Common-law marriage is a legally recognized form of marriage in only seven of the fifty states within United States. It is formed without the same formalities as a regular marriage — without a license or a formal ceremony. Common-law marriage has three requirements: (1) the couple lives together in an intimate relationship, (2) the couple agree that they are married, and (3) the couple presents themselves to the public as a married couple. It survives in only seven U.S. states as of 2022: Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas and the District of Columbia along with some provisions of military law. Further, three other states, Utah, South Carolina, and New Hampshire recognize domestic common law marriage after the fact for limited purposes.
Disputes over common-law marriage arise in two contexts — first, when the two parties end the relationship, one may claim they were married while the other may say they were only living together; and second, when one party dies, the other may claim inheritance or benefits from the employer or insurance. Because a common-law marriage is a form of lawful marriage, it cannot be ended by separation alone. There is no such thing as "common law divorce"; it requires a legal divorce and formal judicial proceeding. 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.The first documented divorce in the U.S. occurred in 1887, when Frank J. Bowman of St. Louis sued for divorce from his common law wife, Ida M. Bowman. The court granted the divorce along with alimony to Ms. Bowman of fifteen dollars per week.
The fact that a couple is cohabitating for a certain number of years — even if they buy a home together or have children together — is by itself not sufficient to establish a common-law marriage.Gammelgaard v. Gammelgaard, 247 Iowa 979, 980, 77 N.W.2d 479, 480 Despite this, the term common law marriage is often improperly used colloquially or by the media to refer to cohabiting couples, which can create public confusion both in regard to the term and in regard to the legal rights of unmarried partners. Common-law marriage is also known as informal marriage, or marriage in fact.
Origin of common-law marriage in the United States
It is sometimes mistakenly claimedBarlow, A., Duncan, S., James, G., and Park, A., (2005) Cohabitation, Marriage and the Law: Social Change and Legal Reform in the 21st Century (Oxford: Hart), p.53 that, before England's 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.Probert, R., "Common-Law Marriage: Myths and Misunderstandings", Child & Family Law Quarterly vol.20 issue 1 p.1 Far from being treated as if they were married, couples known to be cohabiting risked prosecution by the church courts for fornication.Probert, R. (2012) The Legal Regulation of Cohabitation, 1600–2012: From Fornicators to Family (Cambridge: Cambridge University Press), ch. 2.
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.
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."
The following U.S. states continue to recognize common law marriages, albeit with varying requirements:
Colorado The District of Columbia Iowa Kansas Montana Oklahoma; but as noted, status may be unclear. Rhode Island Texas
Two other jurisdictions recognize domestic common law marriage in limited circumstances:
New Hampshire recognizes domestic common law marriage for purposes of probate only. 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.
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. For example, 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.
Alabama (2016) Alaska (1917), as the Territory of Alaska Arizona (1913), part of New Mexico Territory 1850–1863; then the Territory of Arizona to 1912 California (1895)California abolished common law marriage in 1895 Welch v. State of California, No. F033421. Fifth Dist. Aug. 30, 2000) Florida (1968) Georgia (1997) Hawaii, as the Territory of Hawaii (1920); previously the independent Kingdom of Hawaii, to 1893; then Republic of Hawaii, 1894–1898. Idaho (1996) Illinois (1905)Roska, John. "Common law marriage depends on the state". The News-Gazette (Champaign-Urbana, Illinois). July 13, 2003. p. C4. Indiana (1958) Kentucky (1852) Maine (1652, when it became part of the Massachusetts Bay Colony; it became a separate state in 1820) Massachusetts (1646) Michigan (1957) Minnesota (1941) Mississippi (1956) Missouri (1921) Nebraska (1923) Nevada (1943) New Jersey (1939) New Mexico (1860), as the Territory of New Mexico, a state from 1912New Mexico may never have had common law marriage: In re: Gabaldon's Estate , 1934-NMSC-053, 38 N.M. 392, 34 P.2d 672 (New Mexico Supreme Court, 1934) New York (1933, also 1902–1908), North Dakota (1890) Ohio (1991) Pennsylvania (2005) – Common-law marriages existing as of January 1, 2005, remain valid.P.L. 954, No. 144, § 1, effective Jan. 24, 2005. South Carolina (2019)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) South Dakota (1959) Wisconsin (1917)
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.
Arkansas Connecticut Delaware Louisiana Maryland North Carolina Oregon Tennessee Vermont Virginia Washington West Virginia Wyoming
Outside of confederation, the Territory of Guam does not recognise common law marriage. 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.
Marriage under tribal law is distinct from state marriage law. Many indigenous 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. Otherwise, common law marriages can no longer be contracted in any of the other states.
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.
Court have held that "A claim of common-law marriage is regarded with suspicion and is closely scrutinized."In re Marriage of Grother, 242 N.W.2d 1 (Iowa 1976) Further, the burden of proof is on the person claiming the existence of a common-law marriage to prove it by a preponderance of evidence.
Intent to be married In the case In Re: the Marriage of Edi L. Hogsett (2021), in evaluating whether a common-law marriage existed, the court stated that "The core query 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." Further, "courts should accord weight to evidence reflecting a couple's express agreement to marry." The court noted "the centrality of the couple's mutual consent or agreement to marry" while emphasizing that "a mutual agreement to marry does not alone suffice; there must be some evidence of subsequent conduct manifesting that agreement."IN RE: the Marriage of Edi L. HOGSETT (2021), https://caselaw.findlaw.com/court/co-supreme-court/2106167.html
Presenting as a married couple to the public