Family Law

What Is Common Law Marriage?

By Joseph Pandolfi, Retired Judge
Learn more about this uncommon form of legal marriage.

The Basics of Common Law Marriage

Contrary to what some may think, a relationship doesn't automatically convert into a common law marriage after living together for a set amount of time. The states that recognize common law marriage have their own rules, which may set forth specific time requirements. Instead, one of the core elements of a common law marriage is whether the couple has acted as though they were married.

You must also meet your state’s rules for a lawful marriage. For example:

  • you must meet your state’s legal age requirement
  • you must be of sound mind (that is, have the mental capacity to enter into the marriage), and
  • you can’t already be legally married to someone else.

What Evidence Is Necessary to Establish a Common Law Marriage?

As mentioned above, living as a married couple is a fundamental element in verifying a common law marriage. In order to establish a common law marriage, a court must find that the couple held themselves out to the public as married.

Evidence that the couple considered themselves married includes:

  • signing documents acknowledging that the couple considered themselves married
  • referring to themselves as married among friends, relatives, and the public
  • referring to each other as "spouse," both orally and in writing
  • assuming the same last name
  • opening joint accounts, like checking and savings accounts or credit card accounts, and
  • buying property together.

Why Should I Care If a Court Recognizes My Common Law Marriage?

If things are sailing along smoothly, you may not see a reason to care. But a court decision declaring your situation to be a legal marriage could be quite significant in certain circumstances, particularly if your relationship goes south, or one of you dies. If your relationship is ending, your financial future might hinge on the true nature of your time together. Marriage is marriage, whether common law or not.

To terminate a common law marriage, you need to get divorced, just as if you had a marriage certificate. And if you're seeking spousal support, a share of property, or other relief often associated with divorce (and you don't have a cohabitation agreement that governs these issues) you'll need to prove the existence of a common law marriage.

Some death benefits are tied to being married, such as Social Security and possibly pension and insurance payouts. Those benefits may be denied if you were in an unmarried, live-in relationship, which isn't recognized as a common law marriage.

As an aside, if you're successful in proving your common law marriage is legal in your state, your status should be recognized in most other states as well.

How Relevant Is Common Law Marriage Today?

Common law marriage is fairly uncommon because most states no longer consider it legal. But if you live in a state that still allows common law marriages—or at least acknowledges them as valid—then this status can be quite relevant to you. If you meet the common law marriage requirements in your state, you will receive the same rights and responsibilities as married couples, which can be positive, considering all of the benefits married couples receive.

Similarly, if you're in a common law marriage and you break up, you'll have to follow your state's divorce laws, just as married couples do. Depending on your circumstances, this can turn into a legal mess, especially if one spouse contests the marriage. In that case, you may end up in court, asking a judge to determine your marital status. This will likely involve calling several witnesses who are familiar with your situation, as well as examining documents such as bank accounts, correspondence between yourselves and others, and anything else that can shed light on how you viewed your relationship. If a judge rules that a common law marriage exists, you then have to proceed through the maze of divorce in order to become officially separated and legally single.

A Word About Same-sex Couples

With the 2015 U.S. Supreme Court decision legalizing same-sex marriage, states that still recognize common law marriage are going to have to address whether same-sex partners may be considered common law spouses. In all probability, this will entail amending the relevant statutes to omit terms such as “man” and “woman” and using gender-neutral language instead.

Common law marriage is a complex topic. If you have specific questions, you should contact an experienced family law attorney in your area.

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