Common-Law Marriage
(Maybe ‘You Did’ Without Having Said “I Do”)

By Martin Hoffman, JD

Marriage is traditionally considered to be a civil contract between a man and a woman to be husband and wife. The validity of a marriage is determined under the laws of the state where the marriage is entered into- if the marriage is valid where the ceremony took place, it will be held valid throughout the United States. Generally, in order to enter into a valid marriage, the parties must have the same mental capacity as is necessary to enter into a civil contract.

Marriage ceremonies may be religious or civil. The person who performs the ceremony must be authorized by law to do so. Generally, ministers, priests, rabbis, judges, a justice of the peace and in some states, notaries public, are authorized to perform wedding ceremonies. Other than requiring an indication of willingness to enter into the marriage, no special language or format is required for the marriage ceremony. Most states require witnesses to the marriage ceremony.

During the time that this country still had an expanding frontier, most states considered a man and woman to be married if they lived together for a certain length of time, had sexual intercourse and represented to the community at large that they were married, even if they never went through a formal civil or religious marriage ceremony. These unions were called ‘common-law marriages’. By 1950, most states had abolished common-law marriage by statute, as they were seen as encouraging fraud and condoning vice, debasing conventional marriage, and as no longer necessary with increased access to clergy and justices of the peace. Nevertheless, while the institution of common-law or informal marriage has been steadily declining across the United States in recent years, common-law marriages can be entered into in eleven states and the District of Columbia.

A common-law marriage comes into existence when a man and women live together, act as if, and represent to the world at-large that they are husband and wife. At a minimum, the couple must overtly express or manifest an intention to be married and have a reputation of being married. There is no particular length of time that a couple must live together to have a valid common-law marriage, but the longer they live together, the more likely it is that the intent to marry will be established. Most of the states that currently recognize common-law require that cohabitation (sexual intercourse) have taken place.

If a common-law marriage was entered into at a time that such marriages were recognized by the state, the marriage is valid even if such marriages have subsequently been abolished by the state legislature. In order to terminate such a marriage, a divorce is necessary. Common-law marriages create the same rights, duties and obligations as exist for couples married in a civil or religious ceremony.

The rights of a surviving spouse, including a common-law spouse, extend to burial decisions. Unless the deceased has previously indicated his/her burial/funeral choices by will or power of attorney, in most states, the surviving spouse is the one who will make funeral/burial decisions. If the validity of a common-law marriage is disputed, there may be a delay of several months before the court decides the issue. Usually, by statute, decision-making authority is given to (in order of priority): a spouse, children, parents, brothers and sisters, and other surviving kin.

Common-law marriages are currently recognized in

Alabama
Colorado
The District of Columbia
Iowa
Kansas
Montana
Oklahoma
Pennsylvania
Rhode Island
South Carolina
Texas
Utah

If a common-law marriage has come into existence within the borders of a state that recognizes it, and the couple moves to a state where such marriages cannot be contracted and may be contrary to public policy, the new state will nevertheless generally recognize the marriage as legal and valid.

Common-law marriages are not formally recorded in the public records of the state. Often, the question of whether a valid common-law marriage is valid arises in the context of a will contest, where an alleged common-law spouse is claiming a share of the estate, a divorce proceeding, where alimony is requested, or a wrongful death action, where a survivor requests money damages for the loss of a spouse. Where the marriage is in dispute, the court will conduct an evidentiary hearing to determine whether a valid common-law marriage exists. Courts are somewhat reluctant to determine that one intended to be married and didn't get married in the traditional sense. The judge will require proof of intent and reputation- the proof may include tax returns, loan applications, title documents such as deeds, driver’s licenses, bank accounts and witness statements as to how the parties introduced each other. Once the marriage is established, each party will have all the rights that are available to a spouse or widow under state law.

Caution: Conceivably, an unmarried couple that checks into a hotel room in a common-law marriage state as a married couple, may be determined to be married if they may have satisfied the evidentiary requirements for a common-law marriage in that state.

Martin Hoffman is an attorney, legal columnist and author with more than 25 years of experience in the area of family law. He is also the president of thelawyerpages (www.thelawyerpages.com), an Internet legal portal that provides consumers with information about the law and lawyers, provides free legal advice and publishes a national directory of attorneys searchable by specialty and geography. He can be reached at mhoffman@thelawyerpages.com.