Common-Law Marriage

Common-law marriage is a legal framework in which a couple may be considered married even if their relationship has not been formally recorded as a civil or religious marriage. This type of marriage is known by different names like sui iuris marriage, informal marriage, non-ceremonial marriage, de facto marriage, or marriage by habit and fame (LlM, 2022).

A “common-law marriage” is one that is validated by both the participants but it is neither formally documented with a state or religious registry, nor is it celebrated in a formal civil or religious rite (Dane, 2014). In effect, the pair is married because they show themselves to others as married and organise their relationship as if they were married .

The term common-law marriage has a broader informal meaning, frequently referring to relationships that are not officially recognised as marriages. It is commonly used figuratively or in the media to refer to cohabiting couples, regardless of legal or religious consequences. This might lead to misunderstandings about the term and the legal rights of unmarried partners.

In simpler terms, marriage without a formal or religious ceremony is known as a common-law marriage. The parties just agree to consider themselves wedded in this type of system. Common-law marriages are becoming increasingly rare, owing to the legal issues of property and succession that accompany them in complicated urban societies.

History of Common-law marriage

Till the Hardwicke’s Act of 1753, common-law marriages were legal in England. The ordinance, however, did not apply to Scotland, and for many years afterward, couples trekked north across the border to avoid the ban. During the Middle Ages, common-law marriages were popular on the European continent, but their legitimacy was abolished in Roman Catholic countries by the Council of Trent (1545-63), which required marriages to be celebrated in the presence of a pastor and have two testimonials. 

British colonial control in Africa did much to destroy the equivalent of common-law weddings there, but independence has resulted in a resurgence of what is known as customary marriage, albeit certain legal procedures, such as registration, exist.

By the second part of the twentieth century, common-law marriages were legal in around one-third of the states, either absolutely or conditionally (The Editors of Encyclopaedia Britannica, 1998).

The only need to enter into matrimonial relations where common-law marriage was recognised was mutual agreement. Such nuptials, however, were subject to the same age and sanguine requirements as traditional marriages.

A formal marriage that had been improperly solemnised (for example, due to an error on the marriage licence) was sometimes pronounced legal as a common-law marriage.

Common-law marriage requirements

1. Must be a couple living in a state that recognises common-law marriages.
2. Live together for a broad period of time. Although many individuals believe that seven or ten years is the required time span, no state specifies a time range for cohabitation (Epstein, 2022).
3. Introduce themselves as a married pair to friends, neighbours, and co-workers, calling each other by the phrase “my husband” or “my wife,” and even using the same last name.
4. Keep shared funds in order, such as leases/mortgages, bank accounts, and credit cards.
5. Maintain mental health.
6. Not be married to another person. 

Places that validates Common-law marriage

(SSA – POMS: GN 00305.075 – State Laws on Validity of Common-Law Non-Ceremonial Marriages – 01/13/2017, 2017)

1. Colorado: If contract is signed on or after September 1, 2006. Common-law spouses must be at least 18 years old and not be barred by any laws.
2. Lowa: Intended to provide assistance for dependents, but not otherwise forbidden.
3. Kansas: To marry, couples must be psychologically capable of making a commitment, be 18 or older, and portray themselves as married in the community.
4. Montana: Marriage is neither forbidden or invalidated by the state’s marriage chapter.
5. New Hampshire: The act refers to “cohabitation” rather than “common-law marriage,” and states that such relationships might be recognised primarily for inheritance reasons. For example, if the couple lived together for three years before the death, this could happen when an estate is being settled after one of the partners dies.
6. Oklahoma: With the exception of unions formed prior to November 1, 1998, common-law marriage has been the source of contention between state law and the courts. However, there is some reality to this type of interaction. Individuals must authenticate that they are living together, are financially dependent, are not biologically related, and are 18 years or older in order for their marriage to be recognised as a qualified common-law marriage (Epstein, 2022b).
7. Rhode Island: Both the man and the woman must intend to marry and act in the manner of a married couple. This means they must live together and show themselves to friends and family as married.
8. South Carolina: Marriage without a valid licence is permitted. There are no laws governing common law marriage.
9. Texas: Both partners in an informal marriage must consent to be married, live together, and disclose their marital status to others.
10. Utah: To be considered a “marriage not solemnised,” both spouses must agree to the marriage and others must recognise them as a married pair.

Many jurisdictions, including those that do not recognise common-law marriage, recognise the status of a “putative spouse.” A putative spouse, unlike someone in a common-law marriage, is not legally married. Instead, a putative spouse thinks in good faith that he or she is married and is granted legal rights as a result of this good faith belief.

A number of states in the United States followed the lead of the Uniform Marriage and Divorce Act (also known as the Model Marriage and Divorce Act) in establishing the notion of a “Putative Spouse” by statute. California, Colorado, Illinois, Louisiana, Minnesota, and Montana have all adopted the notion. In Nebraska, Washington state, and Nevada, case law recognises putative spouse rights. Colorado and Montana are the only two jurisdictions in the united jurisdictions that permit common-law marriage as well as formally recognise presumptive spouse status.

In the United States, putative spouse notions known as “deemed marriages” are also recognised under the Social Security programme.

Other countries like India, Australia, Ireland, Denmark, Israel, Kuwait, Canada do not have this institution but give some limited recognition.

Conclusion

Common-law marriage is a type of marital union that does not require a marriage licence or an officiator. While this type of marriage is not accepted everywhere, there are many regions that do, each with their own set of norms and regulations. The majority of these rules demand a certain amount of time living together as a married couple, two mutually consenting adults, and other conditions. If all of the criteria are met, the couple will have all of the privileges and responsibilities that come with being married.

Common-law marriage recognises that marriage is more than just a legal union of two people, but also a relationship of loving partners, and empowers a government to recognise that connection as such. However, due to the nature of these requirements, many couples have found it difficult to qualify for a common-law marriage.

While some prerequisites, such as religious officiants, may not be required for legal recognition of marriage, it is obvious that simply agreeing to be married is insufficient to enter into the substantial relationship of husband and wife, with all of its accompanying duties.  To emphasise that a relationship is more than just cohabitation, but a union of two people who are fully prepared to take responsibility for each other’s well-being and that of their children, the ceremony and certification (whether civil or religious) has many advantages.

References

1. The Editors of Encyclopaedia Britannica. (1998, July 20). Common-law marriage | law. Encyclopedia Britannica. https://www.britannica.com/topic/common-law-marriage . Accessed on 30 March 2023.
2. Common-law marriage – New World Encyclopedia. (n.d.). https://www.newworldencyclopedia.org/entry/Common-law_marriage . Accessed on 30 March 2023.
3.  Dane, Perry (April 1, 2014). “Natural Law, Equality, and Same-Sex Marriage”. Buffalo Law Review. 62: 291–375. 
4.  Dubler, A. R. (1998). Governing Through Contract: Common Law Marriage in the Nineteenth Century. The Yale Law Journal, 107(6), 1885–1920. https://doi.org/10.2307/797340 . Accessed on 30 March 2023.
5. Epstein, L. (2022). Marriage vs. Common-Law Marriage: What’s the Difference? Investopedia. https://www.investopedia.com/financial-edge/0210/marriage-vs.-common-law-what-it-means-financially.aspx . Accessed on 30 March 2023.
6. Epstein, L. (2022b). Marriage vs. Common-Law Marriage: What’s the Difference? Investopedia. https://www.investopedia.com/financial-edge/0210/marriage-vs.-common-law-what-it-means-financially.aspx . Accessed on 30 March 2023.
7.   Koegel, O. E. (1923). Common Law Marriage. The Family, 4(7), 172–175. https://doi.org/10.1177/104438942300400702 . Accessed on 30 March 2023.
8. LlM, R. a. D. E. J. (2022). What Is the Legal Term for Marriage. Denha & Associates, PLLC. https://denhalaw.com/what-is-the-legal-term-for-marriage/ .  Accessed on 30 March 2023.
9. SSA – POMS: GN 00305.075 – State Laws on Validity of Common-Law Non-Ceremonial Marriages – 01/13/2017. (2017, January 13). https://secure.ssa.gov/apps10/poms.nsf/lnx/0200305075 . Accessed on 30 March 2023.
10. Staff, F. (2020). What is Common Law Marriage? Findlaw. https://www.findlaw.com/family/marriage/common-law-marriage.html . Accessed on 30 March 2023.
11. https://www.ncsl.org/human-services/common-law-marriage-by-state . Accessed on 30 March 2023.

Suggested Reading