What is a Common Law Marriage
How to Get Married Without a Marriage License or a Wedding Ceremony
Jun 16, 2008 William L. Pfeifer Jr.
Most states require individuals desiring to get married to obtain a marriage license and go through a wedding ceremony before a proper authority (minister, judge, etc.). However, a few states recognize what is known as a common law marriage. A common law marriage is a type of marriage created by the actions of the parties, but without the formalities which accompany entering a marriage by more conventional means.
In order for a person to have a common law marriage, all of the following elements must exist:
- Capacity to marry. A person must have the legal capacity to enter into a formal marital relationship in order to form a common law marriage. Examples of when a person would not have capacity to marry would include situations such as where one is too young to legally marry, or where one of the parties is already in a legal marriage to someone else and attempts to marry prior to obtaining a divorce.
- Cohabitation. There is no specific amount of time the parties must live together, but cohabitation is a requirement of a common law marriage. A common law marriage could be found to exist in as little as one day if the other elements of a common law marriage exist. Likewise, a couple could live together for five years, ten years, twenty years, or even more, and not have a common law marriage if the other requirements are not met.
- Consummation. Often referred to euphemistically as the assumption of marital duties or considered to fall within the scope of cohabitation, the parties to the common law marriage must have had sex in order for a common law marriage to exist. No common law marriage exists unless the relationship was consummated.
- Agreement or Consent. A common law marriage does not happen by accident. To be a valid common law marriage, the parties must have the intention of entering into a permanent and exclusive marital relationship, whether that intent occurs by a formal agreement or by mutual consent. Whether the parties had an agreement or consented to be married is often inferred from the other factors making up common law marriage, particularly cohabitation and the next factor, public recognition.
- Public Recognition. A common law marriage does not exist in secret. Part of establishing the existence of a common law marriage is showing that the couple held themselves out to the public as husband and wife. Examples of ways in which parties achieve public recognition of the marital relationship include filing joint tax returns, referring to one another as spouses in public, naming each other as beneficiaries on insurance policies, commingling of assets, the wife's use of the last name of the husband, and other actions which show an intention to live openly as husband and wife.
As of the writing of this article, only a few states allow the formation of a common law marriage. Places where a common law marriage currently can be formed include Alabama, Colorado, Iowa, Kansas, Montana, , Rhode Island, South Carolina, Texas, Utah, and Washington, D.C. However, states such as Georgia, Idaho, Oklahoma, and Pennsylvania will recognize common law marriages formed within those states before certain dates in the past. In states in which a common law marriage can be formed, certain nuances may exist as to the proper way to create this marital relationship. Also, states that do not allow the forming of a common law marriage within their own borders will typically recognize a common law marriage formed in a state where it would have been valid. Finally, remember that while states may recognize a common law marriage, no state recognizes procedures for a common law divorce. If you have questions about whether you are in a valid common law marriage, contact a local family law attorney to review the specifics of your situation.
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