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A common-law marriage is a marriage that otherwise meets the conditions of a legal marriage but requires neither a marriage license nor a formal legal process. In other words, a common-law husband and wife do not have a marriage license but live as they are married and present themselves socially as married.
Only a few states, along with the District of Columbia, grant common-law marriages: Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina and Utah. Most states have passed amendments to their constitutions to no longer permit common-law marriage.
Even though most states no longer grant common-law marriages, the majority recognize it as a form of legal marriage if the parties have fulfilled the legal requirements of common-law marriage as residents of a granting state.
States vary in the criteria by which they evaluate common-law marriages, but they generally agree that parties to a common-law marriage must:
These requirements demand that the couple not only think about their relationship as a marriage but also behave as in a marriage. These requirements ensure that both parties wish to be considered by others as husband and wife, agree that their relationship is an example of marriage and live together in order to perpetuate a relationship of that kind.
Couples married under common law lack a marriage license, the legal license issued by the state in recognition of a ceremonial marriage. If the status of a common-law marriage is challenged, or if life changes require a couple to prove they have a common-law marriage, a marital relationship can be inferred from other documents and from speech. If one common-law spouse dies, the other might want to claim life insurance or pension benefits as a lawful spouse. In order to claim those benefits, the surviving spouse must prove that a marriage existed under the common law.
Bank statements, insurance and retirement claims forms, and other documents indicating a shared possession of assets and interests help establish proof of a common-law couple’s marital commitment. A couple who file joint rather than individual tax returns, hold joint checking and savings accounts and own joint property can use these documents to prove their common-law status.
Public opinions can attest to a couple’s common-law marital status. A woman who takes the surname of the man with whom she lives presents herself to others as would a married woman and is thus perceived socially as being married. A common-law couple should be sure to establish a reputation that supports a claim to married status.
A relationship between two people does not automatically receive legal status as a common-law marriage simply because they live together without a marriage license or ceremony, even if they reside together for years. Substantial proof that the couple has met the conditions of marriage must be given before an approving state will grant common-law marital status to the partnership.
A couple petitioning for status as married under common law must prove also that they fulfill all of a state’s general requirements for the right to marry, including age, sex, and marital and medical status.
Like in a ceremonial or licensed marriage, common-law spouses must go through a legal process to end the marriage. The common-law couple must file for a standard divorce, the only legal means to end a common-law marriage. Divorce proceedings are the same as for a licensed marriage.
Last update: Oct. 22, 2008
