What is Common Law Marriage


What is Common Law Marriage

Common law marriage is a marriage that results from the actions of a couple, independent of the state. That is, a couple that fulfills the requirements to establish a common law marriage becomes legally married even though they have not obtained a marriage license or fulfilled the requirements of a state's statutory marriage laws, and have not had a marriage ceremony. Under common law requirements, that typically involves a relationship in which:

  • Cohabitation - The couple lives together as a married couple,

  • Mutual Agreement - The couple agrees that they are married, and

  • Cohabitation - The partners hold themselves out to the world as a married couple.

Most states either never permitted common law marriage or have passed statutes that eliminate common law marriage, such that no private agreement or period of cohabitation within their borders will result in a legal marriage. At the same time, when a couple became married under the common law of a different state or country, their marriage will normally be recognized throughout the United States. The Full Faith and Credit clause of the U.S. Constitution normally compels the recognition of a marriage made valid under the laws of a sister state, and states also recognize most foreign marriages.

In a state that recognizes common law marriage, long-term partners who have not legally married may be able to assert the rights of a married couple. For example, they may be able to:

  • Be treated by medical care providers as a spouse, where their partner is hospitalized or is not competent to make medical decisions;
  • Claim inheritance rights when their partner passes away;
  • Claim a share of assets that are exclusively in the other partner's name as part of a marital estate;
  • Obtain an order of spousal support following separation or divorce;

A person who is claiming common law marriage may face resistance from their partner in the context of a break-up or divorce, or their partner's family in the context of disability or inheritance. Common law partners will benefit from having documents that formalize each other's rights in emergency situations or after death, including powers of attorney, advance healthcare directives and wills that formally recognize their spouse's inheritance rights. However, in states that do not recognize common law marriage the rights of a married partner are not available outside of marriage or, where available and subject to any limitations imposed by state law, a civil union or equivalent.

In states that recognize common law marriage, once the requirements have been met the marriage is normally treated in exactly the same manner as any other marriage. As a consequence, a valid common law marriage must typically be ended through a formal divorce process.

States That Permit Common Law Marriage

At present, approximately eleven states and the District of Columbia still recognize common law marriages.

  • Alabama - Common law marriage occurs when a couple has the capacity to enter into a marriage, they are adults or are at least sixteen-years-old with legal parental consent, they agree to be married, there is public recognition of the existence of their marriage after two-hundred-and-sixty-five days, and the marriage is consummated.

  • Colorado - Common law marriage occurs when a couple are adults, they consent to be married, they hold themselves out as married, they cohabit, and they have the reputation within the community of being married.

  • District of Columbia - Common law marriage occurs when a couple is legally able to marry, it is their intention to establish a marriage, and if the couple is known to the community as married.

  • Iowa - Common law marriage occurs when a couple has the present intent to be married and agree to be married, they cohabit continuously, and they publicly declare that they are husband and wife.

  • Kansas - Common law marriage occurs between two adults with the legal capacity to marry, if they agree to marry, and they hold each other out to the public as a married couple.

  • Montana - Common law marriage occurs when a couple is competent to enter into a marriage, they mutually consent and agree to be married at common law, they cohabit, and they are reputed in the community to be husband and wife.

  • Oklahoma - Common law marriage occurs when a couple is legally competent, they agree to enter into a marriage relationship, and they subsequently cohabitate for long enough to demonstrate that a marital relationship exists.

  • Rhode Island - Common law marriage occurs when a couple seriously intends to enter into a marital relationship, and their subsequent conduct is of such a character as to lead the community to believe that they are married.

  • South Carolina - Common law marriage occurs when a couple has the present intent to marry, and they intend for others to recognize them as married.

  • Texas - Common law marriage occurs when a couple agrees to be married, they subsequently cohabit within the State of Texas, and after entering into the agreement they represent to others within the State of Texas that they are married. It may also occur through a couple's entering into a Declaration of Informal Marriage, a document executed by the parties, sworn or affirmed in the presence of a county clerk, and that is formally recorded in county records.

  • Utah - Common law marriage must be formalized by a court or administrative order, finding that the parties are of legal age and are capable of giving consent to marriage, they are legally capable of entering into marriage, they have cohabitated, they have mutually assumed the rights, duties and obligations of a married couple, and they hold themselves out as married and have acquired reputation in the community as a married couple.

States Permitting Certain Common Law Marriages

A few states that have eliminated common law marriage continue to recognize common law marriage under limited circumstances:

  • Georgia - If the elements of common law marriage were satisfied before January 1, 1997.

  • Idaho - If the elements of common law marriage were satisfied before January 1, 1996

  • New Hampshire - For inheritance only.

  • Ohio - If the elements of common law marriage were satisfied before October 10, 1991.

  • Pennsylvania - If the elements of common law marriage were satisfied before January 1, 2005.

Demonstration of an Intention to be Married

Although the factors used as evidence of an intent to be regarded as married, or as sufficient evidence of being regarded by the community as married, will vary by state and under the facts of a specific marriage, factors suggestive of marriage include:

  • Filing joint state and federal tax returns;

  • Using the same surname;

  • Joint ownership of assets and real estate;

  • Beneficiary designations on financial accounts, retirement accounts, and insurance policies; and

  • The testimony of members of the community that the couple was regarded as married.

Void Marriages and Common Law Marriage

In states that don't allow common law marriage, an unusual situation can arise -- a couple that underwent what they thought was a valid, state-authorized marriage may find that their marriage is invalid. For example, a divorce may not be properly finalized before a spouse's second marriage occurs, rendering that second marriage invalid. In a jurisdiction that recognizes common law marriage, although the legal marriage may be void, the parties subsequent actions may cause them to nonetheless be partners in a common law marriage. In a state that does not recognize common law marriage, the marriage is void.

Some states provide statutory remedies to address a situation in which the parties to a marriage find out that, for reasons they did not know at the time, their marriage is void. For example, some states permit a secret wedding ceremony to be performed by a judge, with a sealed or backdated order of marriage, such that the marriage becomes valid from its inception and the rights of the spouses are protected.

Copyright © 2003 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on Aug 1, 2016.