Gavin Howe
Common-law marriage, also known as sui juris marriage, is a form of irregular marriage that is currently only recognized in a handful of U.S. states and the District of Columbia, along with some provisions of military and tribal law. This means that a couple can be considered legally married without a marriage license, ceremony, or certificate, as long as they meet the requirements in their state. While some states have stopped recognizing new common-law marriages, they may still acknowledge those that were established before the law changed.
| Characteristics | Values |
|---|---|
| Number of States Recognizing Common Law Marriage | 7 states and the District of Columbia (DC) |
| States Recognizing Common Law Marriage | Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, Utah, South Carolina, New Hampshire, Alabama, District of Columbia |
| States with Limited Recognition | Ohio, Idaho, Georgia, Oklahoma, New Hampshire, Utah, South Carolina |
| Requirements for Recognition | Live together for a specified period, meet the legal age to marry, be of sound mind, and intend to have the marriage recognized by law |
| Divorce | Required for separation in states recognizing common-law marriage |
| Same-Sex Marriage | Recognized since 2015 |
| Tribal Law | Recognized by many Aboriginal nations, including the Navajo Nation |
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What You'll Learn
Common law marriage in the US
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 recognized in a handful of states. These include 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.
The recognition of common-law marriage varies across states, with specific requirements that need to be met to qualify for legal protections and benefits. For example, in New Hampshire, common-law marriages are only recognized for inheritance purposes. Additionally, some states, such as Alabama, Florida, Georgia, Indiana, Ohio, and Pennsylvania, recognize common-law marriages established before a certain date.
The concept of common-law marriage originated in colonial America, where the scarcity of clerics or civil officials made it challenging to obtain official marriage documentation. As a result, some states considered a couple married if they lived together for a certain period and behaved as a married couple. However, over time, most states have taken steps to remove common-law marriage as a legal status.
It is important to note that common-law marriage should not be confused with cohabitation. While cohabitation may be considered as evidence of a common-law marriage, simply living together for a prolonged period does not automatically create a common-law marriage. The specific requirements, such as the length of cohabitation and holding themselves out as a married couple, must be met for a common-law marriage to be recognized.
Furthermore, the recognition of common-law marriage can have significant consequences. If a common-law marriage is recognized, the couple may be granted the same rights and obligations as legally married spouses, including the need to obtain a traditional divorce if they wish to separate. Additionally, in the event of a partner's death, the surviving partner's eligibility for benefits may depend on the recognition of their common-law marriage.
All states recognize common-law marriages performed in other states with different laws. Under the United States Constitution's full faith and credit clause, states must respect the laws of other states, including their recognition of common-law marriage. However, this only applies if the couple meets all the requirements of a common-law marriage in the state where it was established.
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Common law marriage in the UK
In the UK, common-law marriage does not exist in law. However, couples who live together are sometimes referred to as common-law partners. In England and Wales, only married couples or those in civil partnerships can rely on the laws about dividing finances when they divorce or dissolve their marriage. Unmarried couples do not have the same legal rights and protections as married or civil-partnered couples.
Cohabitation agreements are popular with unmarried couples as they cover all aspects of joint life and offer protection for both parties and their assets. These agreements can provide protections similar to marriage, such as equal shares of assets or access to pensions. A cohabitation contract can outline the rights and obligations of each partner towards each other. A living together agreement should be accompanied by a 'declaration of trust', which outlines how property is shared.
In Scotland, cohabiting couples have certain protections. For example, household goods bought during the relationship are ruled to be jointly owned, and their share is split equally. There are also financial provisions for decisions made during the relationship, such as one partner taking time away from their career for childcare. Surviving partners are also protected regarding estates, allowing a cohabiting partner protection if there is a death without a will.
In the United States, common-law marriage is recognised in some states, and couples who meet certain criteria can enjoy many of the same legal benefits as married couples. These criteria include living together for a specified amount of time, which varies depending on the state. Common-law marriage is also recognised in some Aboriginal nations, such as the Navajo Nation.
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Common law marriage and same-sex couples
In the United States, common-law marriage is a form of irregular marriage that is only recognised in a few states and the District of Columbia. Common-law marriage, also known as sui juris marriage, informal marriage, or marriage in fact, does not have a uniform definition across the US, and each state has its own rules and requirements.
Same-sex couples have the right to marry, as ruled by the Supreme Court. However, the legal rights and benefits for same-sex spouses are still debated and unclear in certain contexts, such as whether businesses can deny services to these couples. Common-law marriage is one such area of ambiguity for same-sex couples.
In states where common-law marriages are recognised, same-sex couples can be recognised as common-law spouses and gain the same rights and benefits as heterosexual common-law marriages. For example, in Pennsylvania, a same-sex common-law marriage will be recognised if contracted before January 1, 2005, despite the state only recognising same-sex marriages from 2014. Similarly, a South Carolina court ruled that a same-sex couple who lived together for about 40 years had a common-law marriage, even though the state only recognised same-sex marriages from 2014.
To establish a common-law marriage, certain requirements must be met, which vary from state to state. Generally, these include living together, having the legal right to marry (being of legal age, sound mind, and not already married), and holding themselves out as a married couple publicly, such as by using the same last name or referring to each other as "husband" or "wife". Same-sex couples who meet these requirements may be able to establish a common-law marriage, even if their spouse died before same-sex marriage became legal in their jurisdiction.
It is important to note that the recognition of common-law marriages, including those of same-sex couples, varies across different states and jurisdictions in the US. While some states have clear recognition, others may have limited recognition or only recognise common-law marriages contracted before a certain date.
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Common law marriage and divorce
In the United States, common-law marriage is a form of irregular marriage that is currently recognised in a small number of states. These include Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire also recognise common-law marriage to a limited extent. Outside of the US, many Aboriginal nations, such as the Navajo Nation, permit common-law marriage.
The requirements for a couple to be considered married under common law vary from state to state. One common feature is that partners must show that they were not already married to someone else before the common-law marriage. They also must have been of legal marriage age. Some states require couples to live together for a certain period, while in others, cohabitation time is not a factor. Other requirements include the agreement to be married, living together as husband and wife, and representing to others that they are married.
When it comes to divorce, common-law marriages are treated like any other marriage in most states. This means that a couple in a common-law marriage must typically go through a similar legal divorce process as that required of couples who are officially married. However, before filing for divorce, couples must first prove that their common-law marriage existed, which can be challenging due to the lack of a paper trail. This proof is necessary to obtain a formal divorce decree from a judge, without which, couples may face issues such as being unable to legally marry again.
In Texas, there is a two-year statute of limitations for divorce in common-law marriages. If neither party petitions for divorce within two years, it is as if they were never married. However, if there are assets or children involved, one party can petition the court to divide debts and assets, and the court will then decide if the couple meets the criteria for a common-law marriage.
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Common law marriage and inheritance
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 does not require a license, witnesses, or an officiated ceremony. It is currently only recognized in a few states in the US, including Texas, Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Utah, and the District of Columbia. Some states also recognize common-law marriage for limited purposes or if the relationship began before a certain date.
In states that do not recognize common-law marriage, a surviving significant other will be unable to receive any inheritance from their partner unless they have an estate plan in place. This can create issues when it comes to estate planning for illness or death, as the surviving partner may also not have a say in healthcare and financial decisions if their spouse is unable to make those decisions.
However, in states that do recognize common-law marriage, a surviving spouse has the same rights as a spouse in a traditional marriage. For example, in Texas, a common-law spouse can inherit from a decedent's estate, regardless of whether the decedent had a valid will. The surviving spouse retains their 50% interest in community property, has homestead rights, and can claim certain property as exempt from creditors' claims.
To establish a common-law marriage in Texas, a couple must meet three requirements: they must agree to be married, live together as husband and wife, and hold themselves out to others as married. Evidence of a common-law marriage may include a signed declaration of informal marriage, joint tax returns, shared bank accounts or financial records, property records, and witness testimony from friends and family.
It is important to note that the specific evidence required to prove a common-law marriage may vary depending on the circumstances and the state in which the marriage took place.
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Frequently asked questions
Seven states and the District of Columbia fully recognize common-law marriage. These are Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, and Texas. Utah, South Carolina, and New Hampshire have limited recognition.
Common-law marriage, also known as sui juris marriage, is an informal marriage where couples do not have a marriage license, ceremony, or certificate.
The requirements vary by state but include living together for a certain period, being of legal age to marry, and being considered of sound mind.
Yes, if a common-law marriage is recognized under the law and customs of the state, it is valid for tax purposes. Additionally, in states that recognize common-law marriage, couples can receive the same benefits as married couples.
Common-law marriage is recognized in some Aboriginal nations, such as the Navajo Nation. It was also historically recognized in Britain's overseas colonies before the Marriage Act of 1753.
