Gavin Howe
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 is legally recognised in a few states and the District of Columbia. Common law marriages offer several benefits, including legal recognition of the relationship, insurance benefits, the ability to file joint tax returns, and inheritance benefits. Each state has its own rules that need to be met for a couple to qualify for legal protection and benefits. For example, in Texas, merely cohabiting will not make a couple informally married under state law, but in New Hampshire, a couple who cohabits and acknowledges each other as spouses for three years will be considered legally married.
| Characteristics | Values |
|---|---|
| Number of states recognizing common law marriages | 7 or 9 states and the District of Columbia |
| States that recognize common law marriages | Alabama (before Jan 1, 2017), Florida (before Jan 1, 1968), Georgia (before Jan 1, 1997), Indiana (before Jan 1, 1958), Ohio (before Oct 10, 1991), Pennsylvania (before Jan 1, 2005) |
| States with limited common law marriage recognition | Alabama, Florida, Georgia |
| States that recognize domestic common-law marriage after the fact for limited purposes | 2 |
| States that recognize common-law marriage for probate only | New Hampshire |
| Requirements for common-law marriage | Cohabitation, presenting as spouses, viewed as spouses by the community, joint finances, neither partner married to someone else |
| Benefits of common-law marriage | Legal recognition, insurance benefits, joint tax returns, inheritance benefits, social security benefits, spousal support, child support, child custody, prenuptial agreements |
| Drawbacks of common-law marriage | Difficult to prove, problems of proof if not domiciled in the state, no difference in divorce proceedings |
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What You'll Learn
Common-law marriage in the US
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 is currently only recognised in a handful of states. These include Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia, where common-law marriages have been recognised since 1931. Additionally, Utah, South Carolina, and New Hampshire have limited recognition of common-law marriage.
The term common-law marriage is often used colloquially to refer to cohabiting couples, regardless of their legal rights. However, the legal concept of common-law marriage is more complex and varies from state to state. For example, in Texas, a couple can cohabit for 50 years, but if they never agree to be married or hold themselves out to the public as married, they are not considered informally married under Texas law. On the other hand, in New Hampshire, cohabiting couples who acknowledge each other as husband and wife and are generally reputed to be such for three years are deemed to be legally married.
The recognition of common-law marriages has a long history in the US, dating back to colonial times when there were few clerics or civil officials to perform ceremonial marriages. The origins of the term are uncertain, but it is arguably the original form of marriage, where a couple took up residency together and held themselves out as a married couple. Over time, the recognition of common-law marriage has been gradually abolished in Western nation states.
The specific requirements for a common-law marriage to be recognised vary by state. For example, in Texas, couples can establish an "informal marriage" by filing a legal "Declaration of Informal Marriage" with the County Clerk, which is then recorded as formal evidence of marriage. This procedure does not require a formal wedding ceremony but provides legal recognition of the marriage.
The legal implications of common-law marriage can be significant, as individuals in these marriages may be granted the same rights and obligations as spouses in a traditional marriage, especially upon the death of a partner or in the event of a separation. However, it is important to note that most states in the US do not legally recognise common-law marriages, and the specific laws and requirements can change over time.
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Common-law marriage in the UK
Common-law marriage is the idea that cohabiting couples have the same legal rights as couples who are married or in a civil partnership. Despite popular belief, common-law marriage does not exist in the UK, including England, Wales, and Scotland. While Scotland recognizes basic rights for cohabiting couples, common-law marriage is no longer applicable in England and Wales.
The history of common-law marriage dates back centuries to medieval times. It was brought to America by English settlers, and while it is no longer widely recognized, it is still valid in a few US states, each with its own unique rules and requirements. These include the District of Columbia, where it has been recognized since 1931, and certain Aboriginal nations, such as the Navajo Nation.
In the UK, cohabiting couples do not have the same rights as married couples in the event of separation or death. The surviving partner of an unmarried couple is not automatically entitled to their deceased partner's assets, which will be distributed according to laws beyond their control. This can result in unexpected financial situations and disadvantages, especially if the surviving partner is the financially weaker party.
To address this issue, industry professionals and politicians have proposed introducing common-law marriage or a 'de facto' relationship status in the UK. These proposals aim to provide greater legal protection for cohabiting couples, ensuring fair outcomes while recognizing that cohabitation differs from marriage. However, there has been resistance to these reforms, with concerns about undermining marriage, imposing unwanted rights, and creating legal complexity. As of now, there has been no confirmation of legislative changes in this area.
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Common-law marriage in Canada
In Canada, common-law marriage is recognised differently across provinces. In Nova Scotia, a couple is considered to be in a common-law relationship if they live together in a marriage-like relationship and publicly refer to themselves as partners or spouses. However, the duration of cohabitation required to be considered common-law varies depending on the specific context. For instance, in Saskatchewan, a couple is deemed to be in a common-law relationship after cohabiting continuously for at least two years. On the other hand, in British Columbia, a couple is considered common-law after living together in a marriage-like manner for at least two years or if they have lived together for less than two years but share a child.
In Alberta, a common-law relationship is termed an Adult Interdependent Relationship, which is legally recognised when the couple has lived together in a relationship of interdependence for at least three continuous years or has a child together. Additionally, they must have a formal and valid Adult Interdependent Partner agreement. Manitoba also recognises common-law relationships, requiring the couple to have registered their relationship with the Vital Statistics Agency.
It is important to note that, unlike a marriage that can only be legally terminated through divorce, there is no formal legal process to end a common-law relationship in Canada. Typically, separation involves ending cohabitation and annulling any existing cohabitation agreements.
In terms of legal rights, common-law spouses may face different entitlements compared to legally married spouses. For example, in Quebec, unless you are legally married, your common-law spouse will not be entitled to anything in the event of your death. Generally, across Canada, a common-law partner is only entitled to assets they personally own. However, there are legal remedies available for cohabiting spouses, such as constructive trusts, which allow a spouse who is not on the title of a property to gain rights to it, especially if their contributions are connected to the home, such as staying home with children and performing domestic duties.
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Common-law marriage in Texas
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 only survives in seven U.S. states and the District of Columbia, along with some provisions of military law. Two other states recognize domestic common-law marriage after the fact for limited purposes. Common-law marriage is often used colloquially to refer to cohabiting couples, regardless of their legal rights, which can create confusion regarding the term and the legal rights of unmarried partners.
Common-law marriage is recognized in Texas. To enter into a common-law marriage in Texas, couples must meet three requirements: they must live together, agree that they are married, and hold themselves out to others as a married couple. This means that a couple cannot be considered informally married under Texas law if they do not publicly present themselves as a married couple, even if they have cohabited for an extended period.
While it is not a requirement, 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. If no declaration was filed and there is a dispute as to whether a common-law marriage existed, it may be necessary to go to court to prove the marriage. Texas law places a two-year statute of limitations on these types of proceedings.
Proving a common-law marriage can be important when a relationship is ending and in determining inheritance rights. Under Texas law, all property acquired during a marriage, whether formal or common-law, is considered community property. If a common-law marriage is proven, community property is divided in the same way as if the parties were formally married. This includes debts accumulated during the marriage, which are divided between the spouses. If no common-law marriage is proven, there is no marital property or debts to divide, and the parties will keep their personal property and remain individually responsible for their debts.
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Common-law marriage in Scotland
In Scotland, common-law marriage is not recognised as a legal status. The term 'common-law' husband or wife is often used to describe a couple that lives together without being married or in a civil partnership. However, this term has no legal standing.
While it is not legally recognised, common-law marriage refers to cohabiting couples with certain rights and obligations. In Scotland, cohabitants have legal rights, including the right to apply to the Court for financial provision in the event of the breakdown of a relationship or the death of a partner. The court has discretion in these cases, and the range of orders it can make is more limited than if the couple were married.
To clarify, there was a form of irregular marriage in Scotland called 'marriage by cohabitation with habit and repute', which was recognised for couples who lived together and were believed to be married by their community. This form of marriage was abolished by the Family Law (Scotland) Act 2006, except for relationships established before 4 May 2006.
It is important to note that for a marriage to be legally recognised in Scotland, certain conditions must be met, such as having a ceremony and ensuring both partners are of legal age to marry. Once a legitimate marriage ceremony has been performed, the marriage remains valid until formally ended by a court, regardless of whether the couple lives together.
In summary, while common-law marriage is not a legal status in Scotland, cohabitants do have certain rights and protections under the law. For those seeking to formalise their relationship, a cohabitation contract or living together agreement can outline rights and obligations.
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Frequently asked questions
A common-law marriage is a legally recognized marriage between two people who haven't purchased a marriage license or engaged in a ceremony overseen by an officiant. Common-law marriage is also known as an informal marriage.
Common-law marriages are only recognized in a handful of states and the District of Columbia, along with some provisions of military law. These include Alabama (before 2017), Florida (before 1968), Georgia (before 1997), Indiana (before 1958), Ohio (before 1991), and Pennsylvania (before 2005).
It can be difficult to prove a common-law marriage. Legal documentation supporting your claim is essential, especially when moving to a state that does not recognize common-law marriage. Some conditions that may help prove a common-law marriage include living together for a consistent period, introducing yourselves as a married couple, having joint finances, and not being married to anyone else.
