“Common law marriage” is a term that most people have heard before, but that many don’t fully understand. Adding extra difficulty to the subject, different states have different rules and guidelines regarding common law marriages, with some recognizing it and others not. In this post, we’ll discuss what common law marriage is, which states recognize it, and what it means to the couples involved.
What Is Common Law Marriage?
Common law marriage in the United States is a legal principle that dates back to the year 1877. In short, a common law marriage is when a couple is legally recognized as being married despite never going through a legal marriage ceremony.
- Both parties must live together for a specific amount of time (which varies by state)
- Both parties must have the legal capacity to marry (both members of the couple are over 18, are not legally married to someone else, and are of sound mind to legally consent to marriage)
- Both parties must intend to marry
- Both parties must present themselves publicly as if they were a married couple (they refer to each other as husband and wife, have joint bank accounts/credit cards, take each other’s surnames, etc.)
Where Is Common Law Marriage Recognized?
Common law marriage is currently only recognized in the following states:
- District of Columbia
- Rhode Island
- South Carolina
- Texas (note: in Texas, common law marriage is referred to as “informal marriage”)
Other states will recognize a common law marriage if it has been in place before the state ban on recognizing common law marriage went into place. Those states are:
- Georgia (recognizes common law marriages originating before January 1, 1997)
- Idaho (January 1, 1996)
- New Hampshire (only recognizes common law marriage for purposes of inheritance)
- Oklahoma (November 1, 1998)
- Ohio (October 10, 1991)
- Pennsylvania (January 1, 2005)
Common law marriage between same sex couples is only recognized in Iowa, the District of Columbia, and Rhode Island.
How Is Common Law Marriage Recognized?
Since common law marriage requires the absence of a formal legal marriage, whether or not a couple is married under common law is determined by a judge’s order. This usually occurs when one of the partners passes away or a couple separates, and legal matters of inheritance, alimony, and other issues need to be dealt with.
Like a regular marriage, a common law marriage does not end when a couple stops living together or separates. As with a normal marriage, couples who are recognized under common law marriage must be granted a divorce before the legal partnership ends.
As the exact rules for common law marriage vary from state to state, couples should consult with a lawyer on the matter before assuming that their marriage will be recognized, or taking any action under the assumption that they qualify under common law marriage rules. The best way to have a common law marriage recognized is to present evidence that you and your partner live together as a married couple. This can include a co-signed statement of your intention to marry, purchasing joint property, having one partner take the other’s last name, or other common practices performed by married couples.
For more information on marriage law, divorce, and other similar issues, contact the divorce lawyers of the McFarling Law Group today at 702 766 6671.