Cameron Miranda
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 only recognized in a handful of U.S. states and the District of Columbia, along with some provisions of military law. Common-law marriage does not require a marriage license, ceremony, or certificate, but couples must meet specific requirements for their union to be legally recognized as a common-law marriage. These requirements vary by state and may include the length of time the couple has lived together and whether the marriage was entered into before a certain date. While most states do not permit new common-law marriages to be formed, all states must recognize valid common-law marriages from other states.
| Characteristics | Values |
|---|---|
| Number of states recognizing common law marriage | 7 or 8 |
| States with limited recognition of common law marriage | 2 or 5 |
| States that recognize common law marriage with specific date requirements | Alabama, Florida, Georgia, Idaho, Indiana, Ohio, Pennsylvania |
| States that recognize common law marriage without date requirements | Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, Utah, District of Columbia |
| States that do not recognize common law marriage | California, Wisconsin, and 37 others |
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What You'll Learn
Common law marriage in the United States
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 in a limited number of states. As of 2022, common-law marriages are recognized 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 marriage. Certain states, such as Ohio, Idaho, Georgia, and Pennsylvania, only recognize common-law marriages that were established before a certain date.
The specific requirements for a common-law marriage to be recognized vary by state. Generally, couples must meet the requirements for the capacity to marry, including being at least 18 years old and not already married. Both parties must intend to be married and present themselves as a married couple to others. Additionally, living together for a certain period, which differs by state, is typically necessary.
The history of common-law marriage in the United States is traced back to colonial America, where the scarcity of clerics and civil officials made ceremonial marriages difficult to perform. As settlers moved westward into less populated regions, the need for common-law marriages expanded. Despite its decline in popularity, common-law marriage still holds legal weight in certain jurisdictions.
In February 2015, the United States Department of Labor expanded the definition of "spouse" under the Family and Medical Leave Act of 1993 to include employees in same-sex marriages or common-law marriages, granting them leave rights and job protections. It's important to note that the recognition of common-law marriages can vary, and some states only acknowledge them for specific purposes, such as inheritance or probate.
While common-law marriage is not recognized in all 50 states, it is important to understand the specific laws and requirements of your state or jurisdiction if you are considering a common-law marriage or if you need to terminate one. Each state has its own set of nuances and requirements that define the legal rights of unmarried partners in a common-law marriage.
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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 an intention to be married, and without a formal ceremony. However, informal cohabitation relationships are recognised for certain purposes in Canada, creating legal rights and obligations. The usual indicators are the length of cohabitation, typically two years, or cohabitation with a child. In addition, some provinces have a formal registration system for cohabitation. These types of relationships are typically called "living common-law" in provinces other than Quebec, and "conjoints de fait" in Quebec, which does not use the common law.
Under the Constitution of Canada, jurisdiction over personal relationships is divided between the federal Parliament and the provincial legislatures. The Constitution gives the provinces jurisdiction over most aspects of unmarried cohabitation relationships, which are often referred to as "common-law marriage" or "living common law". Since family law varies between provinces, there are differences between the provinces regarding the recognition of common-law relationships, such as the definition of "spouse" and the rights and obligations of marriage-like relationships. For example, in British Columbia, a couple is considered to be in a common-law relationship if they have lived 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 together, have lived together in a relationship of interdependence for at least three continuous years, or have lived together in a relationship of interdependence where there is a child of the relationship.
In terms of legal rights, common-law partners may be eligible for various federal government spousal benefits. Various federal laws include "common-law status", which automatically takes effect when two people (of any sex) have lived together in a conjugal relationship for a minimum period. Citizenship & Immigration Canada states that a common-law partner refers to a person who is living in a conjugal relationship with another person (opposite or same sex), and has done so continuously for a period of at least one year. A conjugal relationship exists when there is a significant degree of commitment between two people, which can be shown with evidence that the couple shares the same home, that they support each other financially and emotionally, that they have children together, or that they present themselves in public as a couple.
There are also legal rights regarding property. For example, in Ontario, the Supreme Court of Canada has held that a constructive trust allows a cohabiting spouse who is not on the title to gain a right to property in a particular asset, such as the matrimonial home. Thus, a cohabiting spouse who has stayed home with the children and completed the majority of domestic services may be awarded a monetary award or a constructive trust over the matrimonial home where their contribution is connected to the home itself. Furthermore, if a common-law couple separates, each partner is entitled to half the value of the property acquired by the couple during the time they lived together, just like married couples.
It is important to note that, unlike a marriage, which can only be legally ended with divorce, 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.
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US state-level recognition
In the United States, common-law marriage is only recognized in a few 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.
Some states recognize common-law marriages formed before a specific date, such as Florida, Georgia, Indiana, Ohio, and Pennsylvania. For example, Ohio recognizes common-law marriages formed before October 1991, and Pennsylvania recognizes those formed before January 2005.
The specific requirements for a common-law marriage to be recognized vary by state. Generally, couples must live together for an amount of time, but the length depends on the state. Some states, like Oklahoma, may have conflicting laws regarding common-law marriage. New Hampshire, for instance, only recognizes common-law marriages for inheritance purposes.
Under the United States Constitution, the full faith and credit clause mandates that all states recognize validly contracted common-law marriages from other states. This means that if a couple is legally married under common law in one state and moves to another state that does not recognize common-law marriage, their marriage will still be recognized as valid in the new state.
It is important to note that the law regarding common-law marriage is subject to change, and individuals should refer to the family laws in their specific state for the most up-to-date information.
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The impact of the Obergefell v. Hodges ruling
The Obergefell v. Hodges ruling in 2015 was a landmark decision by the United States Supreme Court, with far-reaching implications for same-sex marriage rights in the country. The ruling established that the fundamental right to marry is guaranteed to same-sex couples by the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the US Constitution. This marked a significant shift in the legal recognition of same-sex marriages and had a profound impact on the lives of LGBTQ+ individuals and couples across the nation.
Prior to the Obergefell ruling, the legal status of same-sex marriage varied across different states, with some states recognising it while others had bans in place. This created a complex and inconsistent landscape for same-sex couples, where their marital status and associated rights could differ depending on their location. The Obergefell ruling changed this by requiring all 50 states and other territories to perform and recognise same-sex marriages on equal terms as opposite-sex marriages. This ensured uniformity and equal rights for same-sex couples regardless of their state of residence.
One of the key impacts of the ruling was the recognition of same-sex marriages performed in other jurisdictions. Before Obergefell, some states refused to recognise out-of-state same-sex marriages, creating legal complexities for couples who moved between states. The ruling established that states must recognise valid same-sex marriages performed in other jurisdictions, ensuring that couples' marriages are respected and recognised nationwide.
The decision also had significant implications for the rights and benefits associated with marriage. Same-sex couples were now entitled to the same legal rights and privileges as opposite-sex couples, including adoption, parental rights, property transfer, and other benefits previously denied to them. This ruling not only ensured legal equality but also contributed to the social acceptance of same-sex couples and their families.
The economic impact of the ruling was also notable. A report by the Williams Institute at UCLA School of Law estimated that weddings by same-sex couples generated a $1.58 billion boost to the national economy and $102 million in state and local sales tax revenue following the legalisation of same-sex marriage.
While the Obergefell v. Hodges ruling was celebrated by many as a victory for equality and civil rights, it also faced criticism and opposition. Some argued that the ruling undermined the democratic process by overruling state-level decisions on same-sex marriage and imposing a uniform definition of marriage nationwide. There were concerns about judicial overreach and the impact on long-standing social institutions. Nonetheless, the ruling solidified same-sex marriage rights in the US and paved the way for further advancements in LGBTQ+ rights and recognition.
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The Full Faith and Credit Clause
The clause's application to state-sanctioned same-sex marriages, civil unions, and domestic partnerships remains unresolved. In 1996, the US Congress enacted the Defense of Marriage Act (DOMA), which defined marriage as being between one man and one woman for federal purposes and allowed states to refuse to recognize same-sex marriages performed in other states. However, in 2013, the US Supreme Court struck down this section of DOMA, finding that it violated the Equal Protection Clause of the US Constitution. Subsequently, in Obergefell v. Hodges in 2015, the Supreme Court ruled that the Due Process and Equal Protection provisions of the Fourteenth Amendment required same-sex marriage to be legalized nationwide. Despite this, states continue to have no constitutional obligation under the Full Faith and Credit Clause to recognize other types of marriages with which they disagree, such as marriages between first cousins.
While the Full Faith and Credit Clause promotes uniformity and prevents forum shopping, its application is complex and has been the subject of robust jurisprudential discussions. The limits on Congress's authority under the clause remain untested, and the Supreme Court has interpreted the clause differently for state judgments and state laws. Ultimately, the Full Faith and Credit Clause plays a crucial role in ensuring cooperation and respect among states within the US legal system.
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Frequently asked questions
Common-law marriage is recognized in the following states: Alabama, Colorado, District of Columbia, Florida, Georgia, Indiana, Iowa, Kansas, Montana, New Hampshire, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia. However, some states only recognize common-law marriages formed before a certain date.
No, common-law marriage is not recognized in all states. As of 2020, only eight states allow new common-law marriages to be formed. An additional five states allow common-law marriages formed before a specific date.
The requirements for a common-law marriage to be recognized vary by state but generally include living together for a certain period of time and holding themselves out to the world as a married couple.
Yes, common-law marriage is recognized in some other countries, such as Canada.
