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Marriage Laws »
Common Law Marriage
There are really two types of common law marriages. The "traditional" common law marriage is one which is entered into without formalities. This type of marriage is usually defined as the intent to be married combined with living together and holding one's self out to the world as married. States which recognize the "traditional" form of common law marriage include (as of 1998) Alabama, Colorado, District of Columbia, Georgia, Idaho (only if before 1-1-96), Iowa, Kansas, Montana, Ohio (only if before 10-10-91), Oklahoma, Pennsylvania, Rhode Island, South Carolina and Texas.
A different kind of common law marriage is represented by the situation where a valid marriage is formed from an invalid marriage after the impediment is lifted. For example, a party might be underage at the time of the marriage. Continued cohabitation as husband and wife after the underage party attains majority, however, results in the marriage ripening into validity where this form of common law marriage is recognized. Note that the courts may be reluctant to find a valid marriage when the parties have entered into a relationship knowing it to be polygamous, even after the impediment to marriage has been terminated.
In those states which recognize "traditional", common law marriage, there are several requirements for the formation of such a marriage. The first is the express mutual consent and intent to be married. In addition, parties must hold themselves out to the world as being married or "must openly and professedly live as husband and wife" in most of these jurisdictions. While intent may certainly be proven by words, the incidence of "swearing contests" between parties who dispute whether or not there was an intent to be married have induced the courts to rely on parties actions and conduct at least as much as there were in trying to resolve this issue. Was there a joint bank account? Was the name on it "Mr. & Mrs."? How did the lease read -- "Mr. & Mrs."? By the evidence of the common law marriage involves examining documents such as these to divine the intent of the parties. There is no specific length of time recognized generally as a requirement for the formation of the common law marriage.
Even if the state does not recognize common law marriages itself, it will usually recognize one that was formed in a state which does recognize common law marriages. In addition, most states will recognize a common law marriage if the parties at some time during their period of living together resided in a state that allows the formation of common law marriages. Even if the parties begin living together in a state that does not allow the formation of common law marriages, they can inadvertently form a common law marriage, so long as the requisite "holding out," intent and cohabitation are present, if they move to a state that allows common law marriages. On the other hand, a temporary visit to a state that allows the formation of a common law marriage, so long as the parties are domiciled in another state which does not recognize them, usually will not result in a valid common law marriage.
Because a common-law marriage is not formally recorded, the couple, if challenged, may have to prove the existence of their marriage contract. They may have to prove that they live together as man and wife and present themselves to the public as a married couple. Where recognized, a common-law marriage is as valid as a typical marriage.
Ascertain if the state/country you are living in recognizes common law marriages.
There are four requirements for a valid common law marriage. Just living together isn't enough to validate a common law marriage:
- You must live together.
- You must present yourselves to others as a married couple. Some ways of doing this are by using the same last name, referring to one another as husband or wife, and filing a joint tax return.
- Although not defined, you have to be together for a significant period of time.
- You must intend to be married.
In the U.S., every state is Constitutionally required to recognize as valid a common-law marriage that was recognized in another state.
Eleven states and the District of Columbia currently recognize common-law marriages. Each of these jurisdictions has unique requirements for common-law marriage:
The requirements for a common-law marriage are: (1) capacity; (2) an agreement to be husband and wife; and (3) consummation of the marital relationship.
A common-law marriage may be established by proving cohabitation and a reputation of being married.
- District of Columbia:
The requirements for a common-law marriage are: (1) an express, present intent to be married and (2) cohabitation.
The requirements for a common-law marriage are: (1) intent and agreement to be married; (2) continuous cohabitation; and (3) public declarations that the parties are husband and wife.
For a man and woman to form a common-law marriage, they must: (1) have the mental capacity to marry; (2) agree to be married at the present time; and (3) represent to the public that they are married.
The requirements for a common-law marriage are: (1) capacity to consent to the marriage; (2) an agreement to be married; (3) cohabitation; and (4) a reputation of being married.
To establish a common-law marriage, a man and woman must (1) be competent; (2) agree to enter into a marriage relationship; and (3) cohabit.
A common-law marriage may be established if a man and woman exchange words that indicate that they intend to be married at the present time.
- Rhode Island:
The requirements for a common-law marriage are: (1) serious intent to be married and (2) conduct that leads to a reasonable belief in the community that the man and woman are married.
- South Carolina:
A common-law marriage is established if a man and woman intend for others to believe they are married.
A man and woman who want to establish a common-law marriage must sign a form provided by the county clerk. In addition, they must (1) agree to be married, (2) cohabit, and (3) represent to others that they are married.
For a common-law marriage, a man and woman must (1) be capable of giving consent and getting married; (2) cohabit; and (3) have a reputation of being husband and wife.
New Hampshire recognizes common law marriages only for the purposes of inheritance. In any other state the only marriage that is recognized as valid is an official one. However, if you enter into common law marriage while living in one of the states that permits them, and then move to a state that doesn't, the new state should recognize your marriage as being legally entered into in the other state.
Another thing to consider is that it takes more than just living together to have a common law marriage. Not every couple that lives together intends to be married. The intention to be married is one of the required elements to create a common law marriage. Another element that is necessary to create a common law marriage is that the couple must present themselves as married to others. This means referring to each other as the other's husband or wife, using the same last name, filing joint tax returns, and things of that nature.
Suppose you opt for the common law marriage believing that, if the relationship ends, you'll avoid a nasty divorce proceeding. This is a bad reason to have a common law marriage. A common law marriage is legally recognized as a marriage and the way to end it is by getting a divorce. You won't be able to escape the formalities on this end as you did at the beginning. In fact you might find your divorce a little more complex, because first there will have to be a trial to prove whether or not you were married. If the court decides that your relationship was a common law marriage, then you'll need to get a divorce to end it.
The problem of proving whether or not you are married under the "common law" can plague you even if you don't want a divorce. This is because the marriage relationship involves various legal rights, and if you want to exercise any of those rights, you may find yourself being challenged in court. Consider the following scenarios.
Your common law wife is killed in an automobile accident. The accident is the other driver's fault and you want to file a wrongful death lawsuit so that you can be compensated for your loss and your deceased wife's loss. In order to have standing to bring the suit, you need to have a legally recognized relationship to the deceased. The issue of whether or not your relationship constituted a common law marriage may end up being litigated.
Your common law husband dies without a will. You don't have any children together. You could end up in a court fight with his parents (or other close relatives) about who should inherit his property. They will be claiming to be entitled to his property because the two of you were never married. You will be trying to prove that your relationship constituted a common law marriage.
These and various other legal rights are impacted by the marriage relationship. Having a common law marriage could require you to go to court to prove your married before you can exercise your rights as husband or wife. If your intent is truly to be married, you are probably better off avoiding a "common law" marriage.
Tennessee has employed a doctrine of "estoppel to deny marriage." See Note, Informal
Marriages in Tennessee - Marriage by Estoppel, by Prescription and by Ratification, 3
VAND. L. REV. 610, 614-15 (1950).
- According to OCC, estoppel is based upon the common law that may apply under many circumstances, but a common one is where an individual has obtained an invalid divorce. The estoppel principle is applied to an invalid or ineffective divorce and is used to prevent parties to such divorce from later asserting that they are still validly married. Thus, the parties are precluded from denying that the divorce is valid for Social Security purposes. The need to develop estoppel most often occurs in claim situations where a divorce was obtained in a State or foreign country where neither party was domiciled. The need may also occur in situations where divorce proceedings were defective. For example, an otherwise valid divorce was obtained but it was ineffective because the judge failed to sign it, the final decree was not properly recorded, or the court costs were never paid. Even though such a divorce is not valid under State law, if the estoppel principle applies, the divorce is treated as a final divorce for Social Security purposes.
States which have abolished common-law marriage by statute.