Cecily Zamora
Common-law marriage is a legally recognised union between two people who have not purchased a marriage license or engaged in a ceremony. The origins of common-law marriage are uncertain, but it arguably dates back to ancient Greece and Rome, where marriages were private agreements between individuals and estates. In medieval Europe, marriage fell under canon law, which recognised a valid marriage when parties stated they took each other as husband and wife, even without witnesses. The Catholic Church forbade clandestine marriage at the Fourth Lateran Council in 1215, requiring marriages to be announced in a church by a priest. The Council of Trent (1545-1563) introduced more specific requirements, ruling that marriages were only valid if witnessed by the pastor or bishop of the parish. In 1753, England abolished common-law marriages with the Marriage Act, but this did not extend to its colonies, allowing common-law marriages to continue in what became the United States and Canada. Today, common-law marriages are still recognised in some US states, offering legal and financial benefits akin to traditional marriages, although the specific requirements vary across states.
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What You'll Learn
Common-law marriage in the US
The origins of common-law marriage are uncertain. It is argued that it originated in English common law, but this institution in the United States appears to have originated in colonial America, where there were few clerics or civil officials to conduct ceremonial marriages. Marriages per verba de praesenti, or common-law marriages, were an agreement to marry rather than a marriage. Common-law marriage is a marriage that occurs when two people who are legally capable of being married and who intend to be married, live together as a married couple and hold themselves out to the world as a married couple. This includes introducing themselves as "my husband" or "my wife", using the same last name, and maintaining joint finances.
In the United States, common-law marriages are still 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. Outside of the US, the Territory of Guam and the Commonwealth of the Northern Mariana Islands do not recognize common-law marriage.
To prove a common-law marriage, certain legal documents may be required, such as a "Declaration of Informal Marriage" in Texas. The full faith and credit clause in the United States Constitution prevents states from blocking other states with contradictory laws, so a common-law marriage in one state is recognized in all states. However, there is no such thing as a "common-law divorce", so a divorce must be done by statutory law in all jurisdictions.
The term "common-law marriage" is often used colloquially to refer to cohabiting couples, regardless of their legal rights, which can create confusion. There is no statutory requirement for the length of time a couple needs to live together to be considered common-law married, but generally, the longer they live together, the stronger their case is.
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Common-law marriage in Scotland
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 to the world as a married couple, and otherwise behaved as a married couple. In medieval Europe, marriage came under the jurisdiction of canon law, which recognized as valid any marriage in which the parties stated that they took each other as husband and wife, even in the absence of any witnesses.
In Scotland, common-law marriage does not exist. There was, however, a type of irregular marriage called 'marriage by cohabitation with habit and repute', which could apply to couples in special circumstances until 2006. This form of marriage was abolished by the Family Law (Scotland) Act 2006, which came into force on 4 May 2006. Irregular marriages established before this date are still recognized.
To qualify for this form of marriage, the couple had to be free to marry each other and be believed to be married to each other by friends, relatives, and the public at large. Community recognition of a marriage was largely what qualified it as a marriage. The state had only a limited interest in assessing the legitimacy of marriages. Normally, civil and religious officials took no part in marriage ceremonies and did not keep registries.
In Scotland, there are legal rights for cohabitants. Cohabitants require to make an application to the Court for financial provision in the event of the breakdown of a relationship or the death of a partner. The range of orders the court can make in these situations is more limited than if the couple were married. If you wish to formalize aspects of your status with a partner, you can draw up a cohabitation contract or living together agreement, which outlines the rights and obligations you have to each other.
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Common-law marriage in England and Wales
The origins of common-law marriage are uncertain. In medieval Europe, marriage fell 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. In ancient Greece and Rome, marriages were private agreements between individuals and estates, with community recognition of a marriage largely qualifying it as a marriage.
In England and Wales, common-law marriage is no longer applicable. The term "common-law marriage" is sometimes used to refer to unmarried, cohabiting heterosexual couples. However, this is purely a social usage, and it does not confer on cohabiting parties any of the rights or obligations enjoyed by spouses or civil partners. Unmarried partners are recognised for certain purposes in legislation, such as means-tested benefits. For example, the Jobseekers Act 1995 defines an "unmarried couple" as a man and a woman who are not married but are living together as husband and wife. Nevertheless, in many areas of the law, cohabitants have no special rights. As such, when a cohabiting relationship ends, ownership of any assets is decided by property law, and the courts have no discretion to reallocate assets.
It is a common misconception that before the Marriage Act 1753, also known as Lord Hardwicke's Marriage Act, cohabiting couples would enjoy the protection of a "common-law marriage". In reality, neither the name nor the concept of "common-law marriage" was known at this time. Couples who cohabited risked prosecution by the church courts for fornication. The Marriage Act 1753 abolished clandestine or common-law marriages, requiring marriages to be performed by a priest of the Church of England unless the participants were Jews or Quakers. This Act applied to Wales but not Scotland, which retained its own legal system.
While English law does not recognise common-law marriage, it does recognise ""contract marriages" or marriages per verba de praesenti, which are presumed to have been undertaken by mutual consent by couples living together without undergoing a marriage ceremony. These marriages were not understood to have the legal status of a valid marriage until the decision in Dalrymple in 1811.
In conclusion, common-law marriage in England and Wales does not confer legal rights on cohabiting couples, and the term "common-law marriage" is simply a social usage. While "contract marriages" are recognised, they were not legally valid until the 19th century.
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Common-law marriage in ancient Greece and Rome
The origins of common-law marriage are uncertain. It is arguably the original form of marriage, where a couple cohabits, holds themselves out as a married couple, and behaves as one. Common-law marriages have been gradually abolished in Western nation-states over the centuries.
Common-law marriage in ancient Greece
In ancient Greece, marriages were private agreements between individuals and estates. Community recognition of a marriage was largely what qualified it as a marriage. The state had only limited interests in assessing the legitimacy of marriages, and civil and religious officials usually took no part in marriage ceremonies and did not keep registries. Marriages were usually arranged by parents, and on occasion, professional matchmakers were used. Each city was politically independent and had its own marriage laws. For a marriage to be legal, the woman's father or guardian gave permission to a suitable man who could afford to marry. Daughters were usually married to uncles or cousins. Gifts were exchanged to formalize the legitimacy of a marriage. Women usually got married in their early teens, while men married around their mid-to-late twenties.
Divorce was relatively simple for men in ancient Greece. The husband simply had to send his wife back to her father's house and pay back her dowry. For women, divorce was more complicated. She needed to present her request in front of a chief city magistrate, then have the support of her father or closest male relative. The wife's father could also force a divorce if the marriage proved infertile.
Common-law marriage in ancient Rome
Marriage in ancient Rome was a fundamental societal institution used by Romans primarily as a tool for interfamilial alliances. It was a practice of marital monogamy, where citizens could have only one spouse at a time but were allowed to divorce and remarry. This form of monogamy co-existed with male resource polygyny, where powerful men had a principal wife and several secondary sexual partners.
In the later Imperial era, with official permission, soldier-citizens and non-citizens could marry in law. Roman citizen women could have only one sexual partner at a time but were allowed to divorce and remarry. In the case of Roman citizen men, it is unclear whether they could have a concubine concurrently with a wife.
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Common-law marriage in colonies
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 to the world as a married couple, and otherwise behaved as a married couple. In medieval Europe, marriage came under the jurisdiction of canon law, which recognized as valid a marriage in which the parties stated that they took one another as husband and wife, even in the absence of any witnesses. The Catholic Church forbade clandestine marriage at the Fourth Lateran Council (1215), requiring all marriages to be announced in a church by a priest.
The Marriage Act of 1753 abolished clandestine or common-law marriages in England and Wales. However, it did not apply to Scotland, which retained its own legal system, or to Britain's overseas colonies at the time. As a result, common-law marriages continued to be recognized in what became the United States and Canada. In the United States, common-law marriage, also known as sui juris marriage, informal marriage, or marriage in fact, is a form of irregular marriage that survives in a few states and some provisions of military law.
In the United States, as of 2022, common-law marriages are recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia, while Utah, South Carolina, and New Hampshire have limited recognition. Specific state requirements for a common-law marriage to be recognized must be considered by couples contemplating filing joint returns. For example, 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 common-law marriage.
Common-law marriage is not recognized in all US territories, such as the Territory of Guam and the Commonwealth of the Northern Mariana Islands. Similarly, Australia does not recognize common-law marriage, and other countries have gradually abolished it over the centuries.
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Frequently asked questions
The origins of common-law marriage are uncertain. It is believed to have started in colonial America, where there were few clerics or civil officials to officiate weddings, and it is recognized in some form in 15 states in the US.
Common-law marriage is 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 vary from state to state. However, some general requirements include living together for a consistent period, such as seven or ten years, introducing yourselves as a married couple, and maintaining joint finances.
Proving a common-law marriage can be challenging due to the lack of a standard formula or algorithm. It often comes down to one partner's word against the other. You may need to provide certain legal documents, such as a living-together contract or proof of joint finances, to demonstrate your intention to be married.
