Kara Sears
Common-law marriage, sometimes referred to as informal marriage, is a marriage that is established without legal formalities such as obtaining a marriage license or having a religious or civil ceremony. Common-law marriage is not recognized in all countries or states, and the requirements to prove a common-law marriage vary depending on the location. For example, in the United States, only eight states plus Washington, D.C., allow couples to establish new common-law marriages. In other states, common-law marriages may be recognized if they existed before a certain date or for limited purposes. In Louisiana, common-law marriages cannot be established, but the courts will recognize common-law marriages that were legally set up in other states. In Canada, informal cohabitation relationships are recognized for certain purposes, creating legal rights and obligations for the couple.
| Characteristics | Values |
|---|---|
| Number of states in the U.S. that allow common-law marriages | 8 (plus Washington, D.C.) |
| States that currently recognize common-law marriages | Colorado, Kansas, Montana, Texas, New Hampshire |
| Countries that do not recognize common-law marriages | Scotland, Australia, Canada, Ireland, Israel, Louisiana |
| Basic features of a common-law marriage | Intention to be a married couple, acting on that intention by living together and holding themselves out publicly as a married couple, living in a state that recognizes common-law marriage, meeting the basic requirements under state law |
| Evidence considered by the court | The couple's references to or labels for one another, e.g., calling each other husband/wife |
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What You'll Learn
Common-law marriage requirements
Common-law marriage, also known as non-ceremonial marriage, is a marriage that results from the parties' agreement to consider themselves married, followed by cohabitation, rather than through a statutorily defined process. Common-law marriage is not recognized in all jurisdictions, but those that do will typically respect the validity of such marriages lawfully entered in another state or country.
In the United States, common-law marriage is recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia. While the specific requirements may vary from state to state, here are some general requirements for a common-law marriage:
Living Together
Cohabitation is often considered a crucial aspect of a common-law marriage. While there is no statutory requirement for the length of time a couple needs to live together, generally, the longer they live together, the stronger their case is for common-law marriage. There must also be evidence of cohabitation, such as sharing finances, owning property together, or having children together.
Legal Capacity to Marry
Both partners must have the legal right or capacity to marry. This typically means they must be of marriageable age (usually 18 years or older) and of sound mind. Additionally, they cannot already be married to other people.
Intent 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 means they present themselves and behave as a married couple in their daily lives.
Meeting State Requirements
In addition to the above, couples must meet the specific requirements set by the state in which they are seeking to establish their common-law marriage. These requirements can vary and may include factors such as the length of cohabitation, having children together, or other criteria defined by the state.
It is important to note that while common-law marriage is recognized in some states, it is not recognized in others. Therefore, it is crucial to understand the laws and requirements of the specific state in which the couple intends to establish their common-law marriage.
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Common-law marriage recognition in the US
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, along with some provisions of military law. The origins of common-law marriage are uncertain, but it is arguably the original form of marriage, in which a couple takes up residency together, holds themselves out to the world as a married couple, and otherwise behaves as a married couple.
In the United States, common-law marriage is a marriage established without legal formalities like taking out a marriage license or having a religious or civil ceremony. The basic features of a common-law marriage are: two people intend for their relationship to be that of a married couple, they act on that intention by living together and holding themselves out publicly as a married couple, they live in a state that recognizes common-law marriage for all purposes, and they meet the basic requirements under state law for a legal common-law marriage.
Once a couple meets these criteria for a common-law marriage, their legal status is just like any other marriage, and they enjoy all the rights and benefits of marriage, including inheritance rights and other estate planning benefits. However, the lack of formal documentation can lead to ambiguity regarding marital status, which might cause legal disputes or misunderstandings.
The recognition of common-law marriage varies by state, and it is important to understand the differences for accurate legal recognition. For example, Colorado requires cohabitation, mutual agreement, and public representation as a married couple, while Iowa mandates intent to marry, continuous cohabitation, and public declaration. Some states have abolished common-law marriage but still recognize common-law marriages if they began before a certain date or for a specific purpose. For instance, Alabama abolished common-law marriage effective January 1, 2017, but common-law marriages contracted before this date are still valid.
When moving between states, navigating common-law marriage can be complex. While the Full Faith and Credit Clause in the U.S. Constitution mandates states to honor legal decisions from other states, conflicts arise when a couple moves to a state that does not recognize common-law marriage. In such cases, legal consultation becomes crucial to preserving legal rights and navigating challenges in proving marital status for matters like inheritance or spousal rights.
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Common-law marriage recognition in the UK
Common-law marriage, also known as non-ceremonial marriage, is a marriage that results from an agreement between two people to consider themselves married, followed by cohabitation, rather than through a statutorily defined process. Common-law marriage is not legally recognised in the UK. This means that couples who are not officially married or in a civil partnership do not have the same legal rights or protection as a lawful marriage or civil partnership.
In England, common-law marriages were abolished by the Marriage Act of 1753, which required marriages to be performed by a priest of the Church of England unless the participants were Jewish or Quaker. This Act also applied to Wales but not Scotland, which retained its own legal system.
Despite this, a 2008 poll in the UK showed that 51% of respondents incorrectly believed that cohabiting couples had the same rights as married couples. This misconception may be due to the term "common-law marriage" being used to denote unmarried, cohabiting heterosexual relationships since the 1960s.
Although common-law marriage is not recognised in the UK, there are still some limited rights available to cohabiting partners. For example, cohabiting individuals can claim bereavement benefits if they have dependent children, and a common-law partner can choose who will receive their pension pot if they die before it is used. Additionally, unmarried couples can create a cohabitation agreement, a legal document detailing what each partner is entitled to if the relationship ends or one partner passes away.
While common-law marriage is not recognised in the UK, it is recognised in some other countries, such as certain states in the US, Israel, and, to a limited extent, Kuwait.
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Common-law marriage recognition in other countries
Common-law marriage recognition varies across the world. In the US, all jurisdictions recognize common-law marriages that were validly contracted in the originating jurisdiction. Eight states in the US, plus Washington, D.C., allow couples to establish new common-law marriages. These include Colorado, Kansas, Montana, and Texas.
USCIS recognizes common-law marriages for naturalization purposes if the marriage was valid and recognized by the state in which it was established. This applies even if the application is filed in a jurisdiction that does not recognize common-law marriage.
Canada does not have the institution of common-law marriage, but informal cohabitation relationships are recognized for certain purposes, creating legal rights and obligations.
In the UK, England abolished clandestine or common-law marriages in the Marriage Act of 1753. However, English law does recognize what has become known as "common-law marriage" in limited contexts, such as marriages contracted during the Second World War in prisoner-of-war camps. Scotland does not recognize common-law marriage, but it had a type of irregular marriage called "marriage by cohabitation with habit and repute" until 2006.
Australia does not recognize common-law marriage as understood under common law. However, since 2009, de facto relationships have been recognized in the Family Law Act, applicable in states that have referred their jurisdiction to the Commonwealth.
Ireland does not recognize common-law marriage, but the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 gave some rights to unmarried cohabitants.
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Rights and benefits of common-law marriage
Common-law marriage is a legal concept that allows couples to be considered married without having formally registered their union with the state. It is a way for couples to be recognised as married without a formal ceremony or marriage license. The original concept of a "common-law" marriage is one that is considered valid by both partners but is not formally recorded with a state or religious registry.
The rights and benefits of 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 and provide similar rights and benefits to traditional marriages. Here are some of the potential rights and benefits of common-law marriage:
- Tax Benefits: Recognised common-law spouses may be exempt from certain taxes, such as the gift tax for gifts given to each other. They may also enjoy unlimited marital exemptions for their estate up to the federal estate tax limit and claim deductions for mortgage interest if they co-own a house or have children.
- Healthcare Benefits: Common-law spouses may be entitled to healthcare benefits, including health insurance coverage and hospital visitation rights.
- Inheritance Rights: In some jurisdictions, common-law spouses have the right to inherit their partner's property and assets, even if there is no will. They may also be able to claim a portion of the estate if they are left out of the will.
- Spousal Support: Common-law spouses may have the right to receive spousal support or alimony in the event of a divorce or separation.
- Child Custody: Common-law parents may have rights regarding child custody and support in the event of a divorce or separation.
- Property Rights: Common-law spouses may have rights in property division upon separation, although this can vary depending on the specific laws in each jurisdiction.
- Social Security: In some states, common-law spouses who meet certain requirements may be eligible for Social Security benefits, including spousal retirement benefits.
- Other Benefits: Common-law spouses may also have access to other benefits, such as the right to make emergency medical decisions for their partner, access to personal records, and rights regarding leave and time off work.
It is important to note that the recognition of common-law marriage and the specific rights and benefits associated with it can vary significantly depending on the jurisdiction. It is always best to consult with a legal professional to understand the specific requirements and protections in your area.
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Frequently asked questions
A common-law marriage is a marriage that is established without legal formalities like taking out a marriage license or having a religious or civil ceremony. It is also known as an informal marriage.
Common-law marriage is recognized in eight states in the U.S. (plus Washington, D.C.), Canada, and the U.K. However, it is not recognized in all states in the U.S. and some countries like Australia, Ireland, and Louisiana do not recognize common-law marriage.
The requirements for a common-law marriage vary by location but typically include the couple's intention to be married, cohabitation, and holding themselves out publicly as a married couple. Some states also require consummation.
Proving a common-law marriage can be difficult as there is no single fact that establishes it. Courts will consider various types of evidence, including how the couple refers to or labels each other, and whether they have applied for benefits as a married couple.
