5 Things to Know About Common Law Marriage

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Formal marriages, complete with marriage licenses and the signatures of legal officiants/witnesses, are the most recognized forms of relationships today. However, there are also informal relationships — such as a common law marriage — that our modern society recognizes in nine states and the District of Columbia.

A common law marriage is a union between two individuals who live together and present themselves to others as a married couple, without having gone through all the legal proceedings for a formal marriage.

Want to know more? This article highlights the ins and outs of common law marriage, how such an arrangement compares with statutory marriage and five elementary things you should know about common law marriage and its circumstances and consequences.

What Is Common Law Marriage?

Common law marriage, also known as sui iuris marriage, arises if two parties cohabitate without being formally married but, by mutual consent, agree to be husband and wife (or married partners in the case of same-sex couples.) Common law marriage also is referred to as marriage by habit and repute, informal marriage or marriage in fact.

A common law marriage is an agreement between the two involved that they will live with the open assumption of a marital relationship, which implies that both spouses hold themselves to the public as a married couple. The couple in a common law union both recognize it to be a valid marriage, although their marriage has not formally been recorded with a religious or civil registry.

In addition to their mutual consent and an open assumption of the marriage, spouses who wish to prove a common-law marriage must meet additional criteria laid under the legal codes of the state they live in. In most instances, the legal requirements include:

  • Both parties should be at least 18 years old at the time of the marriage
  • The marriage must not be bigamous, so neither of the parties should have been married at the time of their union
  • The marriage is not incestuous, meaning the union cannot be between relatives

However, even when the court finds a marriage to be prohibited, you can still be considered as a “putative spouse” — someone who has lived with a partner under good faith and with the belief they were in a marriage. This happens when a couple forms a common law relationship, but one spouse doesn’t know the other is married, technically, to someone else.

Under the law, a putative spouse has similar rights as a legal spouse regarding the right to property and alimony. Having children together does not make a relationship automatically a common law marriage. The key is whether you regard yourself as a wife or husband.

Understanding common law marriage rights is sometimes confusing. Even the spouses may not know all the ramifications if they decide to terminate the marriage and sort through their individual rights and responsibilities.

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In a legal dispute, so long as friends and family view the couple as married, then it doesn’t matter what each spouse thinks of the living arrangement or relationship. This means that, upon termination of a relationship, one partner may get his friends and family to support the marriage claim, especially if the tactic involves money.

You cannot annul such a marriage without a full-blown divorce proceeding. And, if you die unexpectedly, your partner may inherit your assets, potentially depriving your biological heirs of the rights to money and valuables.

Common Law Marriage vs. Marriage

Statutory (legal) marriage and common law marriages can be quite confusing as they ultimately seem to be describing the same thing. Yet, there are many differences. Here, we will look at what these two types of marriages have in common and how they differ from one another.

What Is Common Law Marriage?

  • Both partners freely consent to being in a matrimonial arrangement
  • Both parties should be of sound mind
  • Neither of the partners should be married currently
  • Neither of the parties should be under a disability that prevents them from entering into a valid marriage
  • Both parties are of legal age to contract a marriage
  • Partners have parental consent to marry if they are not of legal age
  • In both marriages, partners are subject to legal rights after a breakup, such as property sharing

Differences

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A common law marriage arrangement differs from statutory marriage in the following ways:

  • There is no formal ceremony that solemnizes the marriage before witnesses, such as in a church
  • There is no marriage license that the government issues to recognize the marriage
  • No formal certificate is filed with the government
  • Most jurisdictions require that the parties should be living together at the time the marriage is formed
  • Some jurisdictions may require the cohabitation to last a certain period of time, specifically 3 years, for the marriage to be valid
  • Cohabitation alone doesn’t create the marriage, as the partners must intend their relationship to be recognized socially and regarded as legal

5 Things You Should Know

The following are five things you need to know about common law marriages:

1. No Process or Ceremony Needed

To be considered as a couple under the common law marriage arrangement, partners must live together in a marriage-like relationship. (This can include same-sex partners.) There are no legal formalities or requirements that the two people involved in the union have to undergo any process or ceremony in order to formalize the arrangement.

2. Cohabitation Agreements Allowed

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In this type of marriage, you can agree on a pre-nuptial contract, just like they do in formal marriages. Partners in common law marriages can use the "cohabitation agreement" to protect their property rights, settle financial obligations or even determine what a spouse's entitlements would be if the two agree to dissolve the marriage.

However, just like in domestic contracts, this marriage arrangement will not cover matters concerning the access to or custody of children.

3. Defining Parameters

To be in a common law marriage, the spouses must have lived together for at least three years or for a shorter time if they had a child together and a “relationship of some permanence.”

Generally, courts will consider the lifestyle of the couple, for example: shared accommodation, social interaction, personal and sexual habits, financial support of each other and of any children and how the public and society perceive them. Not all these parameters should be present, however, for a legal system to consider the couple to be in the marriage arrangement.

Even though there is a requirement that the partners must have lived together continuously for about three years, temporary break-ups without a settled intention to end the marriage doesn’t interrupt the continuity of the relationship.

4. Spousal Support

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If the marriage ends, one partner may have the right to receive spousal support. Although common law marriages are treated differently under the law regarding the division of property, there is an entitlement for spousal support similar to formal marriages.

This implies that if the common law relationship between the partners ends, one may seek spousal support under certain circumstances, such as one partner being unable to support herself or himself after the termination of the relationship.

5. Right to Property

If the marriage ends, one partner may still be entitled to certain rights in connection to the partner’s property. Common-law partners don’t have similar property rights as spouses in a formal marriage. Upon termination of a common law relationship, property such as furniture and other household items continues to be owned by the individual who bought them.

However, in the right circumstances, partners in a common law relationship may still make claims against each other’s property based on “unjust enrichment.” This is due to the concept that one partner in the relationship should not be allowed to profit at the other’s expense, regarding their respective contributions to the union.

One partner can apply to have the other compensate them for the value of services, property and benefits that the other partner received at the expense of the first partner.

Conclusion

An informal or common law marriage arises if two parties live together without being formally married, but both people mutually consent to presenting themselves as married to the public. A common-law couple is legally recognized as married, even though they have not formally registered their relationship as a religious or civil marriage.

Besides their consent and an open assumption of marriage, both spouses should meet legal requirements. They have to be at least 18 years old at the time of the marriage or have a parent's signature if they are underage. The marriage partners should neither have been married at the time of their union to one another. Additionally, the marriage cannot be between related parties.

For a couple to be considered under the common law marriage arrangement, they must have lived together in a marriage-like relationship for about 3 years. There is a legal provision that allows common-law spouses to enter into a cohabitation agreement, which will help each partner to protect his or her property rights.

For those who have lived together fewer than three years, the relationship is still considered legally as an informal marriage if the spouses have had a child together and the relationship had permanence. Those in an informal marriage have the right to spousal support upon dissolution of the relationship.

Additionally, if the marriage ends, common-law spouses may be entitled to certain rights in connection to their partners' property. Common-law partners don’t have similar property rights as spouses legally married, but under the right circumstances, similar rights may be enforced. 

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