There are many myths about common law marriage. While laws vary by state, it's important to sort out the fact from the fiction when it comes to common law in your area if you're invested in this type of marriage.
History of Common Law Marriage
- In ancient Rome, common law marriage was the norm. Marriage occurred when two individuals agreed to live together and be married, and there were no forms or ceremony required. This is how couples got married until the Catholic church declared that a marriage was invalid unless performed in front of a priest and two witnesses in the middle of the 16th century.
- In England, the Anglican Church allowed common law marriage until 1753, when the law mandated that marriages must be religious ceremonies with witnesses.
In the United States
In the original 13 colonies, marriage could happen in one of two ways:
- By ceremony, either religious or otherwise
- By agreement and cohabitation
In the 1800's, the majority of state legislatures prohibited common law marriage, requiring marriages to be formal, observed ceremonies. However, the U.S. constitution requires that any state that prohibits common law marriage recognizes a common law marriage that occurred in a state that allows it. Eleven states currently recognize common law marriages. The reasons that these states give for maintaining common law marriage include the following:
- To maintain religious and social freedom.
- To keep the government from interfering in such a private matter.
- To protect citizens from the financial hardship that licensing and ceremonies cause.
Common Law Marriage Today
The following states allow common law marriage:
- District of Columbia
- South Carolina
Although not written in state statutes, the following states also have recognized common law marriage:
- Rhode Island
The following states used to have common law marriage. They will recognize common law marriage if the marriage was entered into before common law marriage was abolished:
- Florida - January 1, 1968
- Georgia - January 1, 1997
- Idaho - January 1, 1996
- Indiana - January 1, 1958
- Ohio - October 10, 1991
- Oklahoma - November 1, 1998
- Pennsylvania - January 1, 2005
Currently, only Iowa, Rhode Island, and the District of Columbia recognize same-sex common law marriages.
New Hampshire recognizes common law marriage only for the sake of inheritances.
Requirements of Common Law Marriage
Contrary to popular myth, there is no specific length of time that two people must live together to enter into a common law marriage. However, there are certain requirements that the couple must meet to be considered married according to common law. To meet these requirements the individuals must:
- Be over 18
- Live together
- Not be married to someone else
- Present themselves as a married couple in public (e.g. they refer to themselves and each other as "husband" and "wife" to friends and relatives)
Although not required, the following provides more evidence for common law marriage:
- The woman uses the man's last name.
- The couple signs contracts together (e.g. to buy a home or car).
- The couple files joint tax returns
- The couple has joint bank accounts and/or credit cards.
- The couple shares household duties and expenses.
- The couple has and raises children together.
If a state does not recognize common law marriage, it is still recognized if it was formed in a state that does allow common law marriage. Likewise, if a couple starts out living in a state that does not allow common law marriage and then moves to a state that does, they will be considered married after residing in the state that recognizes common law marriage.
Ending a Common Law Marriage
Although common law marriages are not originally filed with the state, there are only two ways to end a common law marriage:
- Through a traditional divorce
- Through the death of a spouse
One cannot simply leave a common law marriage any more than one can simply leave any marriage. A divorce is necessary in order to determine separation of property and assets, as well as custody of and child support for children.
Cohabitation Alone Isn't Common Law Marriage
Merely living with your partner for a long time does not mean that you are married according to common law. You must both agree to be married and you must go to the effort of representing yourself as a married couple. If either of you refers to yourself as "single," it would be very difficult to prove a common law marriage. A common law marriage is an agreement between two people to be married. Although frequently only verbal, it is a formal decision that the two of you will be married from this day forward and your behavior from that moment forward matches your commitment.