Anaya Nolan
Common-law marriage refers to an informal marriage where couples do not have a marriage license, ceremony, or certificate. Instead, they must meet the requirements in their state or country of residence for their union to be legally recognised as a marriage. The requirements for common-law marriage vary across different jurisdictions, and not all states or countries recognise it. In the United States, some states have abolished common-law marriage, while others recognise it with specific limitations. Similarly, while common-law marriage was abolished in England in 1753, it is still recognised in some of its former colonies, including the United States and Canada, with certain restrictions.
| Characteristics | Values |
|---|---|
| Countries where common law marriage applies | United States, Canada, England, Wales, Scotland |
| States in the US where common law marriage is fully recognized | Colorado, Iowa, Rhode Island, Montana, Texas |
| States in the US where common law marriage is recognized with limitations | Alabama, Florida, Georgia, Indiana, Ohio, Pennsylvania, Idaho |
| States in the US where common law marriage is not recognized | 13 states, including Nevada |
| Territories in the US where common law marriage is not recognized | Guam, Northern Mariana Islands |
| Requirements for common law marriage | Cohabitation, legal capacity to marry, intent to be married, holding out as a married couple |
| Rights conferred by common law marriage | Alimony, allowances, shelter, child custody, inheritance |
| Non-recognition of common law marriage | Australia, Kuwait (for Kuwaiti citizens and same-sex couples) |
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What You'll Learn
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 is currently recognised in some form in 19 US states and the District of Columbia, along with some provisions of military law. The 19 states are:
- Alabama
- Colorado
- Georgia (if entered before 1997)
- Idaho (if entered before 1996)
- Iowa
- Kansas
- Montana
- New Hampshire
- Ohio (if entered before 1991)
- Oklahoma
- Pennsylvania (if entered before 2003)
- Rhode Island
- South Carolina
- Texas
- Utah
- The District of Columbia
- Kansas
- Iowa
- Oklahoma
- Rhode Island
Three other states recognise domestic common-law marriage after the fact for limited purposes:
- New Hampshire (for purposes of probate only)
- Utah (only recognises common-law marriages that have been validated in a judicial proceeding)
- South Carolina
The remaining 41 states do not recognise common-law marriage, with 13 never having permitted it and 28 no longer permitting it. The term "common-law marriage" is often used colloquially to refer to cohabiting couples, which can create public confusion regarding the legal rights of unmarried partners.
The origins of common-law marriage are uncertain, but it arguably represents the original form of marriage, in which a couple took up residency together, presented themselves as a married couple, and otherwise behaved as a married couple. In the US, common-law marriage appears to have originated in the harsh conditions of colonial America, where the presence of relatively few clerics or civil officials necessitated a substitute for ceremonial marriage.
All US jurisdictions recognise validly contracted out-of-state marriages, including validly contracted common-law marriages. However, an invalidly contracted out-of-state marriage will not be valid domestically, even if it could have been validly contracted domestically. For example, if two first cousins attempt to marry in Nevada, where this is not allowed, that marriage will not be valid in either Nevada or California. However, if they attempt to marry in California, where it is allowed, the marriage will be valid in both states.
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Common-law marriage in England and Wales
In England and Wales, common-law marriage is a term used to refer to unmarried, cohabiting heterosexual couples. However, this is a social usage, and such couples are not afforded the same rights and protections as married or civil partners. This means that, in the event of a breakup or death, there is no automatic entitlement to financial support or inheritance of a deceased partner's assets.
The history of common-law marriage in England and Wales dates back to medieval times when marriage was a non-religious affair. A couple was considered married if they agreed to take each other as husband and wife. Over time, marriage requirements became more stringent, with the Catholic Church requiring marriages to be announced in a church by a priest. This led to the tradition of 'handfasting', where couples exchanged legally binding vows, and sometimes had their hands tied together with a knot as a symbol of their union.
In the 16th century, the Council of Trent introduced more specific requirements, ruling that marriages must be witnessed by the parish priest or bishop of the diocese, or their delegate. The Marriage Act of 1753 abolished clandestine or common-law marriages in England and Wales, requiring marriages to be performed by a priest of the Church of England, with exceptions for Jews and Quakers.
Today, common-law marriage is not recognised in England and Wales, and cohabiting couples are treated as separate individuals without special legal status. While there have been calls for new laws surrounding cohabitation, none have been implemented yet.
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Common-law marriage in Australia
Australia does not have common-law marriage as it is understood under common law. Instead, it recognises de facto relationships, which are defined as couples living together in a genuine domestic relationship. These de facto relationships are treated similarly to marriages in terms of financial implications, and the law can recognise them as such even without the couple's knowledge.
Since March 1, 2009, de facto relationships have been recognised in the Family Law Act (Commonwealth). This Act applies in states that have referred their jurisdiction on de facto couples to the Commonwealth's jurisdiction. Western Australia, which has not referred its jurisdiction, still has valid state legislation regarding de facto relationships. The Family Law Act 1975 also covers non-court-based family services such as counselling and reconciliation.
The Marriage Act 1961 provides a unified legal definition of marriage under federal law, while the Family Law Act 1975 covers divorce, child support, and the division of assets. The Marriage Act only recognises marriages between two people and does not accept any other forms of union. However, it is possible to be married to one person and in a de facto relationship with another.
When a de facto partnership ends, assets are divided similarly to married couples going through a divorce. Either person can claim the other's property, savings, or superannuation. The court can also make orders regarding spousal maintenance. Australia has a no-fault divorce policy, meaning the court only examines whether the marriage has broken down irretrievably, without considering the reasons for the breakdown.
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Common-law marriage in Canada
Canada does not have the institution of common-law marriage, where a couple can be legally married by living together with the intention to be married, without a formal ceremony. However, informal cohabitation relationships are recognised for certain purposes in Canada, creating legal rights and obligations.
The criteria for common-law relationships vary across Canada, differing in each province. For example, in British Columbia, a couple is considered to be in a common-law relationship after living together in a marriage-like manner for at least two continuous years, or if they have lived together for less than two years but have a child together. In Alberta, a couple is considered to be in an Adult Interdependent Relationship if they have made a formal and valid Adult Interdependent Partner agreement, have lived together in a relationship of interdependence for at least three continuous years, or have lived together in a relationship of some permanence where there is a child of the relationship. In Saskatchewan, a couple is considered to be in a common-law relationship after living together continuously for at least two years. In Quebec, a couple is considered common law for tax purposes after living together continuously for at least two years. In Nova Scotia, a couple is considered to be in a common-law relationship if they live together in a marriage-like relationship and publicly refer to themselves as partners or spouses.
There is no legal process for ending a common-law relationship in Canada. To end the relationship, you typically need to separate from your partner, stop living together, and annul your cohabitation agreement, if you have one.
The term "common-law marriage" has been used socially in England and Wales to refer to unmarried, cohabiting heterosexual couples. However, this term does not confer any of the rights or obligations that married or civil partners have.
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Requirements for common-law marriage
Common-law marriage is a term used to refer to a legal marriage that is not formally recognised through a wedding ceremony, marriage license, or marriage certificate. Common-law marriages are recognised in varying capacities in the following places:
United States
In the United States, common-law marriages are 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 marriages. The remaining 41 states either never permitted or no longer permit common-law marriages.
The requirements to contract a valid common-law marriage differ between jurisdictions. However, common requirements include:
- Living together: While there is no statutory requirement for the length of time a couple needs to live together, generally, the longer a couple lives together, the stronger their case is for common-law marriage.
- Legal right or "capacity" to marry: Both partners must have the legal capacity to marry, which usually means they must be at least 18 years old, of sound mind, and not already married to other people.
- Intent: Both partners must intend to be married and behave as a married couple, holding themselves out to friends, family, and the public as being married.
Canada
Canada does not have the institution of common-law marriage. However, informal cohabitation relationships are recognised for certain purposes, creating legal rights and obligations.
England and Wales
In England and Wales, the term "common-law marriage" is used to refer to unmarried, cohabiting heterosexual couples. However, this is merely a social usage, and it does not confer any legal rights or obligations on the couple.
Australia
Australia does not recognise common-law marriage. However, de facto relationships are recognised in the Family Law Act (Commonwealth) and provide similar rights and protections as marriages.
Kuwait
In Kuwait, intercourse outside of marriage is illegal, so common-law marriages are not recognised. However, Kuwaiti courts may consider partnerships or other similar unions recognised in the male partner's country of nationality for family matters, such as illegitimate children born abroad.
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Frequently asked questions
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 in the US have common-law marriages. These include Alabama (before 2017), Georgia (before 1997), Colorado, Iowa, and Rhode Island.
Both partners must have the legal capacity to marry, intend to be married, and behave as a married couple in public.
Common-law marriage is not recognized in Australia or Canada. It was abolished in England and Wales in the Marriage Act of 1753 but continued to be recognized in what are now the United States and Canada.
If you are uncertain about your marital status, it is recommended that you seek legal advice from a family law attorney to determine your rights and benefits.
