Anaya Nolan
Common-law marriage, also known as non-ceremonial marriage, has been gradually abolished in Western nation states over the centuries. Common-law marriage is a union that is considered valid by both partners, but not formally recorded with a state or religious registry, nor celebrated in a formal civil or religious service. In the United States, the majority of states have abolished common-law marriage by statute, however, some states still recognize it, with varying requirements. The abolition of common-law marriage in the United States has been influenced by a variety of factors, including the increase in population between the Civil War and the end of World War I, changing societal norms, and the desire for a more formalized approach to marriage, including the importance of marriage licenses and legal documentation.
| Characteristics | Values |
|---|---|
| Common-law marriage abolished in California | 1895 |
| Common-law marriage abolished in Alabama | 2017 |
| Common-law marriage abolished in Scotland | 2006 |
| Common-law marriage abolished in England | 1753 |
| Common-law marriage abolished in Massachusetts | before 1820 |
| Common-law marriage abolished in Hawaii | 1893 |
| Common-law marriage abolished in Maine | 1652 |
| Common-law marriage abolished in Pennsylvania | 2005 |
| Common-law marriage abolished in South Carolina | after 2014 |
| Common-law marriage abolished in Rhode Island | after 2014 |
| Common-law marriage abolished in Colorado | N/A |
| Common-law marriage abolished in New Hampshire | N/A |
| Common-law marriage abolished in Oklahoma | N/A |
| Common-law marriage abolished in Guam | N/A |
| Common-law marriage abolished in Commonwealth of the Northern Mariana Islands | N/A |
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What You'll Learn
Common-law marriage in California
California does not recognise common-law marriages as a legal form of matrimony. The state abolished common-law marriages in 1895, and since then, couples have been required to obtain a marriage licence and formally register their union with the state to be considered legally married. This means that even if a couple meets the requirements of what is technically a common-law marriage in other states, it is still not recognised as a legal marriage in California.
However, California will recognise common-law marriages formed in other states where it is legal. For example, if a couple meets all the requirements and is considered legally married through common law in Oklahoma, the California government recognises this and still sees the couple as married. If a couple has a valid common-law marriage from another state and then moves to California, their marriage will generally be recognised as valid in California.
In the case of Marvin v. Marvin (1976), the California Supreme Court ruled that while the state does not recognise common-law marriages, unmarried couples who live together and share property or assets may be able to establish certain rights and obligations based on implied or express contracts. This case law provides some protection for couples in long-term, committed relationships who have not formally married.
To be legally married in California, couples must obtain a marriage licence and have a formal ceremony performed by an authorised officiant. California allows domestic partnerships between any couples who wish to have one, which can provide certain benefits usually associated with marriage, such as being able to receive a partner's state-administered health benefits.
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Common-law marriage in Alabama
Common-law marriage, also known as non-ceremonial marriage, is a marriage that results from the couple's agreement to consider themselves married, followed by cohabitation, rather than through a statutorily defined process. Common-law marriage has been gradually abolished in Western nation states over the centuries.
In Alabama, common-law marriages that began before January 1, 2017, are still considered valid and are treated for all legal purposes as a regular marriage. However, since 2017, couples seeking marriage in Alabama must go through a legal marriage process, which includes a ceremony solemnized by a qualified official and the submission of marriage documents to a probate court.
To prove a common-law marriage in Alabama, several factors are considered, including whether the couple lived together, referred to each other as husband and wife, and were considered a married couple by their community. These factors help a judge decide if the couple intended to be married. Proving a common-law marriage is often challenging, and legal advice should be sought for specific situations.
Common-law marriages in Alabama can only be ended by divorce or the death of one of the spouses. These marriages are legally binding, and the spouses have the same rights and responsibilities as couples married through a traditional ceremony, including the division of property, custody issues, and inheritance rights.
The decline of common-law marriage in Alabama and other states can be attributed to various factors, including the increasing acceptance of cohabitation, the convenience of obtaining a marriage certificate, and the difficulty in proving common-law marriages, especially during divorce, inheritance, and custody disputes.
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Common-law marriage in medieval Europe
In medieval Europe, marriage was governed by canon law, which recognised a valid marriage when the parties stated that they took each other as husband and wife, even without witnesses. The Catholic Church, however, forbade clandestine marriages at the Fourth Lateran Council in 1215, requiring all marriages to be announced in a church by a priest. This marked a shift towards more formalised marriage processes.
The Church played a pivotal role in defining and regulating marriage during this era. It considered marriage a sacrament, mirroring the eternal union between Christ and the Church. As a result, the Church staunchly opposed divorce, rendering marriages indissoluble once validly contracted. Couples seeking to end their marriages had to pursue annulments, which declared that a valid marriage had never existed based on specific grounds outlined in canon law.
The age of consent varied according to local customs, but the Church generally set it at 12 for girls and 14 for boys, leading to prevalent child marriages, especially among the nobility. While marriages were often arranged before individuals reached these ages, consummation occurred later. Instances of girls as young as seven being betrothed to older men were also documented.
During the medieval period, Christians in western Europe could marry simply by expressing their consent to each other. However, proving the existence of a marriage could be challenging. The concept of "common-law marriage" refers to a marriage considered valid by the partners but lacking formal recognition in state or religious records or ceremonies. While the origins of common-law marriage are uncertain, it is arguably the original form of marriage, where a couple cohabits and holds themselves out as a married couple.
Over time, common-law marriage has been gradually abolished in Western nation-states. The Council of Trent, from 1545 to 1563, introduced more stringent requirements for marriage, mandating the presence of specific witnesses, such as the pastor of the parish or the local bishop. These canons, however, did not apply to Protestants or the Eastern Orthodox. The increasing societal acceptance of cohabitation and the convenience of obtaining marriage certificates have contributed to the decline of common-law marriage.
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Common-law marriage 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 survives only in a few U.S. states and the District of Columbia, along with some provisions of military law. The origins of common-law marriage are uncertain, but it is arguably the original form of marriage, where a couple takes up residency together, holds themselves out to the world as a married couple, and otherwise behaves as a married couple.
In the United States, common-law marriage was influenced by English common law and the harsh conditions of colonial America, where the presence of few clerics or civil officials necessitated a substitute for ceremonial marriage. Over time, as the population increased and societal norms shifted, states began abolishing common-law marriage as it was no longer deemed necessary. As of 2022, common-law marriages are recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire have limited recognition, with varying requirements.
For example, Utah requires validation by a court or administrative order, including conditions such as the legal age and consent, the capacity to enter a solemnized marriage, cohabitation, and holding themselves out as husband and wife. New Hampshire recognizes common-law marriage for probate purposes, requiring one spouse to be deceased. Oklahoma's status is unclear, with conflicting reports of abolition in the mid-1990s, but some state entities still recognize it.
The recognition of common-law marriages can lead to complexities, especially when it comes to divorce, inheritance, custody, and property matters. The term "common-law marriage" is often used colloquially to refer to cohabiting couples, creating public confusion regarding legal rights. The United States Department of Labor has extended family and medical leave rights to same-sex marriages or common-law marriages entered into in states where they are legally recognized, regardless of the employee's current state of residence.
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Reasons for abolishing common-law marriage
Common-law marriage has been gradually abolished in Western nation states over the centuries. Here are some reasons for its abolition:
Unpredictable and convoluted outcomes
Common-law marriages are no longer relevant in modern times. The outcomes of common-law marriages are unpredictable and convoluted, and the rationale to support them no longer exists. The South Carolina Supreme Court, for instance, abolished common-law marriage in 2019, stating that the "foundations have eroded with the passage of time".
Difficulty in proving marriage
Common-law marriages can be difficult to prove. With the increased societal acceptance of cohabiting as single persons, and the increased convenience of obtaining a marriage certificate, proving a common-law marriage has become more challenging. This can create legal complications, especially during divorce, inheritance, custody, and other issues.
Morality
The primary basis for common-law marriage was morality, aiming to prevent couples from living in sin and raising illegitimate children. However, societal attitudes have evolved, and acceptance is no longer conditioned on marital status or the legitimacy of children. The paternalistic motivations underlying common-law marriage are no longer considered sufficient to outweigh the offenses to public policy that the doctrine generates.
Impact on couple formation and female labour supply
Research suggests that common-law marriage may discourage couple formation, particularly among women without a college education. These women are more likely to be poor and dependent on government welfare services. Additionally, common-law marriage may impact the female labour supply, as it can affect the household production work and wage employment of women within these relationships.
Inconsistency with modern legal frameworks
Common-law marriage is inconsistent with modern legal frameworks. In the US, for example, divorce laws imply that the wealthier spouse, often the male, will be required to make payments to the female spouse in the event of a divorce. This can create financial disincentives for wealthier individuals to form couples in jurisdictions where common-law marriage is available.
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Frequently asked questions
Common-law marriage has been gradually abolished in Western nation states throughout the centuries. In the US, the majority of states have abolished it by statute, but it is still recognised in some states. Alabama abolished common-law marriage in 2017, and Pennsylvania in 2005. California abolished it in 1895.
Common-law marriage, also known as non-ceremonial marriage, is a marriage that results from the parties' agreement to consider themselves married, followed by cohabitation, rather than through a statutorily defined process. It is a legal concept that recognises a marriage between partners who have not obtained a marriage license or participated in a formal ceremony.
Common-law marriages are being abolished because they are inefficient, confusing, and can lead to costly litigation in the event of a divorce. The system creates uncertainty and can be expensive when determining the status of a couple with so many variables of proof.
Common-law marriage is still recognised in Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia. Outside of the US, common-law marriage was recognised in Scotland until 2006, and it may be recognised in the Commonwealth of the Northern Mariana Islands as customary marriage.
