Common-law marriage is a legal term that seems to be gaining popularity recently. It is one of those legal ideas that almost everyone seems to have heard about, nevertheless not many people have a true understanding of its details.
Common-law marriage is becoming a source of concern for many people recently because of the information that is in circulation in our society.
You may have heard a news story about a common-law spouse, or have heard people say things similar to, “If you live together for 10 years, you’re common-law married.”
Others may have told you that you’re common-law married if you’re living together with a romantic partner, even if you’ve never told anyone you’re married or never planned to be. This kind of scenario can be a moment of realization, and no small source of concern.
While all of these encounters with common law marriage have the air of legitimacy to them, yet don’t have much substance since the topic is one of the most widely misunderstood legal issues around.
Although common law marriage is valid, it is much different from the ideas that you might have heard over and over again.
What Is Common Law Marriage?
Common-law marriage is a concept that has been around since the 1800s. Common-law marriage is a method that allows couples to be legally married without the formality of a ceremony, witnesses, and a marriage license that is statutorily allowed (either explicitly or implicitly by not being statutorily prohibited) in some countries.
In the case of common law marriage, a couple can become legally married with no participation in a religious or civil rite, 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.
What countries have common law marriage?
In addition to regular marriage, Australia, Brazil, Nigeria and 11 US states recognize common law (or de facto) marriage, which allows one or both cohabiting partners to claim, under certain conditions, that an informal union is a marriage.
Common-law marriage is allowed in a small number of states in the United State of America: 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.
Is Common-Law Marriage Exists In Nigeria?
common law marriage exists and is prevalent in Nigeria and is commonly known as customary marriage.
This marriage is done based on the customary law in Nigeria. This marriage is practised among all the tribes in Nigeria although there exist statutory marriages
This involves the payment of the bride price. What is a bride’s price? It is any gift or payment, in money, natural products or cowries or any kind of property, to the parent or guardian of a female person on the account of a marriage of that person which is intended or has taken place.
In most Nigerian tribes, the bride price is paid to the father of the bride and it’s often tagged the completion of an engagement.
Does Common-law Marriage Still Exist?
Common-law marriage is allowed in a minority of states. A common law marriage is a legally recognized marriage between two people who have not purchased a marriage license or had their marriage solemnized by a ceremony. Not all states have statutes addressing common law marriage.
In the past, Pennsylvania, Ohio, Indiana, Georgia, and Florida permitted marriage by common law, but no longer do. In these states, common law marriages entered into earlier than a specific date are accepted.
For example, couples in Ohio who entered into marriage by common law earlier than October 10, 1990, are legally married, but attempts at common law marriage after that date are not recognized as valid.
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, such a 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 decisions).
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 a cohabitating couple as a sort of quasi-marriage. Neither description is correct.
Once more, if a couple is married by common law, that couple is as legally married as any other couple.
Merely living together, despite the length of time involved, does not produce 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 incorrect.
What Is Common-Law Divorce?
There is no such thing as common law divorce. Whereas it is possible to get married through common law, you cannot get divorced by common law.
There are three ways to end a marriage: a court annuls the marriage, a court ends the marriage in a divorce or the death of one spouse. 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.
Subsequently, your marriage is still valid until the court approves your divorce or annulment request.
Common-Law Marriage Requirements
Even though the requirements for what a couple must do to become married by common law differ slightly by state, the states exhibit a lot of similarities regarding common law marriage laws – and, generally, these requirements are not difficult to meet.
Regrettably, issues can crop up 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 several 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:
- 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 at least 18 for such marriage to be valid.
- Mental Capacity. Each partner in the relationship must have the mental capacity to marry. Most people have the capacity, but those with cognitive or developmental disabilities that affect their ability to make knowing choices may not get married by common law.
- 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 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 before the death of a spouse 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 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
Above and beyond the state-specific requirements, common-law marriages can involve practical or less commonly encountered issues.
Again, with any legal issue involving common law marriage, specific answers to any question can differ by state, but some general principles apply in many situations.
1. Name Changes
Common-law marriage does not affect name change in any way. Whether married or not, anyone can change his or her name by going through the required procedure – there is no condition that you have to go through an officiated, solemnized wedding ceremony or common law marriage to change your name.
This process usually involves filing a petition with a court, attending a hearing, publishing a notice of the proposed name change in a local paper for the record, and notifying government agencies and changing official records once a court approves of the change.
2. Moving Between States
Albeit not all state recognizes common law marriage, nonetheless your marriage is valid in all 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 their 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, some situations 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 before same-sex marriages became 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.
Some FAQ About Common-Law Marriage
Is a common-law wife entitled to anything?
Being in a so-called “common law” partnership will not give couples any legal protection whatsoever, and so under the law, if someone dies and they have a partner that they are not married to, then that partner has no right to inherit anything unless the partner that has passed away as stated in their will that they.
Can a common-law wife collect Social Security?
Common-Law Marriages Are Entitled to the Same Benefits As “Traditional” Marriages. The Social Security benefits you receive as a common-law marriage couple include spousal benefits, survivor benefits and even benefits from an ex-common law spouse.
When a husband dies does the wife get his Social Security?
When a retired worker dies, the surviving spouse gets an amount equal to the worker’s full retirement benefit. Example: John Smith has a $1,200-a-month retirement benefit. His wife Jane gets $600 as a 50 per cent spousal benefit. The total family income from Social Security is $1,800 a month.
Does the IRS consider common law marriage?
Filing and Common-Law Marriages
The IRS recognizes common-law marriages as legal marriages. … If you have a valid common-law marriage, you are considered married for tax purposes.
Can you kick a common-law partner out?
A common-law spouse who owns their home can kick their partner out at any time, for any reason (although it’s always recommended you speak with a lawyer before doing so!). Married spouses cannot. Until a divorce is granted or a court order otherwise, both spouses have a right to live in the matrimonial home.
Common-law marriage – the reality
Many couples believe that moving in together creates a common law marriage, giving you the same rights as if you were married. In reality, moving in together does not give you automatic rights to each other’s property, no matter how long you live together.
Wrap It Up!
In most cases, courts look at claims of common law marriage with scepticism and scrutiny because of the potential of abuse.
Most of the time, common law marriage is an issue of contention; one person asserts that marriage exists while another person – or that person’s estate – disputes the claim.
Courts to a large extent prefer situations in which your marital status is clear. That being said, 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 family lawyer is your best option.
How has common law marriage affected your life, your relationships or that someone you know? Please feel free to share with us in the comment section below. I sincerely value your input.
