Keith Mack
The origins of the term common-law marriage are uncertain, but it refers to a marriage that is considered valid by both partners without being formally recorded or celebrated in a civil or religious ceremony. In the United States, common-law marriage has existed since colonial times, when America was a colony of England. The term 'common law itself originates from England, referring to non-ceremonial marriages that were valid under English law. While most states in the US no longer recognize common-law marriages, they will generally respect the validity of such marriages lawfully entered in another state or country.
| Characteristics | Values |
|---|---|
| Definition | A marriage that results from the parties' agreement to consider themselves married, followed by cohabitation, rather than through a statutorily defined process. |
| Origin | The phrase "common law" originates with England and refers to those non-ceremonial marriages that were valid under English law. |
| Current Status | Common-law marriage is recognized in seven states and the District of Columbia. Nine states recognize common-law marriage with some restrictions, and 32 states do not permit it. |
| Proof | Common-law marriage may be proven through legal documents such as lease agreements, tax returns, and insurance policies. |
| Inheritance | If one partner in a common-law marriage dies, the surviving partner must prove their marriage to inherit property or receive benefits. |
| Separation | Common-law marriage may impact the separation process, as the couple may feel entitled to split assets similarly to married couples. |
| Same-Sex Marriage | Same-sex common-law marriages are recognized in some states, such as Texas. |
| International Recognition | Common-law marriages lawfully entered in another state or country are typically respected, even if the current state or country does not recognize them. |
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What You'll Learn
The origins of the term
In the United States, common-law marriage has existed since colonial times, when America was still a colony of England. The first colonies of America were subject to England's rule, but Acts of Parliament did not apply to England's colonies unless the colonies were mentioned by name. The Clandestine Marriages Act of 1753 ended common-law marriages in England and Wales, requiring subjects to be married by the Church of England. However, this did not apply to the American colonies, where common-law marriage survived and is still recognized in some states today.
In the late 1950s and early 1960s, English law recognized what became known as "common-law marriage" in certain circumstances, such as marriages in prisoner-of-war camps during World War II. English legal texts initially referred exclusively to American common-law marriages, and it was only in the 1960s that the term "common-law marriage" began to be used in its contemporary sense to describe unmarried, cohabiting heterosexual relationships.
It is important to note that the term "common-law marriage" is not recognized in all jurisdictions, and its meaning can vary. For example, in Scotland, the term is unknown in Scots law, which instead uses the term “marriage by cohabitation with habit and repute." Similarly, Australia does not have common-law marriage as it is understood under common law, although the term “de facto relationship" is often used to describe similar domestic circumstances.
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Common-law marriage in the US
The origins of the term "common-law marriage" are uncertain. 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 behaves as a married couple. The term is often used colloquially or by the media to refer to cohabiting couples, which can create confusion regarding the legal rights of unmarried partners.
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 is currently recognised in only a handful of states. These include Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Additionally, Utah, South Carolina, and New Hampshire have limited recognition of common-law marriage.
The specific requirements for a common-law marriage to be recognised vary by state. For example, in Texas, couples can file a legal "Declaration of Informal Marriage", which is a legally binding document that must be completed by both partners and affirmed in the presence of the County Clerk. This declaration is then formally recorded and forwarded to the Texas Bureau of Vital Statistics.
The recognition of common-law marriages can have significant consequences, as individuals in these unions may be granted the same rights and obligations as spouses in a traditional marriage, especially upon death or separation. For instance, if one partner dies, the surviving partner's eligibility for benefits may depend on whether their union is recognised as a common-law marriage.
It is important to note that the majority of states in the US do not contract common-law marriages within their jurisdiction. However, they will typically recognise these unions if they are lawfully entered into in another state or jurisdiction. Additionally, same-sex couples can also enter into common-law marriages, as recognised by the Supreme Court ruling in Obergefell v. Hodges and the 2022 Respect for Marriage Act.
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Common-law marriage in Scotland
The term "common-law marriage" comes from English legal texts, initially referring exclusively to American common-law marriages. The term only began to be used in its contemporary sense in the 1960s to denote unmarried, cohabiting heterosexual relationships.
In Scotland, the term "common-law marriage" is not recognised in Scots law. However, a similar concept called "marriage by cohabitation with habit and repute" existed and was recognised as a form of irregular marriage. This type of marriage required the couple to live together continuously for more than 20 days and hold themselves out as a married couple to the world. This form of marriage was abolished in 2006 by the Family Law (Scotland) Act 2006, which also introduced legal rights for cohabitants.
Despite the abolishment of "marriage by cohabitation with habit and repute," Scotland recognises the legal rights of cohabitants, including opposite-sex and same-sex couples. These rights include financial provisions that can be applied for in the event of a relationship breakdown or the death of a partner. However, the range of orders the court can make in these circumstances is more limited compared to married couples.
It is important to note that simply living together does not establish a common-law marriage in Scotland, and there are specific requirements for a marriage to be recognised as valid, such as a ceremony and both partners being of legal age to marry.
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Misconceptions
One misconception about the term "common-law marriage" is that it refers to a couple who has cohabited for a long period of time. While cohabitation is a factor in common-law marriages, the length of time is not the determining factor. In fact, the time requirements vary across jurisdictions, with some requiring as little as 20 days of cohabitation.
Another misconception is that common-law marriage is a widely recognized concept. However, it is important to note that not all jurisdictions permit common-law marriage. In the United States, for example, only a handful of states still recognize it, and even within those states, there may be restrictions or limitations. Additionally, the term "common-law marriage" is unknown in Scots law, despite 57% of Scots surveyed believing that couples who live together have a "common-law marriage".
Furthermore, there is a misconception that common-law marriage provides the same rights and benefits as a traditional marriage. While in some cases, common-law marriages may be granted the same rights as a spouse, this is not always the case. The recognition of these marriages and the associated rights can vary depending on the state or jurisdiction, and may be subject to legal complexities.
The idea that common-law marriage is a recent concept is also a misconception. While the term "common-law marriage" may have evolved and gained popularity in the 1960s and 1970s, the concept of non-ceremonial marriages has existed for much longer. In the United States, for instance, common-law marriage has been recognized since colonial times.
Lastly, there is a misconception that common-law marriage is a simple and straightforward process. However, proving a common-law marriage can be challenging and may require legal documents, court proceedings, or other forms of evidence. The requirements and recognition of common-law marriage vary widely across jurisdictions, and it is important to understand the specific laws and regulations in one's state or country.
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Recognition and legal rights
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 seven U.S. states and the District of Columbia, with some provisions of military law. Two other states recognize domestic common law marriage after the fact for limited purposes. Common-law marriages are also recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, and Oklahoma. Once they meet the requirements of common-law marriage, couples in those states are considered legally married for all purposes and in all circumstances. All U.S. jurisdictions recognize common-law marriages that were validly contracted in the originating jurisdiction, although the extent to which the U.S. Constitution requires interstate marriage recognition has not been fully articulated by the Supreme Court.
In the United States, common-law marriage has existed since colonial times, when America was still a colony of England. The first colonies of America were subject to England's rule, but Acts of Parliament did not apply to England's colonies unless the colonies were mentioned by name. The Clandestine Marriages Act of 1753 ended common-law marriages in England and Wales, requiring subjects to be married by the Church of England. However, this did not apply to American colonies, allowing common-law marriage to survive in colonial America.
In the United Kingdom, there is no definitive law surrounding common-law marriages in England and Wales. While the term "common-law marriage" is used colloquially to refer to unmarried, cohabiting heterosexual couples, it does not confer any legal rights or obligations associated with civil partnerships or marriages. In Scotland, common-law marriage does not exist, although there was a type of irregular marriage called "marriage by cohabitation with habit and repute," which was abolished in 2006.
Canada does not recognize common-law marriage, but informal cohabitation relationships are acknowledged for certain purposes, creating legal rights and obligations. While some provinces may extend to couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married and may be defined as "unmarried spouses."
In Australia, the term "de facto relationship" is often used to refer to relationships between any two persons who are not married but are living in certain domestic circumstances. There is no federal recognition of de facto relationships outside of Australia, and Western Australia does not recognize these relationships either, making it a state matter.
Outside of the United States and Canada, the recognition of common-law marriages can vary. For example, the Territory of Guam does not recognize common-law marriage, while the Commonwealth of the Northern Mariana Islands may recognize customary marriage in certain cases.
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Frequently asked questions
The phrase "common law" originates with England and refers to non-ceremonial marriages that were considered valid under English law.
A common-law marriage is a marriage that results from a couple's agreement to consider themselves married, followed by cohabitation, without a statutorily defined process.
Common-law marriage is recognized in seven US states and the District of Columbia. Two other states recognize it for limited purposes. Scotland was the last European jurisdiction to abolish common-law marriage in 2006.
The term "common-law marriage" began to be used in the 1960s to denote unmarried, cohabiting heterosexual relationships.
