The phrase “common law marriage” is used more frequently than the actual legal status, which is in fact only recognized in a handful of locations in the U.S.
A common law marriage is a union of two people that has not been legitimized by legal (documentary) or religious means. In general, it’s when two people live together and represent themselves as a married couple without the official or traditional trappings of a legal or religious ceremony.
Common law marriage is only a recognized legal status in nine states: Colorado, Kansas, Montana, Rhode Island, Iowa, South Carolina, Utah, Texas, as well as the District of Columbia. Many states have specific limitations to this status, such as Oklahoma requiring a marriage license, or a date after which such relationships will not be legitimized. New Hampshire recognizes it for the purpose of inheritances only. Some Native American tribes practice common law marriage. It was never allowed in 13 other states and has been discontinued in another 27 states.
Texas has two forms of common law marriage. One requires couples to swear a Declaration of Informal Marriage to the city clerk, which confers the same legal rights and responsibilities as a normal marriage and creates an easier process for dissolving the relationship and determining inheritance. The state also allows common law marriage by the usual means of creating joint accounts and holding out as a married couple. However, if a common law marriage is ended by a breakup and no further action is taken for two years, the state no longer considers it valid.
If a couple meets the required criteria of common law marriage in a state where it’s allowed and then move to another state, that status is carried with them to the new state. Also, same-sex couples who lived together and met the common law marriage criteria prior to same-sex marriage being validated by law may now claim retroactive rights in some states.
Alabama voted to remove common law marriage as a legal status as of January 2017. Among the reasons cited for discontinuing this status was the difficulty of determining if a common law marriage existed when a couple broke up, leaving judges to decide whom to believe. Some people point to the increasing frequency of cohabitation as a looming problem that will continue despite states stepping back from the legal status of common law marriage.
Massachusetts, where common law marriage is not recognized, treats shared property like a contract rather than delving into whether a couple shared mutual intent when they made purchases or contributed to the other’s accounts.
Proof of common law marriage are cohabitation, reputation, and contract, as evidenced by the following:
- Mingling financial accounts
- Living together
- Making major purchases jointly (such as a house)
- Introducing yourselves as Mr. and Mrs. or as a married couple
- Sharing the last name
- Naming one another as spouse on official documents (such as health insurance, wills, etc.)
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History of common law marriage
In frontier days it was difficult for couples to solemnize marriages due to distances, difficulty of travel, and responsibilities at home. Common law marriage was accepted, with proof, for purposes of settling estates and establishing child support. While the practice fell out of favor over the intervening decades it has remained on the books in some states. Now that cohabitation is common, states are phasing out common law marriage and most often treating the dissolution of such arrangements as contractual partnerships.
Problems with common law marriage
In many states, common law marriage exists because it hasn’t been specifically banned. Legislation usually creates such status or sets criteria for common law marriage to be recognized, but case law may do the same in the absence of legislation.
The issue in most states arises when a couple breaks up and one tries to use the traditional avenue of divorce to capture half of the assets he or she contributed to during the relationship. If it’s a common law marriage state at this point courts are required to determine if the couple had legally achieved that status. Most experts say it becomes “he said, she said.”
There is a mistaken assumption that common law marriage is “automatic” if a couple has been living together a certain period. This is generally untrue as other criteria must be met. However, the American Bar Association suggests cohabiting couples should write a contract that delineates the role of each and the distribution of assets or inheritances associated with the relationship when one partner dies or the couple dissolves the relationship. The financially disadvantaged partner without such a contract remains vulnerable if the other dies because most states retain a familial inheritance law that favors the deceased’s blood relatives over even a long-term partner.
Misconceptions about common law marriage
Many people believe the often-repeated myth that a couple has entered common law marriage when they’ve lived together for seven years but it’s not that straightforward.
In Rhode Island, a judge must take into account whether a couple had presented themselves publicly as married, including keeping joint accounts and making major purchases coequally. A recent ruling considered a couple’s status according to how long they cohabited, whether they wore wedding rings, and whether they listed one another on health and life insurance as being equal to a spouse. These criteria allowed a judge to order that the couple’s assets be divided equally when the relationship ended, as they would in the divorce of a married couple. When appealed to a higher court, the judgement was reversed, citing a lack of mutual intent.