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Common Law Marriage


Common Law Marriage:
A marriage not solemnized in the ordinary way (i.e., there was no ceremonial wedding), but created by an agreement to marry followed by cohabitation and holding oneself out as married.

The ability to understand the nature and effects of one’s acts. Having competency to undertake a task such as marriage.

Holding Out:
Telling people, or publicly recognizing that a couple is married. For example, signing into a motel as “Mr. and Mrs. Smith.”

The completion of a marriage by cohabitation (i.e., sexual intercourse) between spouses.

Full Faith and Credit Clause:
The clause of the U.S. Constitution (Art. IV, Sec. 1) which provides that the various states must recognize legislative acts, public records, and judicial decisions of the other states within the United States. 

A common law marriage is an agreement between spouses to enter into the marital relationship without a civil or religious ceremony.  The marriage must be valid in all other aspects - e.g., not a bigamous marriage and within the allowed degrees of relationship. In states that allow for common law marriage, if you fulfill the requirements, you are a legally married couple in every way, even though you never obtained a marriage license.

Just living together is not enough to validate a common law marriage. Not every couple that lives together intends to be married.  There are four three requirements for a valid common law marriage:

  1. The couple must live together.  The specific amount of time required is not defined and varies from jurisdiction to jurisdiction.  Some states require a prolonged period of time while other states do not require a prolonged cohabitation.
  2. The couple must present itself to others as a married couple (e.g., using a common surname and filing a joint tax return);
  3. The couple must intend to be married.

EXAMPLE: Fred and Rosanne told a few persons they were married although they never had a ceremonial marriage. Fred and Roseanne had sexual relations but did not live together and observed great secrecy with respect to their relationship.  Fred and Roseanne do not have a valid common law marriage because: (1) They did not enter into an agreement to marry; (2) They did not hold themselves out to all persons to be husband and wife; and (3) They did not cohabit.  See, e.g., Ex parte Threet, 333 S.W.2d 361 (Tex. 1960).

Because a common law marriage is not formally recorded, the couple, if challenged, may have to prove the existence of their marriage contract.  They may have to prove that they live together as spouses and present themselves to the public as a married couple. Where recognized, a common law marriage is as valid as a typical marriage. 

EXAMPLE: Although Joe and Melissa never formally married, they tell people they are married, they use the same surname, they buy a house together and they tell their children’s teachers that they are husband and wife.  This conduct rises to the level of holding oneself out to the public as a married couple.  Further probative evidence is that they cohabitate. Cohabitation has its own requirements: living together (sharing a common household) and having a sexual relationship. 

The plaintiff will carry the burden of presenting evidence that the couple’s residency in a common law state where they held themselves out as married did not create a marriage deserving of recognition. The courts have a strong preference towards marriage, and view cohabitation and reputation as husband and wife as probative facts in determining whether a common law marriage exists.  See, e.g., In Re Benjamin, 34 N.Y.2d 27 (1974).

Ten states and the District of Columbia currently recognize common law marriages.  Each of these jurisdictions has unique requirements for validating a common law marriage.  A few sample provisions include:

(1) capacity; (2) an agreement to be husband and wife; and (3) consummation of the marital relationship.
Cohabitation and a reputation for being married.
District of Columbia
(1) an express, present intent to be married and (2) cohabitation.
(1) intent and agreement to be married; (2) continuous cohabitation; and (3) public declarations that the parties are husband and wife.

The other states that recognize some form of common law marriage are:

  • Kansas
  • South Carolina
  • Montana
  • Texas
  • Oklahoma
  • Rhode Island
  • Utah (only if validated by court order)
  • New Hampshire (for probate purposes only)

Until recently Pennsylvania was also on this list.  Breaking with years of tradition and precedent, the Commonwealth of Pennsylvania recently abolished common law marriage, albeit prospectively. 

EXAMPLE: The common law husband of a deceased employee sought pension benefits from his deceased common law wife’s employer after she died in a plane crash.  As part of its argument, the employer advanced the proposition that common law marriage should be abandoned. Its other argument was that the claimant had not met the burden of proof required to establish a common law marriage.  Although the Court agreed with the employer on the issue of abolishing common law marriage (prospectively), it found that the husband had met the burden of proof regarding establishing his common law marriage, thereby becoming eligible for the pension benefits.  Rather than forestalling a claim for death benefits, the employer instead changed the law.  See, e.g., PNC Bank Corporation v. Workers’ Compensation Appeals Board (Stamos), 831 A.2d 1269 (Pa. Comw. 2003). 

In disfavoring common law marriage, the Court in Stamos sought to create a bright line rule to eliminate the confusion around determining who was a legitimate spouse, eligible to participate in benefits that go along with this status. Nevertheless, since this issue had not reached the highest Pennsylvania court (the Pennsylvania Supreme Court), federal agencies such as the Social Security Administration were still forced to follow the old law, i.e., that common law marriage is still recognized. In 2005, the Pennsylvania legislature resolved this issue by abolishing all common law marriages entered into after January 1, 2005.

Other examples of limited acceptance of common law marriage are: New Hampshire, which recognizes common law marriages only for the purposes of inheritances; and Tennessee which has employed a doctrine of “estoppel to deny marriage.” The estoppel principle is applied to an invalid or ineffective divorce and is used to prevent parties to such divorce from later asserting that they are still validly married. A common application is in the context of Social Security cases. Specifically, the parties are precluded from denying that the divorce is valid to obtain Social Security benefits.

In every other state common law marriage has been abolished by statute as a means to alleviate confusion as to marital status.  Common law marriages became disfavored in the early twentieth century because there was a modern need for records and proof, and there were public health reasons requiring testing as a prerequisite to marriage.  In addition, common law marriage was seen as encouraging fraud and debasing conventional marriage.  It was recognized historically due to the difficulty in finding clergy or justices of the peace in the early history of this country.  This uncertainty is particularly problematic when there is a need to establish rights in situations such as standing to bring a wrongful death suit or entitlement to property at death.

Due to public policy that favors validating marriages, if a couple entered into a common law marriage in a state that allowed it, then the common law marriage will be valid if the couple moves to a state that does not ordinarily recognize common law marriage.  This recognition comes from the Full Faith and Credit Clause of the U.S. Constitution, which requires states to recognize certain acts of sister states.

EXAMPLE: Scott and Tina live in New York, which does not recognize common law marriage. They agree to live together “just as though [they] were married.”  There is never a formal ceremonial marriage, but they consider themselves “husband and wife.”  Scott gives Tina a wedding band, Tina begins using Scott’s last name, and they hold themselves out as being married.  Although Scott and Tina are always domiciled in New York, they visited Pennsylvania a total of 16 days at various times during their “marriage.”  After 21 years, Scott dies and Tina seeks Social Security benefits as a surviving spouse, based on her claim there is a common law marriage under Pennsylvania law (before the recent change).  Tina won the right to benefits because there was sufficient proof that there was a valid common law marriage - cohabitation and reputation as husband and wife.  The marriage is considered valid in New York because it is was valid in Pennsylvania at the time it was entered into.  See, e.g., Renshaw v. Heckler, 787 F.2d 50 (2d Cir. 1986).

As with formal marriage, a common law marriage has to be genuine and not a sham.

EXAMPLE: Barbara and Hank tell their future employers that they are married so they can obtain health insurance and other benefits as a “spouse.”  Barbara and Hank’s friends know the truth - they only used the status for the benefits.  This union will not be considered a common law marriage because Barbara and Hank had no intention of being married. 

When an impediment to a valid common law marriage is removed while the parties are living together as husband and wife in a jurisdiction in which common law marriages are recognized, a valid common law marriage will result as of the time the impediment is removed.

EXAMPLE: Peter and Heidi live together as husband and wife in a jurisdiction which recognizes common law marriages, but they never have a formal marriage ceremony.  Peter was married to Michelle prior to living with Heidi, and did not obtain a divorce from Michelle before cohabiting with Heidi.  Peter, however, did divorce Michelle six years before Heidi’s death at which time he was free to remarry.  At Heidi’s death, Peter claims certain death benefits as Heidi’s surviving common law husband.  The court held Peter was entitled to the benefits as Heidi’s surviving spouse.  The fact that they lived together as husband and wife after the impediment was removed, gives rise to a valid common law marriage.  See, e.g., Matthews v. Britton, 303 F.2d 408 (D.C.App. 1962).

Conversely, there is no such thing as common law divorce.  Once parties are married, regardless of the manner in which their marriage is contracted, they are married and can only be divorced by a court. In all 50 states, marriages can only be terminated by a court order.

EXAMPLE: Jen and Brad are dating and live in New York. Brad gets accepted into a six-month, post-graduate training program in Denver. Brad's boss will pay for Brad to live there to get his training. Brad asks Jen to go, and she accepts.  They tell people in Colorado (a common law state) that they are married. After six months, they move back to New York.  New York will recognize this marriage because the two met all the requirements for a common law marriage in Colorado. A year later when there is a breakdown in the relationship Jen must file for divorce to terminate the relationship. 

As far as other aspects of common law marriage are concerned, children always have a presumption of legitimacy.  The children born to a married couple are presumably the husband’s children.  The same is true for common law marriage.