Cecily Zamora
A common-law marriage is a legally recognised union between two people who have not obtained a marriage license or participated in a formal ceremony. Common-law marriages are currently recognised in some form in nine US states and the District of Columbia, as well as in Canada, where informal cohabitation relationships are recognised for certain purposes. In the past, common-law marriages were also recognised in England and Wales until the Marriage Act of 1753, which did not apply to Britain's overseas colonies at the time, including what are now the United States and Canada.
| Characteristics | Values |
|---|---|
| Countries that recognize common-law marriage | United States, Canada |
| States in the US that recognize common-law marriage | Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, New Hampshire (limited recognition), Utah (limited recognition), South Carolina (limited recognition) |
| US territories that do not recognize common-law marriage | Guam, the Commonwealth of the Northern Mariana Islands |
| States in the US that do not recognize common-law marriage | Alabama, Georgia, Idaho, Pennsylvania, Ohio (only recognizes marriages before Oct 10, 1991) |
| Requirements for common-law marriage | Legal capacity to marry (usually over 18 and of sound mind), cohabitation, representation of being married in the community, joint finances, living together contract |
| Benefits of common-law marriage | Social security, medical benefits, tax benefits, spousal support, child custody, inheritance |
| Ending a common-law marriage | Requires a divorce in states where the practice is recognized |
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What You'll Learn
Common-law marriage in the United States
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. The term "common-law marriage" is often used incorrectly to describe cohabitation or other legally recognised relationships, which can create confusion. The original concept of a "common-law marriage" is a relationship that is considered valid by both partners, but is not formally recorded with a state or religious registry, nor celebrated in a formal civil or religious ceremony.
The origins of common-law marriage are uncertain, but it is argued to be the original form of marriage, where a couple took up residency together, presented themselves as a married couple, and behaved as such. It is also said to have originated in colonial America, where there were few clerics or civil officials to perform marriage ceremonies, and this need expanded as settlers moved into sparsely populated regions of the West.
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. Outside of the contiguous United States, the Territory of Guam and the Commonwealth of the Northern Mariana Islands do not recognise common-law marriage.
Specific state or jurisdiction requirements must be considered for a common-law marriage to be recognised. For example, in states that recognise common-law marriages, couples must meet certain requirements to gain marital status, including living together for a specified amount of time. Additionally, in the case of a separation, a divorce must be obtained.
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Common-law marriage in Canada
The concept of common-law marriage differs from its original meaning, which refers to a relationship that is considered valid by both partners but is not formally recorded with a state or religious registry, nor celebrated in a formal civil or religious ceremony. In Canada, while some provinces may grant couples in marriage-like relationships certain rights and responsibilities akin to those of a legal marriage, these couples are not legally considered married. They may be legally defined as "unmarried spouses" and treated similarly to married spouses in certain contexts, such as taxes and financial claims.
In Canada, there is no centralised definition of a common-law relationship, and the criteria vary across provinces. For example, 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 for common-law recognition can differ depending on the specific issue being addressed. In Saskatchewan, a couple is considered common-law after cohabiting for at least two continuous years, while in British Columbia, it is also two years or less if the couple has a child together. Quebec refers to common-law relationships as "de facto unions," and for tax purposes, a couple is considered common-law after living together for at least two years. Notably, in Quebec, unless legally married, a surviving spouse will not inherit anything from their deceased partner.
In Alberta, a common-law relationship is called an "Adult Interdependent Relationship" and requires either a formal agreement, three years of cohabitation, or a child together. Manitoba's definition includes the requirement of registering the 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 legal process for ending a common-law relationship in Canada. Typically, separation involves ending cohabitation and annulling any cohabitation agreements.
The rights and protections afforded to common-law spouses in Canada vary depending on the province and the specific legislation in question. For example, in Ontario, the Supreme Court of Canada held that the distinction between married and cohabiting spouses is not discriminatory, as married couples consciously choose to enter into a marriage. However, remedies are available for cohabiting spouses through constructive and resulting trusts, which allow non-titled spouses to gain rights to certain assets, such as the matrimonial home.
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Common-law marriage in Australia
Australia does not have common-law marriage as it is understood under common law. Instead, the term "de facto relationships" is used to describe legally recognized relationships that are not formally married. De facto relationships in Australia are governed by a combination of federal and state/territory laws. Since March 1, 2009, de facto relationships have been recognized in the Family Law Act (Commonwealth), which applies in states that have referred their jurisdiction on de facto couples to the Commonwealth. Western Australia, which has not referred its jurisdiction, still has valid state legislation regarding de facto relationships.
De facto relationships in Australia are recognized in many areas of the law, including property adjustment orders, spousal maintenance, and child custody disputes. These relationships may be registered, providing automatic recognition for various legal purposes in some states, such as South Australia. However, there are key differences between registered relationships and marriages. Firstly, marriages are recognized both interstate and internationally, while registered relationships are not. Secondly, marriages cannot end as abruptly as registered relationships, which can be terminated by application without proof of actual separation after 90 days of cooling off.
To be recognized as a de facto couple in Australia, couples must live together in a genuine domestic relationship for two years, even if they do not consider themselves as a de facto couple. De facto relationships can be between heterosexual or same-sex couples and provide most, but not all, of the same rights as married couples. For example, in the case of incapacitation, the de facto partner may not automatically be considered next of kin and able to make decisions on behalf of their partner. Additionally, de facto relationships may not be recognized by overseas courts, and there can be complexities in inheritance and will disputes.
While common-law marriage is not recognized in Australia, the term "common-law marriage" is sometimes used colloquially to refer to cohabiting couples, creating confusion around the legal rights of unmarried partners. It is important to distinguish between de facto relationships and common-law marriage in Australia, as the latter does not confer the same legal rights and protections as a formalized marriage or a recognized de facto relationship.
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Common-law marriage in the United Kingdom
In the United Kingdom, common-law marriage is not recognised as a legal status that provides rights and protections to a couple. This means that even if a couple has lived together for many years, they do not have the same legal rights and protections as a married couple. This is a common misconception, with a 2008 UK poll showing that 51% of respondents incorrectly believed that cohabitants had the same rights as married couples.
The Marriage Act of 1753 abolished clandestine or common-law marriages in England and Wales, requiring marriages to be performed by a priest of the Church of England unless the participants were Jews or Quakers. This Act did not apply to Scotland, which retained its own legal system, or to Britain's overseas colonies, where common-law marriages continued to be recognised in what are now the United States and Canada.
While common-law marriage is not recognised in the UK, there are steps that unmarried couples can take to protect themselves and their assets. Cohabitation agreements can be drawn up to establish the couple's rights and responsibilities towards each other in the event of separation, covering finances, property, and arrangements for any children. These agreements can provide protections similar to marriage, such as equal shares of assets or access to pensions.
In Scotland, the law has differed slightly from the rest of the UK since 2006. Household goods bought during the time a couple lived together are ruled to be jointly owned, and their share is split equally. Additionally, prior to 2006, there was a form of irregular marriage called 'marriage by cohabitation with habit and repute', which could apply to couples in special circumstances.
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Benefits of common-law marriage
Common-law marriage is a legal concept that allows couples to be considered married without undergoing a formal ceremony or obtaining a marriage license. While it is not recognised in all states, common-law marriage does offer several benefits for couples who choose this path.
Firstly, common-law marriage provides a way for couples to have their relationship legally recognised without the need for a formal procedure. This can be especially beneficial for those who do not wish to undergo a traditional ceremony, whether due to personal, religious, or financial reasons. By living together for an extended period and presenting themselves as married to their community, couples can attain the same legal status as formally married couples in certain states.
Secondly, common-law spouses are generally entitled to the same marital rights and responsibilities as formally married couples, including inheritance rights and certain tax benefits. For example, common-law spouses can benefit from estate tax provisions, such as the unlimited marital deduction, which allows for the transfer of assets between spouses without incurring gift or estate taxes. Additionally, common-law spouses may be eligible for spousal retirement benefits, survivor benefits, and disability benefits, depending on the specific laws of their state.
Furthermore, common-law marriage can provide access to employment perks, such as family leave, bereavement leave, and retirement accounts or pension plans offered by an employer. Health insurance policies can also be combined, potentially reducing the amount paid in monthly premiums compared to individual policies.
Lastly, in the context of common-law marriage, couples have the flexibility to define their relationship on their terms. This includes the ability to make decisions regarding shared property, finances, and medical directives without the constraints of a binding contract.
While common-law marriage offers these benefits, it is important to note that it also comes with certain challenges and potential financial complexities. It can be difficult to prove the existence of a common-law marriage, and there may be variations in the rights and protections afforded to common-law couples compared to traditionally married couples. Therefore, it is crucial for couples considering common-law marriage to fully understand the legal implications and take appropriate steps to protect their rights and interests.
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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 marriage is recognised in the United States 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, common-law marriage is recognised in Canada and Scotland.
Common-law spouses who meet their state's requirements are eligible for most of the financial benefits of a married couple, including Social Security. They also enjoy unlimited marital exemptions for their estate up to the federal estate tax limit and can claim deductions for mortgage interest if they co-own a house or have children.
