Kara Sears
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 a statutorily defined process. Common-law marriage is not recognized in all jurisdictions, and even in places where it is recognized, there are specific requirements that must be met. For example, in the United States, common-law marriage is only recognized in certain states, and the requirements vary. Generally, both partners must have the legal capacity to marry, intend to be married, and hold themselves out as a married couple to their community. While cohabitation is a requirement, there is no statutory requirement for the length of time a couple needs to live together. The idea that a common-law marriage is established after seven years of cohabitation is a myth.
| Characteristics | Values |
|---|---|
| Common-law marriage recognition | Recognized in Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Texas, Utah, the District of Columbia, and some other states before a certain date |
| Common-law marriage requirements | Cohabitation, intention to be married, holding out to the public as a married couple, legal capacity to marry |
| Rights of common-law partners | Same rights as a married couple in states that recognize common-law marriage; no automatic protections for property, compensation, or financial support in case of a breakup |
| Property rights | Items owned before cohabitation remain separate property; items bought with joint funds are usually jointly owned; wedding gifts are considered individual property |
| Next of kin | Spouse has authority to act as next of kin; hospitals recognize spouses and close blood relatives |
| Benefits | Social Security benefits, spousal benefits, and widow's benefits may be available to economically dependent partners |
| Legal recognition | May need to provide legal documents to prove common-law marriage |
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What You'll Learn
Common-law marriage recognition in different countries/states
A common-law marriage, also known as a non-ceremonial marriage, is a marriage that results from the couple's agreement to consider themselves married, followed by cohabitation, without a statutorily defined process. Common-law marriages are not recognized in all jurisdictions, but those that do will typically respect the validity of such a marriage lawfully entered in another state or country.
United States
In the United States, common-law marriages are permitted in some states, including Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia. However, the number of states recognizing common-law marriages has dwindled over time. Alabama, for example, abolished common-law marriage in 2017, but marriages contracted before this date are still valid. The status of common-law marriage in Utah is also unclear, with conflicting information from government and legal websites.
United Kingdom
In England and Wales, couples who live together are sometimes referred to as common-law partners, but this term simply refers to cohabitation. While common-law marriage is not recognized, couples can formalize their status through a cohabitation contract or living together agreement, outlining their rights and obligations.
Australia
Australia does not recognize common-law marriage, but de facto relationships, or domestic partnerships, are recognized in the Family Law Act (Commonwealth) and are applicable in most states.
Scotland
In Scotland, common-law marriage does not exist. However, until 2006, there was a form of irregular marriage called 'marriage by cohabitation with habit and repute', which was recognized in certain circumstances.
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Legal rights of unmarried partners in a common-law marriage
The legal rights of unmarried partners in a common-law marriage vary depending on the jurisdiction. Common law marriage can change the marital status of an unmarried couple to legally married, even without a formal wedding ceremony or marriage license. However, not all states recognize common-law marriage.
In states that do recognize common-law marriage, couples may be entitled to similar rights as married couples, including spousal benefits, estate planning, and potential claims for spousal support and property division. For example, in Colorado, Iowa, and Rhode Island, common-law marriage is permitted. On the other hand, states like Alabama, Idaho, and Indiana only allow common-law marriage before a certain date.
Unmarried couples in a common-law marriage may need legal documents to secure similar rights as married couples. These documents include a Power of Attorney, Health Care Directive, Cohabitation Agreement, and Last Will. These agreements can outline separate and shared assets, debt obligations, and spousal support payments in the event of a breakup.
It is important to note that dissolving a common-law marriage is similar to a legal divorce, and the same steps must be followed. Additionally, unmarried partners do not have automatic inheritance rights, and each partner retains individual rights over property titled in their name. Jointly titled property is co-owned, and disputes are typically resolved through contractual principles or equitable remedies.
Regarding the family home, if one partner is not a tenant and needs to stay in the home, they should consult a family law solicitor. A surviving partner may have the right to continue living in the home, regardless of whose name is on the tenancy agreement, unless a court has ordered otherwise.
In summary, the legal rights of unmarried partners in a common-law marriage depend on the state's recognition of such marriages and the specific legal documents in place. Common-law married couples may have rights similar to married couples in some states, but they may need additional legal protections to secure these rights fully.
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Requirements for a common-law marriage to be recognised
The requirements for a common-law marriage to be recognised vary depending on the jurisdiction. In some places, common-law marriages are not recognised at all.
United States
Common-law marriage is recognised in the United States, although the recognition varies by state. Some states, like Colorado, Iowa, and Rhode Island, allow common-law marriage. Other states like Alabama, Idaho, and Indiana only allow common-law marriage before a certain date. Additionally, some states have never permitted common-law marriage, while others no longer permit it. All states, however, recognise validly contracted foreign common-law marriages.
To have a common-law marriage recognised in the United States, couples must meet certain requirements, including:
- Both partners must have the legal right or "capacity" to marry. This typically means they must be at least 18 years old, of sound mind, and not already married to other people.
- Both partners must intend to be married and behave as a married couple, holding themselves out as a married couple to friends, family, and the public.
- The couple must live together (cohabitation) for a certain amount of time, although the length of time varies and is considered on a case-by-case basis.
United Kingdom
In the United Kingdom, common-law marriage is not recognised in England, Wales, or Scotland. The term "common-law marriage" is used to refer to unmarried, cohabiting heterosexual relationships, and these couples do not have the same legal rights as married couples. However, couples who live together can formalise aspects of their status by drawing up a legal agreement called a cohabitation contract or living together agreement.
Other Jurisdictions
Common-law marriage is recognised in some form in other jurisdictions, including Israel, Kuwait (in limited cases), and the Commonwealth of the Northern Mariana Islands (in the form of customary marriage). The recognition and requirements for common-law marriage vary in each jurisdiction, so it is important to refer to the specific laws and regulations in the relevant jurisdiction.
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The history of common-law marriage
In the context of common-law marriage, a couple is considered legally married if they live together for a significant period and present themselves as married to others. There is no specified time frame for a common-law marriage to take effect, but it needs to be significant. The longer a couple lives together, the stronger their case is for common-law marriage. Both partners must be at least 18 years old, of sound mind, and cannot already be married to other people. They must also intend to be married and behave as a married couple, holding themselves out to friends, family, and the public as such.
Common-law marriage was a way to provide the legal protections of marriage to people who, for various reasons, could not go through the traditional marriage process. For example, in the early days of the United States, the act of travelling to a recorder to file marriage paperwork, find a priest, etc., could be financially and logistically impossible for people living in remote areas. Additionally, there was a stigma associated with having a child out of wedlock, and common-law marriage removed that stigma.
Today, common-law marriage is recognized by only a few states in the U.S., including Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. Washington, D.C., also recognizes common-law marriage, even though it is not a state. However, most states no longer recognize common-law marriage, and if you move to one of these states, you will not be considered "unmarried". While the popularity and recognition of common-law marriage have declined, it remains a part of the legal landscape in certain parts of the country.
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Common misconceptions about common-law marriage
The concept of 'common-law marriage' is a common misconception. While it is true that in some places, unmarried couples who live together for a certain period are granted some of the same rights as married couples, the law around common-law marriage is complex and inconsistent. Here are some misconceptions about common-law marriage:
Misconception: Living together as a couple for a certain number of years creates a common-law marriage.
Fact: In most states, simply living together for a certain period does not create a common-law marriage. There are usually additional requirements that must be met, such as publicly presenting as a married couple and agreeing to be married.
Misconception: Common-law marriage is recognised everywhere.
Fact: Common-law marriage is not recognised in all states, and the requirements vary in the states that do recognise it. Washington State, for example, does not recognise common-law marriage. However, it does acknowledge that long-term committed relationships may be entitled to a limited number of the same rights as married couples.
Misconception: Common-law marriage is a straightforward alternative to legal marriage.
Fact: Common-law marriage does not offer the same legal protections as a legal marriage, and it can be difficult to prove whether a common-law marriage exists. It is also important to note that, in the event of a breakup, the law may treat it similarly to a divorce, which can complicate the process.
Misconception: Common-law marriage grants the same inheritance rights as legal marriage.
Fact: In the absence of a will, a surviving common-law spouse may not inherit in the same way as a legal spouse. While they may be able to inherit if they can prove a committed intimate relationship, their rights in this situation remain limited.
Misconception: Common-law marriage grants the same parental rights as legal marriage.
Fact: Parental rights are determined by one's status as a parent, not by the status of the relationship. Biological or adoptive parents have the same legal rights to their children as their partner, regardless of whether they are common-law or legally married.
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Frequently asked questions
Common-law marriage, also known as non-ceremonial marriage, is a marriage that occurs when two people who are legally capable of being married and intend to be married, live together as a married couple and hold themselves out to the world as a married couple.
The requirements for a common-law marriage vary depending on the state or country. In general, both partners must have the legal capacity to marry, intend to be married, and live together for a certain period of time.
People in common-law relationships may not have the same protections as married couples. For example, they may not have a right to the family residence, a division of property, or support payments from their partner.
Living together is a requirement for a common-law marriage. However, there is no statutory requirement for the length of time a couple needs to live together, and this is considered on a case-by-case basis.
Yes, same-sex couples can be common-law married in states or countries that recognize common-law marriage and same-sex marriage.
