Common Law Marriage

The Legal Ties that Bind You

What is a common law marriage?
A common law marriage is a relationship that is created by commitment and agreement to cohabitate rather than by a religious or civil ceremony. A common law marriage usually meets the requisites of a conventional marriage, but it is not solemnized by an authorized official, and is not bound by a marriage license. However, if the parties to a common law marriage need documentary proof, they may complete and sign, in front of a Notary Public, an affidavit attesting to the marriage, where it will be placed on file with the Office of the Clerk and County Recorder.

What are the requirements to validate a common law marriage?
Contrary to popular belief, a common law marriage is not created when two people simply live together for a certain number of years. Common law relationships need to pass a strict legal definition before they are considered legitimate. In order to achieve validity, the couple must adhere to all of the following: live together for a significant period of time (although this is not clearly defined), present themselves as a married couple by using the same last name, refer to one another as husband or wife, file a joint tax return, and have a mutual consent and intent to be married. Further, there is no such thing as a common law divorce. Once parties are committed, regardless of the manner in which their marriage is contracted, the marriage cannot be terminated except by legal court dissolution (divorce) or death.

Do all states recognize common law marriages?
Yes and no. Although eleven states (Alabama, Colorado, District of Columbia, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas, and Utah) still recognize common law marriage, other states do not. However, if a couple meet the requirements for a common law marriage in a state that does practice common law marriage, then move to a state that does not practice common law marriage, the new state by law will still recognize the common law marriage. Yet, legal rights and protections a common law spouse was entitled to in their observing state such as claim to joint assets, alimony, power of attorney in the event of disability, inheritance executor (if not expressly stated in will), etc., will not necessarily be honored.

What are the advantages associated with a common law marriage?
Common law marriage can serve as an outlet for couples who cannot be legally bound by conventional marriage but desire to exercise their rights as a married partnership, such as homosexuals, bigamists, polygamists, consanguinity couples (too closely related by blood: father, brother), affinity couples (too closely related by marriage: stepfather, father in law), couples who do not have access to clergy or justices of the peace, or couples who are minors. Also, some couples choose not to conform to the conventions of a formal marriage for social, political, or religious beliefs.

What are the disadvantages associated with a common law marriage?
Since the same last name must be shared by the couple in compliance with common law marriage requirements, the adopting spouse has to obtain an official court order to get government agencies, banks, title companies, etc., to recognize and observe the change. As previously stated, common law marriage couples are not necessarily governed by the same rights as formally married couples in regard to lawful entitlements. Divorce may prove more complex because there will likely be a trial to determine whether or not the marriage is legally recognized, i.e. if no marriage "contract" was signed and recorded, a spouse can claim denial of marriage intent in order to be disqualified from spousal support, dividing of joint property, etc. Marriage experts and lawyers argue that if your intent truly is to be married, and you qualify for a conventional marriage, you are probably better off avoiding a common law marriage.