Common-law marriage (or common law marriage)
All U.S. jurisdictions recognize common-law marriages where they have been validly contracted in another jurisdiction that still permits the common law contract of a marriage. Only a dozen jurisdictions, however, still permit marriages to be contracted in this way. They are: Alabama, Colorado, the District of Columbia, Iowa, Kansas, Montana, Oklahoma, Rhode Island and Providence Plantations, South Carolina, Texas, and Utah. Additionally, New Hampshire recognises common-law marriage solely for probate purposes.
That is, when a party to a common-law marriage dies, the state of New Hampshire will posthumously recognise the marriage to ensure the surviving spouse inherits without any difficulty; but the marriage will not be recognised by the state while the parties are both still living.
In Utah, in the event of common-law marital breakup, the law requires the parties get a declaration of marriage from a court of competent jurisdiction not later than one year after the breakup of the common-law marriage, or the state will not recognise the marriage, e.g., for purposes of hearing disputes over division of marital property in the family court as a divorce question, instead of the civil court as a contract question.
U.S. States that recently abolished the contract of a common-law marriage include: Pennsylvania, September 2003; Georgia, January 1997; Idaho, January 1996; and Ohio, October 1991.
In general, any couple who present themselves as husband and wife will be presumed to be husband and wife until proven otherwise – it’s just how people behave. For a couple who contracted their marriage as a common-law marriage, since they can pull out no marriage certificate, there are a number of ways they might be required to prove they have a valid contracted marriage. These vary from jurisdiction to jurisdiction but generally include one or more of the following:
1. The parties hold themselves out to society as husband and wife
- This cannot be unintentional or play-acting, but they must also behave as husband and wife when society is not around to see them.
- Change of name of one spouse to that of the other (or amalgamation of names, with Mr. Smith and Ms. Jones becoming Mr. and Ms. Smith-Jones), filing of tax returns under “married” status, consistent address of each other as spouses, and so on. The action cannot be inadvertent or caused by others.
2. The parties must mutually consent and have agreed to be presently married
- An agreement to be married in the future, i.e., an engagement or a hand-fasting, is generally proof that the parties are NOT married yet.
- As in statutory marriage, if either party does not consent to the marriage but is, or feels, coerced into it in some way, then the marriage is not valid.
3. The parties often must cohabit for a specified minimum period of time.
4. Some states require a declaration be made before a judge or filed with the county clerk for the marriage to be recognised.
As noted above, a jurisdiction may permit common-law marriage, but no place allows “common-law divorce.” Because an old style common-law marriage is a legally binding marriage, the only way to get out of it is to go to court and file a petition for dissolution of marriage (sometimes called, if archaically so, a bill of divorcement).
In Texas, for example, if a couple do not commence a proceeding to prove their relationship was in fact a real common-law marriage within two years of the end of the relationship, the law decrees and acknowledges the marriage never existed in the first place, and no agreement to be married was ever present. (viz., by virtue of finding the parties never agreed to be married).
Note: The article above may not contain current information.
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