Kara Sears
Common-law marriage, an old concept, is a type of marital arrangement in which a couple takes up residency together, holding themselves out to the world as a married couple, without registering their relationship with the state. In the United States, common-law marriages were once allowed in the majority of states, but most states have since abolished the practice. Tennessee is one such state that does not recognize common-law marriages. However, if a couple establishes a common-law marriage in a state that allows it and then moves to Tennessee, their marriage would be honored by the state.
| Characteristics | Values |
|---|---|
| Common law marriage recognized in Tennessee | No |
| Common law marriage ever recognized in Tennessee | No |
| Common law marriage in Tennessee if married in another state | Yes |
| Divorce for common law marriage in Tennessee | Yes, but additional proofs will be required |
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What You'll Learn
Common law marriage in Tennessee
Common-law marriage is a traditional concept that has been recognised in various states and countries. It involves a couple taking up residency together, holding themselves out to the world as a married couple, and behaving as such. However, in Tennessee, common-law marriage is not recognised. Tennessee law requires a valid marriage license issued by a county clerk and signed by a religious leader or authorised person, such as a spiritual leader or mayor, to solemnise the marriage. While Tennessee does not allow common-law marriages to be formed within its jurisdiction, it does recognise valid common-law marriages established in other states.
The recognition of out-of-state marriages in Tennessee falls under the rule of comity between sister states for practical purposes. This means that if a couple has a valid common-law marriage in another state and then moves to Tennessee, their marriage will still be honoured. However, it's important to note that each state has its own requirements for establishing a common-law marriage, which may include factors like cohabitation, presenting as a married couple, and having the capacity to marry.
If a couple with a common-law marriage recognised in another state wishes to divorce in Tennessee, they must first prove the validity of their marriage. This is because there is no official government certificate to file with the divorce complaint. The spouse filing for divorce must provide additional evidence and testimony to meet the burden of proof, and if this burden is not met, the case will be dismissed as there are no bonds of matrimony for the court to dissolve.
While Tennessee does not allow the formation of new common-law marriages within its borders, it does recognise the validity of such marriages established in other states. This recognition is based on the rule of comity and the practical considerations of honouring valid out-of-state marriages. However, it's important for couples to understand their rights and obligations under varying state laws and consult legal experts for specific guidance.
In summary, common-law marriage in Tennessee is not recognised for couples forming a marital union in the state. However, Tennessee will honour valid common-law marriages established in other states, provided that the couples can prove the validity of their marriage if they seek a divorce in Tennessee.
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Divorce from a common law marriage
Tennessee does not grant common-law marriages. However, if a couple has a valid common-law marriage in a state that permits it, Tennessee will recognize the marriage.
If a spouse with a common-law marriage recognised in Tennessee seeks a divorce, the validity of that marriage must be determined first. Because there is no official certificate from a governmental authority to file with the complaint for divorce, additional evidence and testimony will be needed to prove the common-law marriage is valid. The burden of proof to prove the existence of the common-law marriage falls on the spouse who has filed the complaint for divorce. If that burden is not met with evidence, then the case should be dismissed because there are no bonds of matrimony for the court to dissolve.
When the burden of proving the marriage is met, the State of Tennessee will recognise the marriage and the dissolution proceedings continue as with any other divorce. That is, property is divided, alimony is awarded, child custody is determined, and child support is calculated.
In Tennessee, if divorcing spouses have minor children, a divorce cannot be granted for at least 90 days after the Complaint for Divorce is filed. There is no waiting period in Tennessee to file for divorce. However, the plaintiff spouse (the one who files for divorce) must meet the state's residency requirements. The plaintiff spouse lived in Tennessee when the events that constitute the "grounds" (reasons) for divorce happened. If the grounds for divorce happened outside of Tennessee, and the plaintiff lived out of state at that time, then either spouse must have lived in Tennessee for six months immediately before filing the divorce papers.
Tennessee allows both "no-fault" and "fault-based" divorces. With a fault-based divorce, the plaintiff must show that the other spouse's wrongdoing (such as adultery, cruelty, or abandonment) brought about the collapse of the marriage. In a no-fault divorce, there's no need to blame the other spouse. You may get a no-fault divorce in Tennessee if you can prove "irreconcilable differences", meaning you and your spouse cannot get along and there's no reasonable chance of that changing. Alternatively, you can prove that you and your spouse have lived separately and have not cohabited for at least two continuous years, and you have no minor children.
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Recognition of out-of-state common law marriages
Tennessee is not among the states that recognize common law marriage. In fact, it has never been a common-law marriage state. However, this doesn't mean the state completely disregards common-law marriages that were validly formed in other states. If a couple validly establishes a common-law marriage in one of the states that recognize it and then moves to Tennessee, the state generally recognizes their marriage as valid. For example, if a couple is common-law married in Utah and moves to Tennessee, their marriage would still be valid. However, if the couple moves from Utah before being common-law married, they couldn't become common-law married in Tennessee.
Recognition of valid out-of-state marriages, including common-law marriages, falls under the rule of comity between sister states for purposes of practical convenience and expediency. If a marriage is valid in the sister state where it was established and the Tennessee court asserts jurisdiction, then the spouses may seek a divorce in Tennessee. There isn't a special divorce for those wishing to end a common-law marriage in Tennessee. However, because there isn't an official certificate from a government authority, the couple must provide additional testimony and evidence as proof of the validity of the common-law marriage. The burden of proof to prove the existence of the common-law marriage falls on the spouse who has filed the complaint for divorce.
If that burden is not met with evidence, then the case should be dismissed because there are no bonds of matrimony for the court to dissolve. When the burden of proving the marriage is met, the State of Tennessee will recognize the marriage. To determine whether the complainant carried the burden of proof, the Tennessee court must apply the facts before it to the sister state's common-law marriage law. If the common-law marriage was lawfully entered into, based on a Tennessee judge's interpretation of the sister state's marriage law, then the dissolution proceedings continue as with any other divorce. That is, property is divided, alimony is awarded, child custody is determined, and child support is calculated.
In the United States, only a few states and some Native American tribes still recognize common-law marriages. These states include Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas, and Utah. The criteria for a common-law marriage are that the parties seriously intended to enter into the husband-wife relationship and that their conduct is of such a character as to lead to a belief in the community that they were married.
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History of common law marriage
The origins of common-law marriage are uncertain, but it is arguably the original form of marriage. A couple takes up residency together, holds themselves out to the world as a married couple, and otherwise behaves as a married couple without obtaining a formal marriage license or ceremony.
In the past, the majority of states in the United States allowed common-law marriages. However, most states have since abolished the practice, replacing it with formal, ceremonial marriages performed by individuals such as pastors or magistrates. Only a handful of states, including Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas, and Utah, still recognize common-law marriages.
The recognition of common-law marriages varies across different states in the US. Some states have never permitted it, while others have abolished it. For example, California abolished common-law marriage in 1895, and Alabama abolished it in 2017. The situation in Oklahoma is unclear, with various years reported as the year of abolition.
Tennessee is not among the states that recognize common-law marriage, and it has never been a common-law marriage state. However, Tennessee generally recognizes common-law marriages that were validly formed in other states. If a couple moves to Tennessee after establishing a common-law marriage in a state that recognizes it, their marriage would still be valid in Tennessee, and they would be entitled to the same rights and responsibilities as formally married couples.
When a spouse with a common-law marriage recognized in Tennessee seeks a divorce, the validity of that marriage must first be determined. Additional evidence and testimony are required to prove the existence of the common-law marriage, as there is no official certificate from a governmental authority. If the burden of proof is not met, the case is dismissed, as there are no bonds of matrimony for the court to dissolve. If the common-law marriage is valid, the divorce proceedings continue as with any other divorce, including property division, alimony, child custody, and support calculations.
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Current status of common law marriage in the US
The current status of common-law marriage in the US is a varied landscape. While it is true that the majority of states have abolished the practice, a significant number continue to recognise common-law marriages.
History of Common-Law Marriage
The origins of common-law marriage are uncertain, but it is arguably the original form of marriage. A couple would take up residency together, hold themselves out to the world as a married couple, and otherwise behave as a married couple. Over time, the Catholic Church forbade clandestine marriage, requiring all marriages to be announced in a church by a priest. More specific requirements were introduced, with marriages only being considered valid if witnessed by the pastor of the parish or the local bishop.
Current Status
As of 2022, common-law marriages are still 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. For example, in New Hampshire, common-law marriages are only recognised posthumously to ensure the surviving spouse inherits without difficulty. In Utah, common-law marriages must be validated by a court or administrative order.
Of the 41 remaining states, 13 never permitted, and 28 no longer permit, common-law marriages to be contracted within their jurisdiction. However, all states recognise validly contracted foreign common-law marriages. For example, California abolished common-law marriage in 1895 but will recognise common-law marriages contracted in other states.
Divorce
Divorce proceedings for common-law marriages can be more complicated. In states that do not recognise common-law marriage, couples must provide additional evidence and testimony to prove the validity of their marriage. Tennessee, for example, requires the spouse filing for divorce to prove the existence of a valid common-law marriage. If the burden of proof is not met, the case is dismissed as there are no bonds of matrimony for the court to dissolve.
In conclusion, while the majority of states in the US have abolished common-law marriage, a significant number continue to recognise it, either fully or with limitations. Couples must be aware of the laws in their state and the implications for their legal rights and responsibilities.
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Frequently asked questions
No, Tennessee does not recognise common-law marriage. However, it will honour a common-law marriage that was established in another state.
Common-law marriage is when a couple presents as married without registering their relationship with the state. It is sometimes referred to as a "marriage without formalities" or an "informal marriage".
Along with Washington D.C., the following states permit common-law marriage: Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas, and Utah.
If you have a common-law marriage that was established in another state, you will need to provide additional evidence and testimony to prove the validity of your marriage if you wish to get divorced in Tennessee.
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