1. Definition:
Common law marriage, often referred to as marriage by habit and repute, is a legal concept that recognizes a couple as married even if they have not obtained a marriage license or participated in a formal ceremony. This type of marriage is established through the couple’s actions and intentions rather than through a legal process. It differs from traditional marriage in that it does not require a marriage license or solemnization by an authorized officiant.
Requirements for Establishing Common Law Marriage:
The specific requirements for establishing a common law marriage vary by state. However, common elements typically include:
Cohabitation: The couple must live together as spouses.
Mutual Consent: Both parties must agree to be married.
Holding Out: The couple must present themselves to the community as married. This can include using the same last name, referring to each other as spouses, or filing joint tax returns.
Intent: The couple must have the intent to be married, meaning they must view themselves as spouses and intend to create a marital relationship.
Distinguishing Common Law Marriage from Cohabitation:
It’s important to note that simply living together does not automatically establish a common law marriage. While cohabiting couples may share a home and expenses, they are not considered married unless they meet the specific requirements outlined by their state.
2. Legal Recognition:
States Recognizing Common Law Marriage:
As of 2024, the following states recognize common law marriage:
Colorado
Iowa
Kansas
Montana
New Hampshire
Oklahoma
Rhode Island (only if established before 01/01/2001)
South Carolina
Texas
Utah
It’s important to check the specific laws in your state, as the requirements for common law marriage can vary widely.
Legal Implications of Common Law Marriage:
In states that recognize common law marriage, couples enjoy the same legal rights and responsibilities as traditionally married couples. This includes property rights, inheritance rights, spousal support, and child custody.
3. Advantages & Disadvantages:
Benefits of Common Law Marriage:
Ease of Establishment: Common law marriage offers a simpler alternative to traditional marriage, as it does not require a formal ceremony or marriage license.
Tax Advantages: Married couples may benefit from tax breaks and deductions not available to unmarried couples.
Inheritance Rights: Common law spouses are entitled to inherit from each other in the absence of a will.
Spousal Support: In the event of separation or divorce, common law spouses may be entitled to spousal support or alimony.
Drawbacks of Common Law Marriage:
Difficulty in Proving Relationship: Without a marriage certificate, proving the existence of a common law marriage can be challenging, especially in legal disputes.
Ending the Marriage: Dissolving a common law marriage can be complicated, as it may require legal proceedings similar to divorce.
Legal Complications Across States: Common law marriages may not be recognized in states that do not have statutes or case law recognizing them, leading to legal complications if the couple relocates.
4. Practical Information:
Advice for Couples Considering Common Law Marriage:
Document the Relationship: Keep records of shared expenses, joint accounts, and any documentation that demonstrates your relationship.
Preserve Evidence: Save documents such as joint leases, utility bills, and correspondence addressed to both parties.
5. Example Scenarios:
Scenario 1:
John and Sarah have been living together for ten years and have three children together. Although they never had a formal wedding ceremony, they introduce each other as husband and wife and file joint tax returns. In the event of John’s passing, Sarah would be entitled to his estate as his common law spouse.
Scenario 2:
Mike and Lisa live in a state that does not recognize common law marriage. Despite living together for several years and sharing expenses, they are not considered married under the law. If they were to separate, they would not have the same legal rights and protections as married couples.
Conclusion
In conclusion, common law marriage offers couples an alternative path to legal recognition without the formalities of a traditional wedding. However, it’s essential to understand the requirements and implications before entering into this type of union. Consulting with a legal professional can provide clarity and guidance on navigating the complexities of common law relationships.
FAQs
What’s the difference between spouse and common law?
A spouse refers to a partner in a legally recognized marriage, established through a formal wedding ceremony and a marriage certificate. Common law, on the other hand, refers to a relationship where a couple lives together and presents themselves as married without going through a formal ceremony or obtaining a marriage license. The recognition of common law partnerships can vary by jurisdiction, with some areas granting similar rights and responsibilities as those of legally married couples.
Does common law marriage still exist in the US?
Yes, common law marriage still exists in the US, but it is recognized in only a handful of states. These states include Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. In these states, couples must meet specific criteria, such as cohabitation for a certain period and presenting themselves as married to the public, to be considered common law married. Some states recognize common law marriages only if they were established before a certain date.
What is the common law in the United States?
Common law in the United States refers to a legal system based on court precedents and judicial rulings rather than statutory laws enacted by legislative bodies. This system originated in England and was adopted by the US upon its founding. Common law evolves over time through decisions made by judges in individual cases, creating a body of law that guides future judicial decisions. It covers various areas such as contracts, property, and torts, and operates alongside statutory laws and regulations.