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Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a legally recognised marriage between two people who have not purchased a marriage license or engaged in a formal ceremony. Common law marriage is permitted in several US states, including Texas, Colorado, Iowa, and Rhode Island. However, the specific requirements for common-law marriage vary from state to state, and not all states address this arrangement with a statute. While some states have abolished common-law marriage, such as Alabama and Illinois, couples who established a common-law marriage in a state that recognises it may still have their union acknowledged if they move to a state that does not permit it.
| Characteristics | Values |
|---|---|
| Number of states that recognize common law marriage in the US | 9 or 11 or 15 |
| States that recognize common law marriage | Colorado, Iowa, Rhode Island, Texas, District of Columbia |
| States that do not recognize common law marriage | Alabama, Georgia, Illinois, Kansas, New Hampshire, Oklahoma |
| Requirements for common law marriage | Legal capacity to marry, intent to be married, behaving as a married couple |
| Other requirements | Time lived together, cohabitation agreement, public declaration of marriage |
| Other names | Non-ceremonial marriage, informal marriage, de facto marriage |
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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 an agreement between two partners to consider themselves married, followed by cohabitation, rather than through a statutorily defined process. Common-law marriages are not recognized in all jurisdictions, but those that do not permit them will typically respect the validity of such marriages lawfully entered in another state or country.
In the United States, common-law marriages have existed since colonial times, and while most states have abolished them, they are still recognized in a handful of states, including Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia.
The specific requirements for a common-law marriage vary from state to state, but some general requirements include:
- Legal right or "capacity" to marry: Both partners must have the legal capacity to marry, meaning they must be of marriageable age (usually 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, presenting themselves as such to friends, family, and the public. This can include referring to each other as spouse, "husband," or "wife" in public.
- Cohabitation: There is no statutory requirement for the length of time a couple needs to live together, but generally, the longer they live together, the stronger their case is for a common-law marriage.
It is important to note that even in states where common-law marriages are recognized, time is usually not the most important factor. Instead, it is how a couple presents themselves, their living arrangements, and how they have commingled financially and in other aspects of their lives that make the difference.
If you are unsure whether you meet the requirements for a common-law marriage, it is best to consult an experienced family law attorney in your state.
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States where it applies
Common law marriage, also known as non-ceremonial marriage, is a legally recognized marriage between two people who have not purchased a marriage license or engaged in a ceremony overseen by an officiant. Common law marriage is permitted in several U.S. states, with each state having its own requirements that couples must meet.
Common law marriages are now only recognized in a handful of states, with heavy restrictions. Some of the states that recognize common law marriages include Colorado, Iowa, and Rhode Island. Texas is another state that recognizes common law marriages, also known as informal marriages. In Texas, couples can register their common law marriage by filing a declaration with the county clerk. For couples that choose not to declare their common law marriage, documents such as lease agreements, tax returns, and insurance policies may be requested to "prove" the marriage.
In most states, there is no specific amount of time a couple has to be together to be considered in a common law marriage. Instead, a couple must have the legal ability to marry, intend to marry, and present themselves as a married couple. Generally, the longer a couple lives together, the stronger their case is for a common law marriage.
It is important to note that the specific definitions of what constitutes a common law marriage vary from state to state. As such, it is recommended to consult an experienced family law attorney to understand the specific requirements and validity of a common law marriage in a particular state.
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Rights of common-law spouses
Common-law marriage, sometimes called informal marriage, is a marriage that is established without legal formalities such as taking out a marriage license or having a religious or civil ceremony. It is important to note that the rights of common-law spouses vary depending on the laws of the state or country in which they reside.
In the United States, all jurisdictions recognize common-law marriages that were validly contracted in the originating jurisdiction. However, the absence of legal registration or similar notice of the marriage may make it difficult for couples to prove their relationship as a marriage. Some states, like Texas, provide benefits such as healthcare benefits, hospital visitation rights, the right to make emergency medical decisions, access to personal records, rights in property division upon separation, child custody rights, spousal support rights, inheritance rights, and tax deductions. In New Hampshire, common-law marriage is only recognized for inheriting property from a deceased partner if the couple lived together as a married couple for at least three years.
In Canada, while some provinces may grant couples in marriage-like relationships many of the rights and responsibilities of a married couple, they are not legally considered married. They may be legally defined as "unmarried spouses" and treated the same as married spouses for certain purposes such as taxes and financial claims.
In England, Wales, and Northern Ireland, the term "common-law marriage" is used to refer to unmarried, cohabiting heterosexual couples. However, this is merely a social usage and does not confer any legal rights or obligations on the couple. Unmarried partners may be recognized for certain purposes in legislation, such as means-tested benefits, but in many areas of the law, cohabitants have no special rights.
It is important to note that the recognition and rights associated with common-law marriage can vary by jurisdiction, and individuals should seek legal advice to understand their specific rights and obligations.
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How to prove common-law marriage
Common-law marriage is an informal marriage without a marriage license or ceremony. While it is not recognised in most states, a handful of states still uphold common-law marriages. These include Colorado, Iowa, Rhode Island, and the District of Columbia.
To prove a common-law marriage, couples must satisfy the general marriage requirements in their state. This includes the legal right or "capacity" to marry, which usually means being at least 18 years old, of sound mind, and not already married. Both partners must intend to be married and behave as a married couple, referring to each other as spouses in public and presenting themselves as such to friends and family.
Documents that can be used to establish a common-law marriage include:
- Affidavits: a written statement sworn under oath, including personal affidavits and those from friends and family.
- Deeds showing title to property held jointly.
- Bank statements and checks showing joint ownership of accounts.
- Loan documents, leases, mortgages, and promissory notes showing joint financial obligations.
- Credit card accounts in both spouses' names.
- Church records indicating familial status, membership information, baptismal certificates of children, etc.
It is important to note that the specific requirements and recognised documents may vary depending on the state, and it is always recommended to consult an attorney for tailored advice.
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History of common-law marriage
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that occurs outside of the usual statutory requirements, such as a marriage license or ceremony. Instead, it is an agreement between two people who are legally capable of being married and intend to be married, followed by cohabitation and the act of holding themselves out to the world as a married couple.
The history of common-law marriage dates back to America's colonial era, when it was much harder to find a qualified cleric or wedding officiant. As a result, many couples considered themselves married under common law out of necessity, as they had no other option to formalize their union. During this time, marriage came under the jurisdiction of canon law, which recognized as valid a marriage in which the parties stated they took one another as husband and wife, even in the absence of any witnesses. This tradition continued in early America, despite the enactment of the Clandestine Marriages Act in England in 1753, which aimed to regulate marriages and eliminate secret unions.
Over time, the recognition of common-law marriage has declined in the United States, with only a small number of states still upholding it. Today, less than 15% of the U.S. population lives in a state that recognizes common-law marriages. These states include Colorado, Iowa, and Rhode Island, while states like Alabama, Georgia, and New York no longer recognize such marriages.
The specific requirements for common-law marriage vary from state to state, but generally, both partners must have the legal capacity to marry, intend to be married, and present themselves as a married couple to their community. While time is not usually the most critical factor, longer cohabitation periods can strengthen the case for common-law marriage in court.
In conclusion, common-law marriage has a long history, dating back to medieval Europe and America's colonial era. While it was once a common practice, it has faced decreasing recognition in modern times, with only a handful of states in the U.S. still upholding it. Couples considering common-law marriage should be aware of the varying state laws and the potential legal complexities that may arise.
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Frequently asked questions
A common-law marriage is a legally recognised marriage between two people who have not purchased a marriage license or engaged in a ceremony overseen by an officiant. Common-law marriages are not recognised in all states or countries.
The requirements for a common-law marriage vary depending on the state or country. In the US, both partners must have the legal capacity to marry, intend to be married, and hold themselves out to friends, family, and the public as being a married couple. In Texas, couples can register their common-law marriage by filing a declaration with the county clerk.
Common-law spouses who meet their state's requirements are eligible for most of the financial benefits of a married couple, including Social Security. However, the specific rights and protections conferred by a common-law marriage depend on the laws of the state or country in which the marriage is recognised.
