Cecily Zamora
Common-law marriage, also known as cohabitation, was abolished in Wisconsin in 1917. The state does not recognise cohabitation as a legal marriage, regardless of the duration of cohabitation or the circumstances surrounding it. Couples in a cohabiting relationship in Wisconsin do not have any legal rights or obligations associated with marriage and are not entitled to the same rights as a married couple in regards to marital property, real estate, or custody and placement.
| Characteristics | Values |
|---|---|
| Year common law was abolished in Wisconsin | 1917 |
| Recognition of common-law marriage in Wisconsin | Not recognized |
| Recognition of cohabitation as a legal marriage in Wisconsin | Not recognized |
| Rights of cohabitants to each other's property | No rights without a marriage certificate |
| Rights of cohabitants in case of death or incapacity | No rights without a legal document |
| Child support rights for cohabitants | Rights exist if the child is acknowledged by both parties |
| Division of property in case of separation | Done through a Watts case or a cohabitation agreement |
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What You'll Learn
- Common law marriage was abolished in Wisconsin in 1917
- Cohabiting couples in Wisconsin have no rights to each other's property
- Cohabiting couples must file a Watts case to legally divide property
- Cohabiting couples can protect their rights through written documentation
- Cohabitation agreements can help couples decide how to divide expenses and property
Common law marriage was abolished in Wisconsin in 1917
Common-law marriage, an informal union where a couple resides together and publicly behaves as a married couple, has been gradually phased out in Western nations over the centuries. In the United States, the recognition of common-law marriage varies across states, with 13 states never permitting it and 28 no longer allowing it as of 2025.
Wisconsin is among the states that do not recognize common-law marriage or cohabitation as a legally binding marriage. This change was instituted in 1917, and as a result, couples living together in Wisconsin without a legal marriage license do not possess the customary legal protections associated with marriage. For couples without a legal marriage seeking to safeguard each other in the event of death or illness, consulting a will and estates attorney is advisable.
While Wisconsin does not permit the formation of common-law marriages within its borders, it will acknowledge common-law marriages that were legally established in other states that recognize them. For instance, if a couple legally recognized as common-law married in Texas, a state that upholds such marriages, relocates to Wisconsin, their marriage will still be valid as long as it adheres to Texas law. However, dissolving a common-law marriage in Wisconsin, established in another state, can be complex.
For cohabiting couples in Wisconsin, a Watts case, derived from the Wisconsin Supreme Court case Watts v. Watts, provides civil recourse to litigate issues concerning the division of assets and debts. This process allows one or both partners to pursue legal action under contract law theories to reclaim property from a former partner. Additionally, a cohabitation agreement, similar to a prenuptial agreement, can be drafted with the assistance of a family law attorney to outline how expenses, bills, and property will be divided if the relationship ends.
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![Laws of Wisconsin Relating to Common Schools, [Etc.] Published in Conformity with Law under the Direction of L.D. Harvey, State Superintendent. 1901 [Leather Bound]](https://m.media-amazon.com/images/I/617DLHXyzlL._AC_UY218_.jpg)
Cohabiting couples in Wisconsin have no rights to each other's property
Cohabiting couples in Wisconsin do not have rights to each other's property unless they have a cohabitation agreement in place. Common-law marriage, which treats unmarried couples as if they were married for legal purposes, was abolished in Wisconsin in 1917. Therefore, cohabiting couples in Wisconsin are not entitled to the same rights as a married couple in regards to marital property, real estate, or custody and placement.
Cohabitation Agreements
Cohabitation agreements are similar to prenuptial agreements, except that the parties are not married. In a cohabitation agreement, the parties may decide how to split up expenses and bills and how to divide property if the relationship ends. A cohabitation agreement can help prevent one partner from accruing an equitable ownership interest in the property. It can also reduce conflicts about these issues during a breakup.
Unjust Enrichment Claims
If a cohabiting couple separates, and one partner takes more of the personal property than is fair, the other partner can file an unjust enrichment claim. For example, if one partner takes all the furniture the couple purchased together, it would be unfair for that partner to keep it without paying the other. To prove an unjust enrichment claim, the claimant must show that they worked together with their partner to accumulate property and financial assets, which the other partner has kept in an unreasonable amount.
Partition Actions
If partners co-own vehicles or accounts, one partner cannot just take the property. Partners can buy each other out of their ownership interests in this property, but when they can’t agree, they can turn to the court for a partition action. In a partition action, the court will order that the property in question be sold at a public auction. While this allows a cohabiting couple to fairly divide jointly-owned property, they are unlikely to get fair market value, and both partners would lose their interest in the property.
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Cohabiting couples must file a Watts case to legally divide property
In Wisconsin, common-law marriage or cohabitation was abolished in 1917 and is not recognized as a legal marriage. The state also abolished criminal penalties for cohabitation in 1983. Wisconsin's marital property laws do not apply to unmarried couples. However, this does not mean that rights and obligations do not accrue between an unmarried couple who live together.
Cohabiting couples in Wisconsin who are looking to legally divide their property will need to file what has generally become known as a Watts case. Such cases are known as Watts cases in reference to the parties in a landmark 1987 case involving a cohabiting couple that separated after 12 years.
Watts cases do not regard the cohabitant relationship as a marriage but provide a similar means of resolving disputes over money and property. Unlike divorces, Watts cases are civil actions and do not address child placement or spousal support issues. Both parties need to present evidence of their stake in whatever is being disputed.
In the 1987 case of Watts v. Watts, the plaintiff alleged that during the parties' relationship, the business and personal wealth of the couple increased due to her domestic and business contributions. She also alleged that she never received any compensation for these contributions and that the defendant indicated to her that he considered her to be his wife and that she would share equally in the increased wealth. The plaintiff asserted that since the breakdown of the relationship, the defendant has refused to share equally with her the wealth accumulated through their joint efforts or to compensate her in any way for her contributions to the relationship. The plaintiff's first legal theory to support her claim against the property accumulated during cohabitation is that the plaintiff, defendant, and their children constitute a "family," thus entitling the plaintiff to bring an action for property division. The plaintiff's third legal theory, which the court recognized, was that she and the defendant had a contract to share equally the property accumulated during their relationship.
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Cohabiting couples can protect their rights through written documentation
In Wisconsin, common-law marriage, or cohabitation, was abolished by state law in 1917 and is therefore not recognized in the state. The duration of cohabitation and the circumstances surrounding it are irrelevant. As such, cohabiting couples in Wisconsin do not have the same legal protections as married couples and will need to take legal steps to protect their rights.
Additionally, cohabiting couples can make a will to ensure their wishes are carried out after their death. This is especially important as, unlike married couples, they are not automatically entitled to their partner's state pension or assets without incurring tax. By making a will, they can specify their intentions and reduce the tax burden on their partner.
Furthermore, if a cohabiting couple owns property together, they can transfer the property into a joint tenancy, ensuring that the surviving partner automatically inherits the property in the event of the other's death. This can be done with the help of a solicitor.
In the case of children, parental responsibility is automatically granted to the father if he is listed on the child's birth certificate. If the birth was registered before December 1, 2003, the father will not have automatic parental responsibility even if he is listed on the birth certificate. In the event of a separation, both parents are legally obligated to provide child support, regardless of whether they have parental responsibility.
Overall, while cohabiting couples do not have the same rights as married couples, they can take proactive steps through written documentation to protect their interests and ensure a measure of legal protection. These steps include cohabitation agreements, wills, joint tenancy agreements, and establishing parental responsibility.
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Cohabitation agreements can help couples decide how to divide expenses and property
In Wisconsin, common-law marriage or cohabitation was abolished by state law in 1917. The state does not recognize cohabitation relationships as legally binding marriages, regardless of the duration of cohabitation or the circumstances surrounding it.
Cohabitation agreements are useful tools for couples who choose to live together without getting married. They are especially important in states like Wisconsin, where cohabitation is not recognized as a legal marriage. A cohabitation agreement can help couples in a few key ways:
Division of Expenses
Couples can outline their contributions toward expenses during the relationship. This includes sharing expenses like a cell phone plan, internet service, cable TV fees, food, utilities, and other household and living expenses. They can also decide whether to have joint bank accounts or maintain separate accounts.
Division of Property and Assets
The agreement can clarify ownership and the division of assets and property in the event of a breakup. This includes any property bought, inherited, or received as a gift during the relationship, as well as personal property like vehicles and household goods.
Protection of Rights
A cohabitation agreement establishes the rights and responsibilities of both parties, providing clarity and security for unmarried couples. It can address issues such as financial responsibilities, retirement funds, and any other important matters the couple wishes to clarify.
Avoid Legal Problems
Without a cohabitation agreement, disputes over property and debts can lead to expensive court battles. A written agreement protects both parties and honors their intentions, reducing the chances of misunderstandings and legal problems in the future.
In summary, cohabitation agreements are beneficial for couples who want to live together without marrying as they provide a clear framework for managing finances, property, and potential disputes. They offer protection and peace of mind, especially in states like Wisconsin, where cohabitation does not grant the same legal rights as marriage.
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Frequently asked questions
Common law, or cohabitation, was abolished in Wisconsin in 1917.
Common law marriage is a relationship between two consenting adults who have lived together for a period of time. The specific amount of time varies from state to state.
No, common law marriage is not recognised in Wisconsin. Cohabitation, regardless of the duration, is not recognised as a legal marriage in Wisconsin.
A Watts case is a civil recourse that parties can utilise to litigate issues regarding accumulated asset and debt division.
