Common Law Marriage

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Marriage is the legal or formally recognized union between two people as partners in a relationship. Getting married requires the couple obtain a marriage license in the jurisdiction in which the marriage takes place, and involves a wedding ceremony of some type. Many states recognize what is known as “common law marriage,” which refers to a relationship in which two people not formally married reside together in an intimate relationship, and exhibit other behaviors generally attributed to married people. To explore this concept, consider the following common law marriage definition.

Definition of Common Law Marriage

Noun

  1. A relationship in which a couple lives together, holding themselves out to family, friends, and the community as being “married,” without obtaining a marriage license or going through a formal ceremony.

Origin

Ancient Greek and Roman civilizations

Requirements for Common Law Marriage

While the requirements for common law marriage in each state vary, most have certain criteria that must be met before a couple is considered married according to common law. In all common law marriage states, living together is not enough on its own to constitute a valid marriage. Other requirements for common law marriage may include:

  1. The couple must live together for a specific amount of time, which varies by state
  2. The couple must be eligible to marry legally. This means that both parties must be of sound mine, and not married to someone else. Both parties must also be at least 18 years of age unless specified by state statue.
  3. Both parties must intend to be married. This means that one person cannot be forced or coerced.
  4. Both parties must present themselves to family, friends, and the community as being married. For instance, they must refer to each other as their spouse, use the same last name, and have joint and commingled assets.

States That Recognize Common Law Marriage

As of 2015, ten states fully recognize common law marriage, though each has its own specific requirements or criteria that must be met for the marriage to be considered valid. In addition, several other states recognize common law marriage within a limited scope. The states the fully recognize common law marriage are:

  1. Alabama
  2. Colorado
  3. District of Columbia
  4. Iowa
  5. Kansas
  6. Montana
  7. Rhode Island
  8. South Carolina
  9. Texas
  10. Utah

In addition:

  • Georgia recognizes common law marriages created before January 1, 1997
  • Idaho recognizes common law marriages created before January 1, 1996
  • New Hampshire recognizes common law marriages for inheritance purposes
  • Oklahoma recognizes common law marriages created before November 1, 1998
  • Ohio recognizes common law marriages created before October 10, 1991
  • Pennsylvania recognizes common law marriages created before January 1, 2005

Ending a Common Law Marriage

Though common law couples did not follow the legal route to become married, ending a common law marriage is a different story. The common law marriage must be ended through legal divorce proceedings, just as it would if the couple had obtained a marriage license and held a formal ceremony. The divorce proceedings entail dividing marital assets and debts, as well as child custody proceedings if there are children of the relationship. One difference in dissolving a common law marriage is that, if one spouse tries to deny the existence of the union, the other party may have to provide evidence that their spouse intended to be part of the marriage. In order for the union to be officially dissolved, a court order is required.

Death of a Common Law Spouse

When two people are legally married, the surviving spouse is typically entitled to insurance, social security benefits, and other financial assets and benefits. In a common law marriage however, the surviving spouse may have to prove that the common law marriage existed before he or she is entitled to receive the benefits. This may also hold true when it comes to the division of property after death of a common law spouse, unless there is a valid will or estate plan.

Proving a Common Law Marriage Exists

In proving a common law marriage exists, the best evidence is a written agreement signed by both parties. If such an agreement was not made however, proving a common law marriage exists can be more difficult. Some courts will require evidentiary documents, such as the couple’s lease agreement, joint tax returns, joint bank accounts, or joint credit cards. A will referring to the other party as the spouse can also be used as evidence. The same is true for any other signed statements that refer to the other party as a spouse. Testimony of family, friends, employers, and other individuals that the couple represented themselves as married may be introduced.

In each jurisdiction, the court will determine which type of evidence it requires and accepts as proof. It is also vital for the couple, or surviving spouse, to be aware of the statute of limitations on proving the validity of such a marriage in their state. For instance, in Utah, a person only has up to one year after the marriage ends due to separation or death to prove that the marriage existed.

Same-Sex Common Law Marriage

As of 2015, only a handful of states formally recognize same-sex common law marriage. The remaining states are more gender specific with their common law marriage statutes. However, as more states allow same-sex legal marriages, it stands to reason that more states will become more open to same-sex common law marriages. The states that currently allow same-sex common law marriage include:

  • Iowa
  • Rhode Island
  • District of Columbia

Related Legal Terms and Issues

  • Estate Plan – A plan made by a person in which they specify how their assets are to be transferred after death.
  • Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
  • Scope – Relevant range of authority or practice, or range of control through a contract.
  • Statute of Limitations – An amount of time set by law in which legal proceedings can be pursued.
  • Will – A legal declaration expressing a person’s wishes after death.