Kara Sears
Common-law marriage, also known as non-ceremonial marriage, is a marriage that occurs when two people who are legally capable of being married, and who intend to be married, live together as a married couple and hold themselves out to the world as a married couple. The phrase common law originates from England and refers to those non-ceremonial marriages that were valid under English law. In the United States, common-law marriage has existed since colonial times, when there were few clerics or civil officials to perform marriage ceremonies in sparsely populated regions. Today, common-law marriage is recognized in a handful of U.S. states, including Colorado, Iowa, Kansas, Montana, and Texas, and in Washington, D.C.
| Characteristics | Values |
|---|---|
| Definition | A legally recognized marriage between two people who haven't purchased a marriage license or engaged in a ceremony overseen by an officiant. |
| Origin | The phrase "common law" originates from England and refers to non-ceremonial marriages that were valid under English law. However, England abolished common-law marriages in the Marriage Act of 1753. Common-law marriage then survived in colonial America due to the lack of clerics or civil officials and the need for a substitute for ceremonial marriage. |
| Recognition | Common-law marriage is not recognized in all jurisdictions. In the United States, it is recognized in some states, including Colorado, Iowa, Kansas, Montana, New Hampshire, Texas, and Utah. Some states recognize it with restrictions or for limited purposes. |
| Requirements | The requirements for common-law marriage vary by jurisdiction but generally include cohabitation, mutual agreement or intent to be married, and holding themselves out to the community as a married couple. |
| Benefits | Common-law spouses who meet their state's requirements may be eligible for financial benefits, such as tax exemptions, Social Security, and medical benefits. They may also have inheritance rights and the ability to make medical decisions for each other. |
| Separation | A common-law marriage can typically only be legally ended by divorce in states where it is recognized. |
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What You'll Learn
Common law marriage recognition in the US
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that occurs when two people capable of being married agree to consider themselves married, followed by cohabitation, without a statutorily defined or formal process. The term "common-law marriage" is often used incorrectly to describe cohabitation or other legally formalized relations.
The recognition of common-law marriages varies across US states, with some states requiring specific criteria to be met, such as cohabitation, mutual agreement, and public representation as a married couple. As of March 11, 2020, eight states recognize common-law marriages: Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. Washington, D.C., also recognizes common-law marriages.
The legal recognition of common-law marriages is essential for preserving the legal rights of couples. For example, in states that recognize common-law marriage, couples may enjoy similar legal rights to traditionally married couples, including inheritance rights and decision-making in medical situations. However, the lack of formal documentation can lead to ambiguity regarding marital status, potentially causing legal disputes.
The Full Faith and Credit Clause in the U.S. Constitution usually mandates states to honor legal decisions from other states. However, conflicts can arise when couples move to a state that does not recognize common-law marriage, leading to challenges in proving marital status for matters like inheritance or spousal rights. For instance, California does not recognize common-law marriages contracted within the state but does recognize those validly contracted in other jurisdictions.
The Supreme Court has revisited the test for proving a common-law marriage, refining it to focus on the mutual consent or agreement of the couple to enter a marital relationship, followed by conduct manifesting that agreement. This refinement was necessary due to changing social and legal norms, such as the recognition of same-sex marriage.
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Common law marriage in medieval Europe
The concept of common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, refers to a marriage that takes effect without a marriage license or ceremony. Instead, it occurs when two legally capable individuals agree to be married and live together as a married couple, holding themselves out to the world as such.
In medieval Europe, marriage was under the jurisdiction of canon law, which recognised as valid a marriage in which the parties stated they took each other as husband and wife, even without witnesses. Getting married was as simple as saying "I do" for Christians in western Europe, and there was no requirement for parental consent. However, proving the marriage could be challenging. Community recognition played a significant role in qualifying a marriage as valid, and civil and religious officials typically took no part in ceremonies and kept no registries. While the Church opposed divorce, considering marriage a sacrament mirroring the union between Christ and the Church, couples could pursue annulments, which declared that a valid marriage never existed.
The Catholic Church's role in marriage was significant, and at the Fourth Lateran Council in 1215, it forbade clandestine marriages, requiring all marriages to be announced in a church by a priest. The Council of Trent (1545-1563) introduced more specific requirements, including the presence of witnesses such as the pastor or bishop of the parish. While these canons did not bind Protestants or the Eastern Orthodox, clandestine marriages were impossible for the latter as they required a priest's presence.
The term “common-law marriage” is often misused to describe cohabitation or other legally recognised relationships that differ from its original meaning. Common-law marriage is not recognised in all jurisdictions, but those that do will typically respect the validity of such marriages lawfully entered in another state or country.
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Common law marriage in Canada
The concept of "common-law marriage" originates from England, referring to non-ceremonial marriages that were legally valid. In the past, common-law marriages were common due to the difficulty of finding someone qualified to perform a marriage ceremony. Additionally, these marriages helped remove the stigma associated with having children out of wedlock. While the term "common-law marriage" is often misused to describe cohabitation or other legally recognised relationships, it specifically refers to a marriage without the legal requirements of a license or ceremony. Instead, it is based on the mutual agreement and intention to be married, followed by cohabitation and holding themselves out as a married couple.
In Canada, common-law marriage is recognised differently across provinces. While some provinces grant couples in marriage-like relationships similar rights and responsibilities as married spouses, they are not legally considered married. They may be defined as “unmarried spouses” or “common-law partners” and treated similarly to married spouses for tax and financial purposes. The criteria for common-law relationships vary, but generally involve living together in a marriage-like relationship for a certain period, typically two continuous years, or a shorter period if they have a child together.
In provinces like British Columbia, Alberta, and Manitoba, the definition of a common-law relationship is specified in their respective Family Law Acts or equivalent legislation. For example, Alberta recognises Adult Interdependent Relationships, which require a formal agreement, cohabitation for at least three years, or cohabitation with a child together. In Quebec, common-law relationships are referred to as de facto unions, and for tax purposes, couples are considered common-law after living together for at least two years.
Unlike married couples, there is no legal process for ending a common-law relationship in Canada. To sever ties, couples typically separate, stop living together, and annul their cohabitation agreement if they have one. However, the Supreme Court of Canada has recognised remedies for cohabitating spouses, such as constructive and resulting trusts, which allow non-titled spouses to gain rights to property or assets like the matrimonial home.
While the specific protections and rights vary by jurisdiction, common-law marriage in Canada provides some legal recognition and safeguards for couples who choose not to marry but live together as spouses.
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Benefits of common law marriage
Common-law marriage allows couples to be considered married without going through a formal ceremony or obtaining a marriage license. While it is not recognised in all states, common-law marriage does offer several benefits.
Firstly, common-law spouses have the same inheritance rights as formally married couples. They are exempt from the gift tax for gifts to each other and enjoy unlimited marital exemptions for their estate up to the federal estate tax limit. They can also claim deductions for mortgage interest if they co-own a house or have children.
Secondly, common-law spouses can benefit from employment perks such as family leave, bereavement leave, and access to retirement accounts or pension plans if offered by their partner's employer. They may also be eligible for health, dental, and life insurance benefits through their spouse's employer, ensuring access to necessary healthcare and financial protection.
Thirdly, common-law spouses may qualify for various federal benefits, including spousal retirement, survivor benefits, and disability benefits. For example, one partner may be eligible for a portion of the other's retirement benefits, and upon the death of one partner, the surviving spouse is eligible for continued financial support.
Lastly, common-law marriage can provide peace of mind and security for both partners, especially in the case of separation or divorce. While it may be more difficult to prove the existence of a common-law marriage, couples can take steps to protect themselves and their relationship by creating a will or estate plan and understanding their state's specific requirements and laws.
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Ending a common law marriage
The process of ending a common-law marriage is similar to that of a formal marriage. Common-law marriages are recognised in eight US states: Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah, as well as Washington, D.C. In these states, a common-law marriage is considered valid if the couple has a mutual agreement to be married, cohabit with each other, and hold themselves out to be married.
To end a common-law marriage, the first step is to determine if the marriage was valid. This involves proving to the court that both parties intended to be married, which can be demonstrated through evidence of conduct or a written agreement. Some states may have additional requirements, such as age restrictions. If the marriage is deemed valid, the couple must follow the steps for a traditional divorce. This includes filing a formal petition with the court and understanding state-specific residency and divorce requirements. All states allow for a no-fault divorce, which is generally faster and less expensive.
During the divorce process, issues such as asset and liability distribution, alimony or spousal support, and child custody and support may need to be addressed. Legal paternity must be established before custody and support arrangements can be determined. The court will review and approve all aspects of the divorce before granting a judgment of divorce, which formally and legally ends the common-law marriage.
It is important to note that bigamy laws apply to common-law marriages, making it illegal to enter a new marriage before legally ending the previous one. Additionally, if a couple moves to a state that does not recognise common-law marriage, they will not be considered "unmarried" due to the Full Faith and Credit Clause of the Constitution, which requires states to respect the laws of other states.
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Frequently asked questions
A common-law marriage is a legally recognised marriage between two people who haven't purchased a marriage license or engaged in a ceremony overseen by an officiant. It is also known as a non-ceremonial marriage, informal marriage, or marriage by habit and repute.
Common-law marriage is recognised in some form in a handful of US states, including Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. Washington, D.C. also recognises common-law marriage. Common-law marriage is not recognised in the UK, although Scotland did have a form of irregular marriage called 'marriage by cohabitation with habit and repute' until 2006.
Common-law marriage was established to give people in long-standing relationships some protections and rights, even if they are not legally married. For example, in the case of a partner's death, a common-law spouse would be next of kin and entitled to inheritance.
