Common-law marriage in the United States

Common-law marriage, also known as sui juris marriage, informal marriage, marriage by habit and repute, or marriage in fact is a form of irregular marriage that survives only in seven U.S. states and the District of Columbia along with some provisions of military law; plus two other states that recognize domestic common law marriage after the fact for limited purposes.

Main article: Common law marriage

The term common law marriage is often used colloquially or by the media to refer to cohabiting couples, regardless of any legal rights that these couples may or may not have, which can create public confusion both in regard to the term and in regard to the legal rights of unmarried partners.[1]

Origin of common-law marriage

The origins of common-law marriage are uncertain. It is arguably the original form of marriage, in which a couple took up residency together, held themselves out to the world as a married couple, and otherwise behaved as a married couple. It has been gradually abolished in Western nation states throughout the centuries. The Catholic Church forbade clandestine marriage at the Fourth Lateran Council (1215), which required all marriages to be announced in a church by a priest. The Council of Trent (1545–1563) introduced more specific requirements, ruling that future marriages would be valid only if witnessed by the pastor of the parish or the local ordinary (the bishop of the diocese) or by the delegate of one of said witnesses, the marriage being invalid otherwise, even if witnessed by a Catholic priest. The Tridentine canons did not bind the Protestants or the Eastern Orthodox, but clandestine marriages were impossible for the latter since their validity required the presence of a priest. It is sometimes mistakenly claimed[2] that, before the Marriage Act 1753, cohabiting couples in Britain would enjoy the protection of a "common-law marriage". In fact, neither the name nor the concept of "common-law marriage" was known at this time.[3] Far from being treated as if they were married, couples known to be cohabiting risked prosecution by the church courts for fornication.[4]

The Marriage Act 1753 also did not apply to Britain's overseas colonies of the time, and common-law marriages continued to be recognized in what became the United States and Canada. Although it is claimed that common-law marriage in the US originated in English common-law, this institution in the United States appears to have originated in the harsh conditions of colonial America where the presence of relatively few clerics or civil officials necessitated a substitute for ceremonial marriage, and the need expanded as the settlers moved into the sparsely populated regions of the West.[5] In the United States, as of 2022, common-law marriages are still recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia, while Utah[6] and New Hampshire[7] have limited recognition of common-law marriage.

Federal income tax and other provisions

If the marriage is recognized under the law and customs of the state or jurisdiction in which the marriage takes place (even in a foreign country), the marriage is valid for tax purposes (Rev. Rul. 58-66). Specific state or jurisdiction requirements for a common law marriage to be recognised must be considered by couples contemplating filing joint returns.

In February 2015, the United States Department of Labor issued an amended definition of "spouse" under the Family and Medical Leave Act of 1993 (FMLA) in response to the United States v. Windsor decision recognizing same-sex marriage. The new DOL rule became effective March 27, 2015,[8] and extends FMLA leave rights and job protections to eligible employees in a same-sex marriage or a common law marriage entered into in a state or jurisdiction where those statuses are legally recognized, regardless of the state in which the employee currently works or resides.[9][10]

Contractibility of domestic common law marriage

A domestic common law marriage is contracted within a particular jurisdiction. If contracted in a different jurisdiction, it is a foreign common law marriage, just like any type of regular marriage contracted out-of-state.

In 1855, defending the idea of common law marriage, a New York judge described marriage as "the most sacred" of social relationships and said that society would be threatened "if an open and public cohabitation as man and wife for 10 years...followed by the procreation of children, could be overturned."[11]

Domestic common law marriages can be contracted in these jurisdictions:

  1. Colorado[12]
  2. The District of Columbia[13]
  3. Iowa[14]
  4. Kansas[15]
  5. Montana[16]
  6. Oklahoma;[17] but as noted, status may be unclear.
  7. Rhode Island[18]
  8. Texas[19]
  9. Military law;[20] a defective state marriage was still valid under military law due to the length of time the defendant lived as married.

Two other jurisdictions recognize domestic common law marriage in limited circumstances:

  1. New Hampshire recognizes domestic common law marriage for purposes of probate only.[21]
  2. Utah recognizes only common law marriages that have been validated in a judicial proceeding. A common law marriage may be validated by a court of law up to one year after the alleged marriage has been terminated.[22][23]

Of the remaining 41 states, 13 never permitted and 28 no longer permit common law marriages to be contracted within their jurisdiction. The latter group will only recognize a domestic common law marriage if it was contracted in the state prior to the date of abolition. Nevertheless, all states recognise validly contracted foreign common law marriages, because they recognize all validly contracted foreign marriages. E.g., California abolished the common law contract of marriage in 1895 and, thus, will only continue to recognize a domestic common law marriage contracted in California prior to that date; but any validly contracted out-of-state common law marriage will be recognized by California, because it recognizes all validly contracted foreign marriages under Cal. Family Code 308.

Domestic contract of common law marriage was abolished in 28 states on the dates indicated. Massachusetts (which included Maine, 1652–1820) abolished common law marriage during the colonial period and before it was abolished in England and Wales.

These 13 states have never permitted domestic common law marriage; but like all 50 states and the District of Columbia, they recognise all validly contracted out-of-state marriages, including validly contracted common law marriages.

Outside of confederation, the Territory of Guam does not recognise common law marriage.[32] The Commonwealth of the Northern Mariana Islands also does not recognise common law marriage but might recognise customary marriage. In Santos v. Commonwealth, Petitioner argued that common law marriage was sufficiently similar to Carolinian customary marriage that it should be recognised as the same. The Court ruled that, while CNMI statute provides that (English) common law provides the rule of decision in the absence of statutory law or customary law to the contrary, Petitioner did not argue that her marriage was a marriage under customary law but a marriage under common law; thus, whereas a validly contracted marriage under Carolinian or Chamorro customary law might be held a valid marriage, a common law marriage could not be.[33]

Marriage under tribal law is distinct from state marriage law. Many Aboriginal nations permit common law marriage or its historic tribal equivalent. For example, the Navajo Nation permits common law marriage and also allows its citizens to marry through tribal ceremonial processes and traditional processes.[34] Otherwise, common law marriages can no longer be contracted in any of the other states.

Interjurisdictional recognition

All U.S. jurisdictions recognize all validly contracted out-of-state marriages under their laws of comity and choice of law/conflict of laws rules - including marriages that cannot be legally contracted domestically. Likewise, an invalidly contracted out-of-state marriage will not be valid domestically, even if it could have been validly contracted domestically. E.g., California allows first cousins to marry but Nevada does not. If two first cousins attempt to marry in Nevada, that marriage will not be valid in either Nevada or California, notwithstanding it could be legally contracted in California. But if they attempt to marry in California, their attempt will be successful and the marriage will be valid in both California and Nevada, notwithstanding the marriage could not be legally contracted in Nevada. (The Full Faith and Credit Clause of the United States Constitution does not apply to common law marriages because they are not public acts (i.e. statutes, ordinances, general laws, etc.), not public records, and not judicial proceedings.)[35]

Proof a common law marriage exists or existed

Because there is no marriage certificate or other public record to directly document the marriage, it can be difficult to prove a common law marriage if marital validity is contested in a probate or dissolution proceeding.

Similar problems of proof may arise if the parties to a common law marriage were not actually domiciled in the state where they lived at the time they sought to contract the marriage; or they may have thought they were contracting a marriage but they did not actually conform to the law of the state in which they were living. The essential question is whether the marriage was validly contracted under the laws of the jurisdiction where the parties allege their marriage was contracted.

Dissolution (aka divorce)

Because common law marriage is merely an irregular way to contract a lawful marriage, the same formal judicial proceeding is required to dissolve it.[36] There is no such thing as "common law divorce" because divorce never existed at common law but was created by statutory law. So although it is possible to be married by common law in nine U.S. jurisdictions, divorce must be done by statutory law in all jurisdictions.[37]

Definitive legislation in states that permit domestic common law marriage

The requirements to contract a valid common law marriage differ between jurisdictions as follows:

Colorado

Colorado's Supreme Court revised the elements for common law marriage in three related rulings on January 11, 2021, in light of Obergefell v. Hodges, 576 U.S. 644, 674–75 (2015), and also in light of changing social practices, in the cases of In re Marriage of Hogsett & Neale, 2021 CO 1 (January 11, 2021),[38] In re Estate of Yudkin, 2021 CO 2 (January 11, 2021),[39] and In re Marriage of LaFleur & Pyfer, 2021 CO 3 (January 11, 2021).[40] The Colorado Bar Association summarizes the holding of the cases in a summary of the lead case, Hodges, which states:[41]

The Supreme Court revisited the test for proving a common law marriage that the Court articulated over three decades ago in People v. Lucero, 747 P.2d 660 (Colo. 1987). Because many of the indicia of marriage identified in Lucero have become less reliable, particularly in light of the recognition of same-sex marriage and other social and legal changes, the Court refined the test and held that a common law marriage may be established by the mutual consent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement. The core inquiry is whether the parties intended to enter a marital relationship, that is, to share a life together as spouses in a committed, intimate relationship of mutual support and obligation.[42]

Colorado, by statute, no longer recognizes common law marriages entered by minors in Colorado, and also does not recognize foreign common law marriages entered into by minors, even if that marriage would have been valid where entered into under local law. See Section 14-2-109.5, Colorado Revised Statutes. The constitutionality of this limitation as applied to foreign marriages has not been tested in litigation.[43]

Colorado, Montana, and Texas are the only U.S. states to recognize both putative marriage and common law marriage.[44][45]

District of Columbia

According to the District of Columbia Department of Human Services, a common law marriage is "[a] marriage that is legally recognized even though there has been no ceremony and there is no certification of marriage. A common law marriage exists if the two persons are legally free to marry, if it is the intent of the two persons to establish a marriage, and if the two are known to the community as husband and wife."[46]

Common law marriages have been recognized in the District of Columbia since 1931.[47][48] Holding common law marriages legal, District Court of Appeals Justice D. Laurence Groner said,

"We think it cannot now be controverted that an agreement between a man and woman to be husband and wife, consummated by cohabitation as husband and wife, constitutes a valid marriage unless there be in existence in the State in which the agreement is made, a statute declaring the marriage to be invalid unless solemnized in a prescribed manner. We think it equally true that the rule now generally recognized is that statutes requiring a marriage to be preceded by a license or to be solemnized by a religious ceremony without words of nullity as to marriages contracted otherwise are directory merely and failure to procure the license or to go through a religious ceremony does not invalidate the marriage. ... There is nothing in the statute which declares that a marriage shall not be valid unless solemnized in the prescribed manner, nor does it declare any particular thing requisite to the validity of the marriage. The act confines itself wholly with providing the mode of solemnizing the marriage and to the persons authorized to perform the ceremony. Indeed, the statue itself declares the purpose underlying the requirements to be secure registration and evidence of the marriage rather than to deny validity to marriages not performed according to its terms."[48]

Iowa

The three elements of a common law marriage are: (1) the present intent and agreement to be married; (2) continuous cohabitation; and (3) public declaration that the parties are husband and wife.[49] The public declaration or holding out to the public is considered to be the acid test of a common law marriage.[50]

Adm. Rule 701—73.25 (425) of the Iowa Administrative Code, titled Common Law Marriage, states:

A common law marriage is a social relationship that meets all the necessary requisites of a marriage except that it was not solemnized, performed or witnessed by an official authorized by law to perform marriages. The necessary elements of a common law marriage are: (a) a present intent of both parties freely given to become married, (b) a public declaration by the parties or a holding out to the public that they are husband and wife, (c) continuous cohabitation together as husband and wife (this means consummation of the marriage), and (d) both parties must be capable of entering into the marriage relationship. No special time limit is necessary to establish a common law marriage. Edit: 701—73.26 Rescinded, effective October 2, 1985.[51]

This rule is intended to implement Iowa Code section 425.17.

Kansas

Under Kansas Statute 23-2502, both parties to a common law marriage must be 18 years old. The three requirements that must coexist to establish a common law marriage in Kansas are: (1) capacity to marry; (2) a present marriage agreement; and (3) a holding out of each other as husband and wife to the public.[52]

Montana

A common law marriage is established when a couple: "(1) is competent to enter into a marriage, (2) mutually consents and agrees to a common law marriage, and (3) cohabits and is reputed in the community to be husband and wife."[53]

Oklahoma

The situation in Oklahoma has been unclear since the mid-1990s, with legal scholars reporting 1994, 1998, 2005, and 2010 each as the year common law marriage was abolished in the state. However, as of August 2022, the Oklahoma Tax Commission continues to represent common law marriage as legal,[54] and the Department of Corrections continues to reference common law marriage, though that could refer to older marriages.[55] No reference to the ban appears in the relevant statutes;[56][57] the 2010 bill that attempted to abolish common law marriage[58] passed the state Senate, but died in a House committee.[59][60] and a reputed ban in 2010 cannot be found in its statutes.[56]

Rhode Island

The criteria for a common law marriage are: (1) the parties seriously intended to enter into the husband-wife relationship; (2) the parties’ conduct is of such a character as to lead to a belief in the community that they were married.[61]

Texas

The Texas Family Code, Sections 2.401 through 2.405,[62] define how a common law marriage (which is known as both "marriage without formalities" and "informal marriage" in the text) can be established in one of two ways. Both parties must be at least age 18 to enter into a common law marriage.

First, a couple can file a legal "Declaration of Informal Marriage", which is a legally binding document. The form must be completed by both marriage partners and sworn or affirmed in presence of the County Clerk. The Declaration is formally recorded as part of the Official County Records by Volume and Page number, and is then forwarded by the County Clerk to the Texas Bureau of Vital Statistics, where it is again legally recorded as formal evidence of marriage. This is the same procedure that is used when a marriage license is issued and filed; the term "Informal" refers only to the fact that no formal wedding ceremony (whether civil or religious) was conducted.

Second, a couple can meet a three-prong test, showing evidence of all of the following:

  1. first, an agreement to be married;
  2. And after such agreement, cohabitation (lived together) within the State of Texas as husband and wife; and
  3. there, represented to others (within the State of Texas) that the parties are married.[63]

Regarding the second prong, in the actual text of the Texas Family Code, there is no specification on the length of time that a couple must cohabitate to meet this requirement. As such, an informal marriage can occur under Texas law if the couple lives together for as little as one day, if the other requirements (an agreement to be married and holding out as married to the public) can be shown.

Likewise, a couple can cohabit for 50 years, but if they never have an agreement to be married, or hold themselves out to the public as married, their 50-year cohabitation will not make them informally married under Texas law.

Dissolution of this type marriage requires formal Annulment or Divorce Proceedings, the same as with the other more recognized forms of 'ceremonial' marriages.[64] However, if a couple does not commence a proceeding to prove their relationship was a marriage within two years of the end of their cohabitation and relationship, there is a legal presumption that they never agreed to be married, but this presumption is rebuttable.

New Hampshire

New Hampshire recognizes common law marriage for purposes of probate only.[65]

In New Hampshire "[P]ersons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for the period of 3 years, and until the decease of one of them, shall thereafter be deemed to have been legally married." Thus, the state posthumously recognizes common law marriages to ensure that a surviving spouse inherits without any difficulty.[66]

Utah

The status of common law marriage in Utah is not clear. Government websites claim that common law marriage does not exist in Utah[67] but other legal websites state that "non-matrimonial relationships" may be recognized as marriage within one year after the relationship ends.[68] Whether this amounts to recognition of non-marital relationship contracts (dubbed "palimony agreements" by the media after the famous California case Marvin v. Marvin), or post-factum recognition of common law marriage is a subject for debate.

In any case, Utah will only recognise the relationship if it has been validated by a court or administrative order: "[A] court or administrative order must establish that" the parties: (1) "are of legal age and capable of giving consent"; (2) "are legally capable of entering a solemnized marriage under the provisions of Title 30, Chap. 1 of the Utah Code; (3) "have cohabited"; (4) "mutually assume marital rights, duties, and obligations"; and (5) "hold themselves out as and have acquired a uniform and general reputation as husband and wife" [22] In Utah, the fact that two parties are legally incapable of entering into a common law marriage, because they are already married, does not preclude criminal liability for bigamy or polygamy.

Representative legislation in some states that no longer permit domestic common law marriage

Alabama

Alabama abolished common law marriage effective January 1, 2017.[69] Common law marriages contracted before this date are still valid. Such a valid common law marriage exists when there is capacity to enter into a marriage, the parties must be at least 16 with legal parental consent and present agreement or consent to be married, public recognition of the existence of the marriage, and consummation.[70]

Florida

Florida abolished common law marriage effective January 1, 1968. Marriages contracted prior to this date are not affected. Additionally, Florida recognizes valid common law marriages from other states.[71]

California

California Family Code Section 308 provides that a marriage validly contracted in another jurisdiction is valid in California.[72] Thus, a common law marriage validly contracted in another jurisdiction is valid in California notwithstanding it could not be legally contracted within California; and a common law marriage that was not validly contracted in another U.S. jurisdiction is not valid in California. All other states have similar statutory provisions. Exceptions to this rule are marriages deemed by the jurisdiction to be "odious to public policy".

Pennsylvania

Pennsylvania's domestic relations marriage statute now reads: "No common law marriage contracted after January 1, 2005, shall be valid. Nothing in this part shall be deemed or taken to render any common law marriage otherwise lawful and contracted on or before January 1, 2005, invalid."[73] The situation in Pennsylvania became unclear in 2003 when an intermediate appellate court purported to abolish common law marriage[74] even though the state Supreme Court had recognized (albeit somewhat reluctantly) the validity of common law marriages only five years before.[75] The Pennsylvania legislature resolved most of the uncertainty by abolishing common law marriages entered into after January 1, 2005.[76] However, it is still not certain whether Pennsylvania courts will recognize common law marriages entered into after the date of the Stamos decision and before the effective date of the statute (i.e., after September 17, 2003, and on or before January 1, 2005), because the other intermediate appellate court has suggested that it might not follow the Stamos decision.[77]

See also

References
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  30. "A Blunder in Law-making". The Washington Post. January 17, 1902. p. 6.
  31. South Carolina prospectively abolished common law marriage in 2019 and refined the test in future litigation of preceding common law marriages to be demonstration of mutual assent Stone v. Thompson, No. 2017-000227. S.C. . July 24, 2019)
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  64. (Texas Family Code Chapter 24).
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  69. Henry, Allen. "Gov. Bentley signs bill abolishing common law marriage". Archived from the original on 2016-07-03. Retrieved 2016-06-30.
  70. Waller v. Waller, 567 So.2d 869 (Ala.Civ.App. 1990). See also, Hudson v. Hudson, 404 So.2d 82 (Ala.Civ.App. 1981). (Alabama Attorney General – FAQ: Marriage/Divorce Archived March 4, 2008, at the Wayback Machine).
  71. "Does Florida Recognize Common Law Marriage?". The McKinney Law Group. 21 July 2017. Retrieved January 20, 2021.
  72. California Legislature. "California Family Code, Section 308". State of California. Retrieved 15 November 2018.
  73. Pennsylvania Consolidated Statutes, Title 23 Pa.C.S. § 1103. Common law marriage.
  74. PNC Bank Corporation v. Workers' Compensation Appeal Board (Stamos), 831 A.2d 1269 (Pa. Cmwlth. 2003) Archived March 7, 2008, at the Wayback Machine
  75. "STAUDENMAYER v. STAUDENMAYER". www.aopc.org. Archived from the original on March 7, 2008.
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  77. Compare Bell v. Ferraro, 2004 PA Super 144, 849 A.2d 1233 (4/28/2004) Archived March 7, 2008, at the Wayback Machine, with Stackhouse v. Stackhouse, 2004 PA Super 427, 862 A.2d 102 (11/10/2004) Archived March 7, 2008, at the Wayback Machine.

Further reading
  • Bowman, Cynthia (1996). "A Feminist Proposal to Bring Back Common Law Marriage". Oregon Law Review. 75 (3): 709–780. Includes detailed history of rationales for recognition, nonrecognition and abolishment of common law marriage in the United States from colonial days through the twentieth century.
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