What Is Common Law Marriage and Which States Allow It?
Is it true that couples who live together can become legally married, even if they don’t have a marriage license? Common law marriage is subject to many myths and misunderstandings. A widespread myth is that common law marriage kicks in after 7 years of living together. This is untrue, but common law marriage does exist in some states. Common law marriage can have significant implications for many couples.
Quick Guide: What is Common Law Marriage? | What States allow Common Law Marriage? | How does Common Law Marriage work? | Why do some states allow Common Law Marriage and others do not?
What is Common Law Marriage?
A common law marriage is a marriage formed by a couple that did not get a marriage license or take part in a ceremony. Besides this difference, a common law marriage is the same as a traditional marriage. While common law marriage is not available in most states, it is available in a minority of states.
What states allow Common Law Marriage?
Only 8* states and the District of Columbia allow the formation of new common law marriages. In some states, such as Texas, common law marriage is also known as “informal marriage.” Many other states used to allow common law marriage. These states still recognize marriages formed before they abolished common law marriage. All states recognize common law marriages formed in a state that allows them.
** New Hampshire recognizes common law marriage for inheritance purposes only.
The laws surrounding common law marriage frequently change. Online sources often conflict about common law marriage. For example, the information on FindLaw.com is different from the Cornell Law website. The table above describes the current state of the law with regard to common law marriage as of 2021.
How does Common Law Marriage work?
Once a couple has met the requirements to create a common law marriage, the law treats them the same as traditionally married couples.
What are the requirements for Common Law Marriage?
Requirements vary among states that allow common law marriage. The following requirements usually apply:
· The couple must live together.
· Both individuals must intend to be married to one another.
· The couple must present themselves to others as married.
The more evidence available for each of these requirements, the more likely a court will recognize a common law marriage. For example, a court is more likely to recognize a couple as married if they have lived together for 10 years than if they have lived together for 2 years. A court is more likely to recognize a couple that has adopted the same last name than a couple that has not.
What are the benefits of a Common Law Marriage?
Common law married couples receive the same benefits that other married couples receive. These benefits relate to income tax, social security, inheritance, medical decision making, and more.
Is divorce required to end a Common Law Marriage?
Yes. To end a common law marriage, a married couple must go through the process of divorce (or annulment). This means the couple must agree to a divorce settlement or go to trial to decide the terms of the divorce. Divorce settles issues of property division, child custody, child support, and spousal support. If a couple tries to end a common law marriage without a divorce, either spouse might make legal claims over these issues in the future.
Are same-sex couples eligible for Common Law Marriage?
Yes. The Supreme Court ruled in Obergefell v. Hodges (2015) that states must issue marriage licenses to same-sex couples. This ruling likely means that states must treat same-sex and opposite-sex common law marriages the same.
In a 2017 case, Pennsylvania courts recognized a common law marriage for a same-sex couple. The court decided the couple was married even though Pennsylvania stopped allowing new common law marriages in 2005. The couple presented themselves as married since 1997.
Why do some states allow Common Law Marriage and others do not?
A majority of states used to recognize common law marriage. Common law marriage permitted people to marry in places where they did not have access to courts. Progress in transportation technology reduced the need for common law marriage.
Most states have abolished common law marriage. This prevents confusion about whether a couple is married. The trend of abolishing common law marriage continues to this day. In 2019, the South Carolina Supreme Court decided to stop recognizing common law marriage.
