Are common law marriages different from state to state?

“Common law marriage” is a term used to describe a legally binding marriage for which there was never a marriage ceremony performed or a marriage license issued. Such unions were more common in the United States during the frontier days, when couples might live together, raise families and consider themselves married without incurring the time and expense necessary to formalize the marriage before a distant minister.

Many people believe that a common law marriage can be formed simply by living with a person for a certain number of years. Such a rule does not exist in any state. Only a few states recognize common law marriages, and there are specific requirements for forming such a union that are far stricter than simply living together as a couple.

The states that permit common law marriages are: Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah and Washington, D.C.

There are other states that recognize common law marriages if they were formed before specific dates. These states and their cut off dates are: Georgia (01/01/1997), Idaho (01/01/1996), Ohio (10/10/1991), Oklahoma (11/1/1998), and Pennsylvania (01/01/2005).

New Hampshire is unique in that it permits a form of common law marriage which only establishes a right of inheritance for a surviving partner as if that partner was a spouse.

The requirements for a valid common law marriage vary in each state. Persons interested in knowing whether a particular relationship might qualify as a common law marriage in one of the states listed above should consult a local attorney. In general, though, there are general factors that are common to all such situations.

Firstly, the parties to a common law marriage must be capable of entering into a “regular” marriage. State laws governing the minimum age for getting married, laws against such conditions as bigamy, incest and mental capacity, apply to common law unions.

Secondly, the couple must hold itself out publicly as being married. This means telling people that you are married, having joint bank accounts, filing joint tax returns, and other public statements that would make a third party believe that the couple is married. Some states (Alabama, Iowa, Kansas, Montana, Oklahoma, Ohio, Pennsylvania, Rhode Island, Texas, and Washington, D.C.) require that both parties consider themselves to be married, but in other states (Colorado and Utah) it is possible to form a common law marriage even if the parties do not intend it. In such a case, a surviving party could obtain the rights of a surviving spouse, even if the deceased party did not consider a marriage to exist. South Carolina may fall somewhere between these two options, mandating only that the couple wishes for others to consider them to be married.

A couple that forms a common law marriage is bound by the laws that affect regularly formed marriages. Should the parties break up, a divorce is necessary to end the union. The parties can be liable for spousal and child support. If you choose to end your relationship, you must get a divorce, even though you never had a wedding. Legally, common law married couples must play by all the same rules as "regular" married couples.

In an age when many couples live together, often for long periods of time, and such arrangements are more socially acceptable, common law marriages are rarer than they were in the past. Still, there are certain rights and obligations that differ between married and unmarried couples, so that the question of marriage is not irrelevant. Because they are still legal in some places, it is important to know what the conditions are that might form one, and act according if a cohabiting couple wants to create one, or avoid one.

Photo courtesy of K. Sawyer Photography