Keith Mack
Common-law marriage, also known as informal marriage, is a legal framework that recognises a couple as legally married without the need for a marriage license, ceremony, or certificate. While it is only recognised in a handful of states, the specific requirements for a valid common-law marriage vary across these states. For instance, in Colorado, couples must publicly declare themselves as married, while in Texas, they can opt to complete a Declaration and Registration of Informal Marriage. The recognition of common-law marriages has been gradually declining, with only a few states continuing to recognise them under specific circumstances.
| Characteristics | Values |
|---|---|
| Number of states where common-law marriages are fully recognized | 7, plus the District of Columbia |
| Number of states where common-law marriages are partially recognized | 10 |
| Number of states where common-law marriages are not recognized | 27 |
| Number of states where common-law marriages were never permitted | 13 |
| States where common-law marriages are fully recognized | Colorado, Iowa, Rhode Island, Texas, and three others |
| States where common-law marriages are partially recognized | Alabama, Florida, Georgia, Ohio, Pennsylvania, South Carolina, and four others |
| States where common-law marriages are not recognized | 27 states, including California |
| States where common-law marriages were never permitted | 13 states |
| Requirements for common-law marriage | Capacity to marry, present marriage agreement, holding out of each other as husband and wife to the public, cohabitation, public declaration of marital status, and being of sound mind |
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What You'll Learn
Common law marriage in the District of Columbia
Common-law marriage, though abolished in many Western nation states, is still legal in a few places. The District of Columbia is one of the few states that authorise individuals to establish a common-law marriage. Common-law marriages have been recognised in the District of Columbia since 1931.
A common-law marriage is a marriage that is legally recognised without a ceremony or certification of marriage. According to the District of Columbia Department of Human Services, a common-law marriage exists if the two persons are legally free to marry, if it is the intent of the two persons to establish a marriage, and if the two are known to the community as husband and wife.
The District of Columbia allows for the recognition of common-law marriages entered into in other jurisdictions. So, if you lived in a state that allows common-law marriage and entered into a legally binding common-law marriage, you can later move to the District of Columbia and avail yourself of the marriage laws, such as getting divorced and asking for alimony.
To form a new common-law marriage in the District of Columbia, you and your spouse must share a mutual and express agreement to be married to each other and cohabitate. The D.C. court system looks at common-law marriages with healthy scepticism to prevent any "accidental" marriages. There is no minimum requirement for how long a couple must live together for it to be considered a common-law marriage.
In the eyes of the law, there's no difference between a common-law marriage and a ceremonial marriage. Both are equally valid forms of marriage and both end only upon divorce or death.
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Common law marriage in Colorado
Common-law marriage, though not a widely recognised practice, is legal in Colorado. The state has recognised common-law marriage as legal and binding since 1877 and is one of the 12 states to do so.
A common-law marriage is established when two people mutually consent to be husband and wife. It does not require any license, ceremony, or documentation to be legal. However, if documentation is required, it is recommended to file a signed, notarized affidavit with the County Clerk and Recorder in the county of residence. This affidavit will be filed as a document, not as a marriage record.
A couple is considered to be in a common-law marriage when they agree to be married and then act like a married couple. The couple must be legally free to marry, intend to be married, and be recognised by their community as a married couple. The length of the relationship does not determine a common-law marriage.
If a couple is considered to be in a common-law marriage, they have all the legal rights and duties of any married couple. To end the marriage, they must file for divorce, and their property and debts will be divided in a divorce proceeding. If there is a dispute about whether a common-law marriage existed, the court will hold an evidentiary hearing to determine the nature of the relationship.
Colorado does not recognise common-law marriages entered by minors in the state or abroad, even if the marriage would have been valid where it was entered into.
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Common law marriage in Texas
Common-law marriage, also known as marriage without formalities or informal marriage, is a valid and legal way for a couple to marry in Texas. It is important to note that common-law marriages have very specific requirements, and one does not end up in a common-law marriage simply by living together for a certain period.
To enter into a common-law marriage in Texas, a couple must meet the following three requirements:
- Capacity to marry: Both parties must be legally free to marry and not already married, either informally or formally, to anyone else.
- Present marriage agreement: Both parties must mutually consent and agree that they are married.
- Holding out as married: The couple must cohabit and hold themselves out to the public as a married couple. They must be known to the community as husband and wife and behave as a married couple would.
It is important to note that Texas law does not require a couple to be together for a specific period of time before they can declare themselves to be in a common-law marriage. However, proving a common-law marriage can become more difficult if a significant amount of time passes without taking any action to formalize or prove the marriage. If a couple separates and does not take any action to end the marriage (such as filing for divorce) for more than two years, Texas law presumes that the couple never intended to be married.
Documents such as lease agreements, tax returns, and insurance policies may be requested to prove a common-law marriage in Texas. If there is a dispute about the existence of a common-law marriage, it may be necessary to go to court to obtain a legal ruling. Once a common-law marriage is proven, it is legally valid and has no "lesser status" than a formal marriage. The same rules apply regarding divorce, property division, inheritance rights, and other legal matters.
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Common law marriage in states that don't recognise it
A common law marriage is an informal marriage where couples do not have a marriage license, marriage ceremony, or marriage certificate. Only a handful of states recognize common law marriages, and each has its own rules that need to be met for legal protections and benefits to apply.
Some states have abolished common law marriage but still recognize such marriages if they began before a certain date or for a specific purpose. For example, Alabama, Florida, Georgia, Indiana, and Ohio recognize common law marriages if they were created before January 1, 2017, January 1, 1968, January 1, 1997, January 1, 1958, and October 10, 1991, respectively.
In states that do not recognize common law marriage, couples can still be considered legally married if their relationship meets all the requirements of a common law marriage while living in a state that does recognize it. For example, if a couple is common law married in Colorado (a common law marriage state) and moves to Ohio (a limited common law marriage state), Ohio will recognize their marriage as legal. This is because of the United States Constitution's full faith and credit clause, which states that states must respect other states' laws.
It is important to note that the law is constantly evolving, and it is recommended to consult the family laws in your state for up-to-date information.
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Common law marriage and same-sex marriage
The recognition of common-law marriages varies across different states and jurisdictions. Common-law marriage is a marriage by express agreement between two parties, without a ceremony or certification of marriage. To establish a common-law marriage, a couple must meet certain requirements, including the capacity to marry, a present marriage agreement, and publicly holding each other out as spouses.
The recognition of same-sex common-law marriages is an evolving area of law. In the United States, the Supreme Court's ruling in Obergefell v. Hodges established that same-sex couples have the right to marry and must be permitted to enter into marriage on the same terms as different-sex couples, including through common-law marriage where it is recognized. This ruling has provided a pathway for same-sex couples who have been together for many years but were previously unable to legally marry to obtain recognition as common-law spouses.
For example, in Pennsylvania, a same-sex common-law marriage will be recognized if it was contracted before January 1, 2005, even though the state did not recognize same-sex marriages until 2014. Similarly, in South Carolina, a court recognized a same-sex common-law marriage dating back to 1987, despite same-sex marriage only being legalized in the state in 2014. In another case, a judge in South Carolina ruled that the Obergefell v. Hodges decision applied retroactively, recognizing a same-sex common-law marriage that had ended after four decades.
The recognition of same-sex common-law marriages can have important implications for couples seeking spousal benefits, such as Social Security or alimony, as well as in situations involving divorce or the death of a spouse. However, it is important to note that the recognition of common-law marriages, including same-sex common-law marriages, varies by state, and individuals should consult an attorney familiar with the laws in their specific jurisdiction.
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Frequently asked questions
Common-law marriages are legal in a limited number of jurisdictions. Seven states and the District of Columbia fully recognize common-law marriages, while a few other states have limited recognition of common-law marriages.
The states that fully recognize common-law marriages are Colorado, Iowa, Rhode Island, and Texas. The District of Columbia also fully recognizes common-law marriages.
Alabama, Florida, Georgia, Ohio, Pennsylvania, South Carolina, and New Hampshire have limited recognition of common-law marriages.
The requirements for a common-law marriage to be considered legal vary from state to state. However, some general requirements include the capacity to marry, a present marriage agreement, and holding each other out as husband and wife to the public.
