In family law, common-law marriage is a legal marriage and an informal marriage. This means that the married couple never had a formal wedding ceremony and never got a marriage license or marriage certificate. But in states that allow common-law marriage, couples in a common-law marriage still might have the same rights as a married couple who went through a formal marriage process.
Generally, a married couple is common-law married when:
- They live together for a period of time (cohabitation)
- They hold themselves out to friends, family, and the community as "married"
Cohabitation as an unmarried couple is not enough to establish a common-law marriage.
In this article, you can learn more about the origins of common-law marriage, which states recognize it, and what is required for a couple to be common-law married.
Where Does Common-Law Marriage Come From?
In the United States, common-law marriage has existed since the colonial days, when America was still a colony of England. The first colonies of America were subject to England's rule, but Acts of Parliament did not apply to England's colonies unless colonies were mentioned by name.
Then, the Parliament of Great Britain passed the Clandestine Marriages Act of 1753. The Clandestine Marriages Act ended common-law marriages in England and Wales. This meant that subjects of England and Wales had to be married by the Church of England.
But this did not apply to American colonies. Common-law marriage survived in colonial America and is still alive today.
Common-Law Marriage Today
Common-law marriage is recognized in seven states and the District of Columbia. Also, nine states recognize common-law marriage with some restrictions.
Check this list of states to see which states recognize common-law marriage.
Requirements for Common-Law Marriage
States that allow for common-law marriage can create their own rules for who qualifies. Common requirements for common-law marriage states include:
- Living together: You may have heard that cohabitation with someone for ten years or more makes you common-law married. But, there is no statutory requirement for the length of time a couple needs to live together. The court considers the amount of time a couple lives together on a case-to-case basis. Generally, the longer a couple lives together, the stronger their case is for common-law marriage.
- Legal right or "capacity" to marry: Both partners must have the legal capacity to marry. Usually, this means they must both be at least 18 years old and of sound mind. They also can't already be married to other people.
- Intent: Both partners must intend to be married.
- Behaving as a married couple: Both partners must hold themselves out to friends, family, and the public as being a married couple.
Holding yourselves out as a married couple can look different for everyone. A few common examples include:
- Referring to each other in public as "partner," "spouse," etc.
- Taking the same last name or changing your last name to match your partner's last name
- Changing your last name on social media accounts to match your partner's last name
- Holding joint bank accounts or credit cards
Depending on where you live, you may have to prove your common-law marriage by providing certain legal documents.
Capacity to Marry Exceptions
As stated above, capacity means whether you can enter into a marriage. But there are a few situations that can complicate capacity.
For example, if you did not have the capacity to marry when you started living with your partner, you can still be a married couple under common-law marriage.
On the other hand, you would not have the capacity to marry in these situations:
- If you move in with a married partner, and their spouse dies while you are living with them
- If you are living with your partner, but they are still in the process of getting a divorce with a former spouse
However, in both cases, you can regain the capacity to marry after the divorce is final or after the death of a partner.
Divorce in Common-Law Marriage
A common law marriage that meets state requirements is just as valid and legally binding as a formalized marriage. So, a common-law marriage lasts until a court grants a divorce or a partner dies.
If your partner dies before you establish a common-law marriage, you must show evidence to prove your common-law marriage. This is necessary if you wish to inherit property or receive benefits such as:
- Life insurance
- Social Security survivor's benefits
- Pension benefits
How To Tell If Common Law Marriage Exists
There are several factors to consider to determine the status of a marital relationship.
These are a few things a judge may consider when determining whether a valid common-law marriage exists:
- Do you have a marriage certificate?
- Have you or your partner ever applied for a marriage certificate or marriage license as a couple?
- Do you live together?
- Do partners have matching last names?
- Does one partner use the other partner's last name?
- Do you refer to each other as partners, spouses, etc.?
- Have you told your friends and family that you are married to each other?
- Have you told your friends and family that you are in a partnership?
- Do you share household duties?
- Do you have children together?
- Do you share any expenses?
- Do you help pay for child custody or child support?
- Do you help pay for spousal support?
- Have you signed contracts together to buy a home? Or a car? Or any major purchase?
- Is your partner a beneficiary on your life insurance policies? Or vice versa?
- Have you filed joint tax returns?
- Do you have joint bank accounts?
Does Common Law Marriage Include Same-Sex Marriages?
Yes. Same-sex couples can be common-law married.
In the “Requirements" section above, note that the requirements list "partners" and do not mention any specific gender.
At the time of this writing, states cannot ban same-sex marriages. Case law and federal statutes support this.
The Supreme Court in Obergefell v. Hodges ruled that same-sex couples have the right to marry. Also, the 2022 Respect for Marriage Act bolsters the case law in Obergefell by ensuring protections for same-sex marriages.
Am I Still Common-Law Married if I Move to a Different State?
States that do not have common-law marriages cannot deny common-law marriages in other states.
The full faith and credit clause in the United States Constitution prevents states from blocking other states with contradictory laws. A state that does not have common-law marriage must recognize common-law marriages from other states.
This means if you are common-law married in a common-law marriage state, your marriage does not evaporate once you cross state lines.
Think of it like your driver's license. You can use your driver's license in different states. Your license to drive in your state does not disappear when you cross into another state.
Common-Law Marriage States
Many states no longer recognize common-law marriages. For example, Alabama and Georgia previously recognized common-law marriages but now only recognize marriages before 2017 and 1997.
Colorado, Iowa, and Rhode Island are among the few states that completely recognize common-law marriage. Kansas, Oklahoma, and Texas also allow common-law marriage. Utah is not a common-law marriage state. This article provides a complete list of states that recognize common-law marriage.
Some states, like Idaho, Pennsylvania, and South Carolina, only allow common-law marriage before a certain date. For example, Ohio only recognizes common law marriages if they began before Oct. 10, 1991.
Other states have grandfathered in marriages created by common-law marriage due to certain circumstances. For example, New Hampshire recognizes common-law marriages only for inheritance purposes.
Check out this article for a list of states that recognize common-law marriages on a limited basis.
Do You Have a Common Law Marriage? Get Legal Advice Today
You may have questions if you and your long-term partner are living together but are uncertain of your marital status.
Do you and your partner have a marital relationship? Or a legal marriage? What if you are a same-sex couple? Do different laws apply? If you are common-law married, what rights do you gain?
It depends on your state's common-law marriage laws. Your situation may be complicated and uncertain. Find an experienced family law attorney near you to see if you have a valid common-law marriage.