Documents That Establish A Common Law Marriage

The concept of common-law marriage has existed since the United States began. Common-law marriage is fully recognized in seven states and the District of Columbia. States have slowly stopped using common-law marriage, some as early as 1646 (Massachusetts) and others as recently as 2019 (South Carolina).

The foundation of a common-law marriage is:

• Mutual consent or agreement of the parties to be spouses, and
• A mutual and open assumption of a marital relationship.

But if you want to take advantage of the legal benefits of marriage, you must prove that your common-law marriage exists. You must show evidence by providing certain documents.

This article will help you understand which required documents will help prove that a common-law marriage exists.

How To Prove a Common-Law Marriage Exists

Each common-law marriage state has its own rules about what you need to do to have a common-law marriage. Generally, you will need documents that show a long-term domestic partnership.

For example, common-law marriage in Texas will require proof that you and your partner agreed to be married and live together in Texas as a married couple (cohabitation).

Here are a few documents that can be used to establish a common-law marriage.

Affidavits

An affidavit is a written statement in which you swear under oath that the statement is true. You can use two different types of affidavits to prove a common-law marriage.

Personal affidavits: You can write a personal affidavit stating that you and your partner are married. In your personal affidavit, include the following:

• Date and location where you and your common-law spouse mutually agreed to become spouses
• Marriage ceremony or something similar
• Previous marriages (if so, list the date of divorce, annulment, or date from the former spouse's death certificate)
• Any other details that will help show a spousal relationship

Friend and family affidavits: Affidavits from people who know you and your partner (friends, family, etc.), and are familiar with your relationship, will be helpful to prove your common-law marriage.

Your friends and family should include the following in their affidavits:

• How they know you (friend, family, co-worker, etc.)
• Length of time you and your spouse have lived together
• Your address
• If there was a public announcement of your marriage (save the date, wedding invitation, social media post, etc.)
• Whether your friends, neighbors, and family think you are married

Government Identification

• Driver's license or Social Security number card that shows a name change that matches your spouse's name
• Birth certificates (original or certified copy) that name you and your common-law spouse as parents of your child
• Any documents that show one spouse has assumed the surname of their common-law spouse

Property

• Deeds showing title to property held jointly by both parties in the common-law marriage
• Bank statements and checks showing joint ownership of the accounts
• Loan documents, leases, mortgages, and promissory notes that show joint financial obligations of the parties
• Credit card accounts in the names of both common-law spouses
• Mail addressed to you and your common-law spouse

Tax and Insurance

• Tax returns that show you and your spouse filed a joint tax return
• Insurance policies naming your spouse as beneficiary

Education, Employment, and Church Records

• School records listing the names of both common-law spouses as parents
• Employment records listing your common-law spouse as an immediate family member
• Church records indicating familial status, membership information, baptismal certificates of the spouses' children, Sunday School registration forms, etc.

What if My State Does Not Recognize Common-Law Marriage?

Suppose your state does not recognize common-law marriage. In that case, you may be able to establish a common-law marriage if you previously lived in a common-law state and can show written documentation as proof.

Have a Question About Marriage Laws in Your State? Talk to an Attorney

Common-law marriage is a unique legal concept. If you and your partner meet the requirements in your state, it could significantly impact what happens to your property in the event of death or divorce.

Find a family law attorney near you for legal advice about marriage laws in your state. An experienced family law attorney can help you with your state's requirements.