Common law marriage is one of those legal ideas that everyone seems to have heard about, yet few people have a true grasp of the details. You may have read a news story about a common law spouse, or have heard people say things along the lines of, “If you live together for 10 years, you’re common law married.”
If you’re living together with a romantic partner, others may have told you that you’re common law married even if you’ve never told anyone you’re married or never intended to be. This can be an eye-opener, and no small source of concern.
All of these encounters with common law marriage have the air of legality to them, but don’t have much substance because the topic is one of the most widely misunderstood legal issues. While common law marriage is real, it is much different from the oft-heard notions you might believe.
What Is Common Law Marriage?
Common law marriage is a method of becoming legally married that is statutorily allowed (either explicitly or implicitly by not being statutorily prohibited) in a small number of states: Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. In three other states – Alabama, Rhode Island, and Oklahoma – state court cases have upheld the right for couples to get married through common law.
At one time, Pennsylvania, Ohio, Indiana, Georgia, and Florida allowed marriage by common law, but no longer do. In these states, common law marriages entered into prior to a specific date are recognized. For example, couples in Ohio who entered into a marriage by common law prior to October 10, 1990 are legally married, but attempts at common law marriage are not recognized as valid after that date.
Through a common law marriage, a couple can become legally married without participating in a religious or civil ceremony, and without receiving a marriage license or other official form of recognition from a state government agency. Though the method through which a couple becomes married by common law differs depending on state law, the process is relatively simple.
Essentially, a couple may become legally married through common law if they do all of the following:
- Live together
- Are capable of being married
- Intend to get married
- Hold themselves out as a married couple
If a couple is married through common law, that couple is a legally married couple with the same rights, obligations, and abilities as any other married couple. Common law marriages are no different from marriages that result from a religious ceremony, a civil ceremony at a courthouse, or any other legally recognized marital solemnization process. Therefore, a common law marriage is not a separate type or subset of any other form of marriage. Couples married through common law are legally indistinguishable from all other married couples in every way except for the method through which they entered into marriage.
It is important to understand that the laws about common law marriage can be both statutory (laws created by a legislature) and based on common law (laws that develop over time through court decision). As such, these laws can change at any time. If you ever have questions about the common law marriage laws in your state, or what your state does or does not allow, you should consult a family law attorney.
Living Together
The widely held belief that a couple can become legally married simply by living together for a specific length of time is completely erroneous. Barring the presence of other necessary elements, a cohabitating couple will never become married regardless of whether they live together for a day, year, decade, or longer. Furthermore, a couple can be married through common law without being together for any minimum time period.
The misconception that cohabitating couples are somehow married is commonly reinforced by media reports that describe such romantic partners as “common law couples,” or which describe one or both of them as a “common law spouse.” In these types of stories the term “common law marriage” is inappropriately used to describe a couple that is living together but who are not married, or as a way to describe the relationship status of cohabitating couple as a sort of quasi-marriage. Neither description is correct.
Again, if a couple is married by common law, that couple is as legally married as any other couple. Simply living together, regardless of the length of time involved, does not create a marriage by common law or any other method. Couples are either married or they are not, and describing any other kind of relationship as a “common law marriage” is legally inaccurate.
There Is No Such Thing as Common Law Divorce
While it is possible to get married through common law, you cannot get divorced by common law. Marriages can end in one of three ways: one spouse dies, a court annuls the marriage, or a court ends the marriage in a divorce. All divorces and annulments must go through the civil legal process, meaning you have to file documents with a court and ask the court to end your marriage. After that, your marriage does not come to an end until the court approves your divorce or annulment request.
Common Law Marriage Requirements
Though each state has slightly differing requirements for what a couple must do to become married by common law, there are many similarities between states – and, generally, these requirements are not difficult to meet.
Unfortunately, issues can arise when, for example, a couple splits up and one partner claims that they were married by common law. Because married couples have rights that non-married couples do not have – especially when it comes to property settlements, alimony, and inheritances – proving that a common law marriage exists (or existed) can be important for a number of reasons.
1. Eligibility
To be married through common law, all states require that both would-be spouses are eligible to enter into marriage and have the capacity to marry. There are several aspects of eligibility and capacity:
- Age. Both partners have to be at least 18 years old to enter into marriage by common law. While states typically allow people under the age of 18 to get married as long as either a court or a parent or guardian approves of the marriage, common law marriage usually requires both to be 18.
- Mental Capacity. Each partner in the relationship must have mental capacity to marry. Most people have capacity, but those with cognitive or developmental disabilities that affect their ability to make knowing choices may not.
- Consanguinity. A consanguineous marriage is one in which the spouses share a direct ancestor, such as a grandparent or great-grandparent. All states have laws that restrict who can get married based on the degree of relationship between the partners. While most states require that partners be no closer than third-cousins in order to marry, a minority allow marriages between partners as close as second or even first cousins.
- Existing Marital Status. People who are already married cannot enter into a common law marriage.
2. Intent
You cannot enter into a common law marriage by accident. All states require that to become married by common law, both spouses must have a present intent to enter into marriage (a present intent is different from an intention to be married at some point in the future).
For example, if you and your partner get engaged, you both may intend to enter into marriage, but the marriage will not take place until some time in the future. So, such a couple does not become married by common law when they get engaged even if they live in a common law marriage state. For a common law marriage to take place, both partners must have a present intent to marry, which is the intent to enter into marriage immediately.
3. Public Presentation as a Married Couple
Couples who want to be married by common law must do more than just have present intent – they must publicly represent themselves as a married couple.
Presenting yourself as married includes, for example, using your spouse’s last name as your own, applying for loans as a married couple, filing joint tax returns, or introducing yourselves to friends, family, or coworkers as a married couple. The public presentation requirement effectively means that you cannot be married by common law in secret – and must make your marital status known to others.
4. Cohabitation and Living as a Couple
Cohabitation and consummation can be – but are not always – needed for common law marriage. The cohabitation requirement means that, in general, a couple must live together continuously as spouses, not merely on occasion. However, there is typically no specific minimum time requirement involved for a court to find a common law marriage exists. (The one clear exception to this general rule is New Hampshire’s common law marriage statute, which states that a couple must have been living together for at least three years prior to the death of a spouse in order for the surviving spouse to be able to prove that a common law marriage existed between them.)
Similarly, states can require that you live together as a couple, meaning that a sexual relationship exists between you and your spouse. However, there is no clear standard as to how much of a sexual relationship there must be, or what characteristics it must have. Beyond that, courts have found common law marriages exist between partners who did not, because of infirmity or advanced age, have a sexual relationship, but who met all the other requirements for a common law marriage.
Other Common Law Marriage Issues
Besides the state-specific requirements, common law marriages can involve practical or less commonly encountered issues. Again, with any legal issue involving common law marriage, state-specific answers to any question can differ, but there are some general principles that apply in many situations.
1. Name Changes
Married or not, anyone can change his or her name by going through the necessary process – there is no requirement that you have to go through an officiated or solemnized wedding ceremony to change your name. This process typically involves filing a petition with a court, attending a hearing, publishing a notice of the proposed name change in a local paper of record, and notifying government agencies and changing official records once a court approves of the change.
2. Moving Between States
Let’s say that you and your partner live in a state that recognizes common law marriage, and are married as such. You then move to a state that does not allow common law marriage. What happens then? Fortunately, you have nothing to worry about: If you are married in one state, all other states must recognize your marriage, even if you move from a state that allows common law marriage to one that does not.
3. Living Together In a Common Law State Without Getting Married
For couples who live together in a state that recognizes common law marriage but who do not wish to be married, there is some risk that a court could find that a common law marriage exists. For example, common law marriage most often becomes an issue after a couple separates or one partner dies.
Let’s say you and your partner lived together in a state allowing common law marriage, had joint bank accounts, and even referred to yourself as husband and wife on occasion. Does that mean you entered into a common law marriage? If you died and left behind an estate plan that did not include your partner, it’s conceivable that your partner could successfully claim that you were married by common law. If so, your partner would earn spousal inheritance rights, which would significantly change any inheritance plans you had made.
In such situations, it is often wise for couples to create a contract or property agreement that explicitly states the nature of your relationship. You should also outline a property distribution plan that applies if you split up, stating that you have never intended to enter into a common law marriage.
4. Same-Sex Common Law Marriages
With the recent changes to laws about same-sex marriages, legal questions about the validity of same-sex common law marriages have arisen. While it appears that common law marriage laws now apply equally to same-sex couples, there are situations that may be less clear. For example, how a court would treat a same-sex couple that met all the requirements for a common law marriage prior to same-sex marriages becoming legal across the country may be difficult to determine. People in same-sex relationships who have questions about common law marriage should speak to an experienced family law attorney.
5. Marriage Upon Impediment Removal
In some situations, the partners in a romantic relationship may not meet some requirements necessary to become married by common law, while other common law marriage elements may be present. For example, if a couple living in a common law marriage state lives together, holds themselves out as a married couple, and intends to be married, they cannot actually be married if one of them is already married to someone else. However, once that impediment is removed, such as by the partner getting a divorce, the couple could then become legally married by common law.
Final Word
In general, courts look at claims of common law marriage with skepticism and scrutiny because of the potential of abuse. In most cases in which common law marriage is an issue of contention, one person claims that a marriage exists while another person – or that person’s estate – disputes the claim.
Courts much prefer situations in which your marital status is clear. Not only that, but being clear about your own marital status is always preferable to wondering whether you’re married or not. If you ever have a question about common law marriage, its implications, or how it applies to you, speaking to a lawyer is your best option.
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