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 legal framework in a limited number of jurisdictions where a couple is legally considered married, without that couple having formally registered their relation as a civil or religious marriage. The original concept of a "common-law marriage" is a marriage that is considered valid by both partners, but has not been formally recorded with a state or religious registry, or celebrated in a formal religious service. In effect, the act of the couple representing themselves to others as being married, and organizing their relation as if they were married, acts as the evidence that they are married.

The term common-law marriage has wide informal use, often to denote relations which are not legally recognized as common-law marriages. 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]

General principles

The requirements for a common-law marriage to be validly contracted differ from state to state.

All states, however, recognize common-law marriages that were validly contracted in other states under their laws of comity and choice of law/conflict of laws. (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.)

Common-law marriage also exists in the Native American tribes. Among Native American tribes, for example, the Navajo Nation permits common-law marriage and allows its members to marry through tribal ceremonial processes and traditional processes.^[2] Otherwise, common-law marriages can no longer be contracted in any of the other states.

Income tax purposes and other federal provisions

A common-law marriage is recognized for federal tax purposes if it is recognized by the state or jurisdiction where the taxpayers currently live, or in the state where the common-law marriage began. 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). Practitioners should be alert to the specific state or jurisdiction requirements in order for their clients who are contemplating filing joint returns satisfy the requirements of the state or jurisdiction to be considered common-law married.

In February 2015, the United States Department of Labor issued its final rule amending the 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.^[3] The revised definition of "spouse" 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.^[4] Accordingly, even if an employer has employees working where same-sex or common-law marriage is not recognized, those employees’ spouses would trigger FMLA coverage if an employee was married in one of the many states that recognize same-sex marriage or common-law marriage.^[5]

State law issues

Common-law marriage in the United States can still be contracted in the District of Columbia^[6] as well as in the following ten(10) states: Alabama (until January, 2017),^[7] Colorado,^[8] Iowa,^[9] Kansas,^[10] Montana,^[11] Oklahoma,^[12] Rhode Island,^[13] South Carolina,^[14] Texas,^[15] and Utah.^[16]

Common-law marriages can no longer be contracted in the following twenty-six(26) states, as of the dates given: Alaska (1917),^[17] Arizona (1913), California (1895), Florida (1968), Georgia (1997), Hawaii (1920), Idaho (1996), Illinois (1905), Indiana (1958), Kentucky (1852), Maine (1652, when it became part of Massachusetts; then a state, 1820), Massachusetts (1646), Michigan (1957), Minnesota (1941), Mississippi (1956), Missouri (1921), Nebraska (1923), Nevada (1943), New Jersey (1939), New Mexico (1860),^[18] New York (1933,^[19] also 1902^[20]–1908), North Dakota (1890), Ohio (1991), Pennsylvania (2005), South Dakota (1959), and Wisconsin (1917).

The following thirteen(13) states never permitted common-law marriages: Arkansas, Connecticut, Delaware, Louisiana, Maryland, North Carolina, Oregon, Tennessee, Vermont, Virginia, Washington, West Virginia, and Wyoming.

One(1) state recognizes common-law marriage only through death (for probate purposes): New Hampshire^[21]

Divorce in Common-Law Marriage

All states—including those that have abolished the contract of common-law marriage within their boundaries—recognize common-law marriages lawfully contracted in jurisdictions that permit it.^[22] Some states that do not recognize common-law marriage also afford legal rights to parties to a putative marriage (i.e. in circumstances when someone who was not actually married, e.g. due to a failure to obtain or complete a valid marriage license from the proper jurisdiction, believed in good faith that he or she was married) that arise before a marriage's invalidity is discovered.This is because all states provide that validity of foreign marriage is determined per lex loci celebrationis — that is, "by law of the place of celebration." In addition, the full faith and credit clause of the U.S. Constitution, discussed below, requires all U.S. states to recognize the validity of official acts of other U.S. states. Thus, a marriage validly contracted in Ohio, including common-law marriages entered into before that state abolished new common-law marriages in 1991, is valid in Indiana, even though the common-law marriage could not have been legally contracted in Indiana, because Ohio law is the basis of its validity. However, by the same principle, a marriage that was not lawfully contracted in Ohio would not be valid in Indiana even if it could have been lawfully contracted there. Additionally, some courts have held that all marriages performed within the U.S. must be valid in all states under the Full Faith and Credit Clause of the U.S. Constitution.^[23] However, none of the cases to date has actually used the Clause to validate a sister-state marriage, and there is currently no known appellate case on the issue, working its way through U.S. courts, that is likely to reach the U.S. Supreme Court — whose decision would apply nationally, not just locally or within a particular state or a federal circuit.

Note there is no such thing as "common-law divorce" in the United States — that is, a married couple cannot terminate a common-law marriage as easily as they got into one. Only the contract of the marriage is irregular; everything else about the marriage is the same as a regularly licensed and solemnized marriage. Divorce or dissolution of marriage requires filing a petition for divorce or dissolution in the appropriate court in their state.^[24]

Validity of a Common-Law Marriage

Rulings on the validity of a particular common-law marriage frequently refrain from identifying a specific date of marriage when this is not necessary, because often, there is no one event or marriage ceremony that establishes this date. Even when a relationship begins in a state that does not recognize common-law marriage, if the couple relocates to a state that recognizes common-law marriage, a common-law marriage between the parties is often recognized if the couple's relationship continues in the new state. It is not uncommon for someone to claim to be a spouse based upon time the couple spent together in a common-law marriage state even after the couple leaves that state. The case law does not definitively establish whether a couple who are briefly present in a common-law marriage state, and who otherwise are eligible to be considered common-law married, but who do not establish domicile in that state, will be recognized as common-law married in a state that does not itself have common-law marriage.

Legislation in Common-Law states

The requirements for a common-law marriage to be validly contracted differ in the eleven U.S. jurisdictions which still permit them.

Alabama

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 after 265 days, and consummation.^[25] As of January 1, 2017, Alabama will abolish common-law marriage.^[26]

Colorado

The elements of a common-law marriage are, with respect to both spouses: (1) holding themselves out as husband and wife; (2) consenting to the marriage; (3) cohabitation; and (4) having the reputation in the community as being married.^[27] Different sources disagree regarding the requirement of cohabitation and some indicate that consummation (i.e. post-marital sexual intercourse) is also an element of common-law marriage. 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.^[28]

Colorado, Montana, and Texas are the only U.S. states to recognize both putative marriage and common-law marriage.^[29][30]

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."^[31][32]

Common-law marriages have been recognized in the District of Columbia since 1931.^[33][34] 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."^[34]

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.^[35] The public declaration or holding out to the public is considered to be the acid test of a common-law marriage.^[36]

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.

^[37]

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.^[38]

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."^[39][40]

Nevada

Nevada doesn't recognize common-law marriage. However, in Williams v. Williams, 120 Nev. 559, 97 P.3d 1124, 2004 Nev. LEXIS 84, 120 Nev. Adv. Rep. 64 (Nev. 2004), adopted the majority opinion of the putative spouse doctrine. This doctrine, accepted by a majority of states, is when a marriage is found to be void because of a prior legal impediment. In the Williams case, the wife and husband filed for a marriage, license, held a ceremony, and both felt they were married. However, Mr. Williams' divorce to a previous wife was found to have been dismissed by the court without Mr. Williams' knowledge. With his previous divorce not valid, under Nevada law his marriage to the new Mrs. Williams was void. He could not get married if he was still married. The Nevada courts ruled Mrs. Williams was a putative spouse and for the purposes of the new divorce against Mr. Williams, the courts would allow Mrs. Williams to plead for community property rights as much as any other spouse.

New Hampshire

New Hampshire recognizes common-law marriage for purposes of probate only. 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.^[41]

Oklahoma

The situation in Oklahoma has been unclear since the mid-1990s, with legal scholars reporting each of 1994, 1998, 2005, and 2010 as the year common-law marriage was abolished in the state. However, as of September 12, 2016, the Oklahoma Tax Commission continues to represent common-law marriage as legal there,^[42] and the Department of Corrections continues to reference common-law marriage though that could refer to older marriages.^[43] No reference to the ban appears in the relevant statutes;^[44][45] the 2010 bill that attempted to abolish common-law marriage^[46] passed the state Senate, but died in a House committee.^[47] Multiple legal websites continue to represent common-law marriage as legal in Oklahoma.^{[48][49][50][51]}

Oklahoma common-law status is much controverted, but as of February 19, 2014, several Oklahoma executive agencies continue to represent it as legal,^[52] and a reputed ban in 2010 cannot be found in its statutes.^[44]

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.^[53]

South Carolina

The criteria for a common-law marriage are: (1) when two parties have a present intent (usually, but not necessarily, evidenced by a public and unequivocal declaration) to enter into a marriage contract; and (2) "a mutual agreement between the parties to assume toward each other the relation of husband and wife."^[54] Common law marriages can dissolve in legal divorce and alimony.

Texas

The Texas Family Code, Sections 2.401 through 2.405,^[55] 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. after such agreement, cohabitation within the State of Texas; and
3. after such agreement, representation to others (within the State of Texas) that the parties are married.

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.^[56] 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 were never informally married, but this presumption is rebuttable.

Utah

Utah's status with common-law marriage is mixed. Government websites claim that common-law marriage does not exist in Utah.^[57] However, other legal websites state that non-matrimonial relationships may be recognized as marriage within one year after the relationship ends.^[58] This is very similar to common-law marriage.

Utah recognizes common-law marriages only if they have been validated by a court or administrative order. For a common-law marriage to be legal and valid, "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" ^[59] 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.

Also, non-matrimonial relationships may be recognized as marriage within one year after the relationship ends, via validation by the above mentioned court or administrative order.^[58]

Legislation in Non-Common-Law States

California

California Family Code Section 308 provides that a marriage validly contracted in another jurisdiction is valid in California. 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". In general, states which have abolished common-law marriage continue to recognize such marriages contracted in the past (i.e. before the date when they were abolished).

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."^[60] Oklahoma common-law status is much controverted, but as of February 19, 2014, several Oklahoma executive agencies continue to represent it as legal,^[52] and a reputed ban in 2010 cannot be found in its statutes.^[44] The situation in Pennsylvania became unclear in 2003 when an intermediate appellate court purported to abolish common-law marriage^[61] even though the state Supreme Court had recognized (albeit somewhat reluctantly) the validity of common-law marriages only five years before.^[62] The Pennsylvania legislature resolved most of the uncertainty by abolishing common-law marriages entered into after January 1, 2005.^[63] 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.^[64]

Notes and references