You are considered legally married -- despite not having a marriage license, a ceremony, or a marriage certificate -- if your state recognizes common law marriages and you meet certain state law requirements. The majority of states do not recognize common law marriage. The legal criteria for what constitutes a common law marriage typically include carrying on as a married couple and holding themselves out to others as married, in addition to meeting the state's rules regarding who is eligible to marry whom.
Brief History of Common Law Marriage
Historically, most marriages were what we would today call "common law" marriage, since they were not officially recognized by government or church officials. But despite this lack of official record, common law marriages usually were backed by force of law. In a practical sense, it was really difficult to find someone qualified to perform marriages in the early days of the United States (particularly in the West). The U.S. Supreme Court ruled in 1877 that certain unions lacking a marriage ceremony or official record are considered valid and enforceable marriages, unless prohibited by state law.
The Current State of Common Law Marriage in the U.S.
Today, the only states that recognize common law marriage are Alabama, Colorado, the District of Columbia, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas and Utah. But a handful of states, having banned common law marriage, still recognize such unions that were formed prior to the respective state's ban. These include Georgia, Idaho, New Hampshire, Oklahoma, Ohio, and Pennsylvania.
States that do not allow for common law marriage still recognize valid common law marriages formed in states where such unions are valid. If you meet the legal criteria for a common law marriage (such as cohabitation, conjoined bank accounts, etc.) but do not wish to be married as a matter of law, then you should sign a statement expressing as such.
What Constitutes a Valid Common Law Marriage?
Generally, the criteria for a valid common law marriage are the same as those for a licensed marriage. In other words, the couple still must be eligible in terms of age, capacity, consent, etc. There are four main requirements used by most states (that recognize common law marriage) to determine marriage status:
- Must live together (amount of time varies by state)
- Each party must have the capacity to marry
- Must intend to be married
- Both parties must hold themselves out publicly (friends, family, etc.) as being a married couple
In making this determination, a court may consider evidence such as taking the same last name; using a joint bank account; or referring to one another as "husband" and "wife."
Common Law Marriage and Divorce
Proving the existence of a valid common law marriage becomes especially important when seeking a divorce. You may be able to register your marriage status with state authorities, which would then give the same status as other "officially" married couples. But if you are unable to prove a common law marriage when getting divorced, it could make property, support, and custody issues much more difficult. These are questions best left for your attorney.