The origins of common-law marriage are uncertain, but it is argued to be the original form of marriage where a couple cohabits, holds themselves out as married, and otherwise behaves as a married couple. Common-law marriage has been gradually abolished in Western nation-states over the centuries.
