• Common Law Marriage

    Common Law MarriageA common-law marriage is a marriage that is recognized as valid even if no official marriage ceremony is performed. Some states recognize common law marriages as legally binding while other jurisdictions do not. Common-law marriages are not licensed by the government and do not require a ceremony with witnesses in order to be valid. In jurisdictions that do recognize common-law marriages, mere cohabitation alone by a man and woman is not sufficient to constitute a common-law marriage. The parties must consent to the marriage, be of legal age, and be of sound mind. If a couple is in a valid common law marriage, the marriage may only be dissolved through a legal proceeding.

    Establishing a common-law marriage can be very important because a couple that does so is often entitled to the same rights as a couple that is married in a traditional ceremony. These rights can include social security, inheritance, wrongful death survivor benefits, and parental rights. However, because of this, someone who claims to be in or have had a common-law marriage may also open herself up to litigation. For example, a woman's common-law husband is killed in a car accident. The accident was another driver's fault and she decides to file a wrongful death suit. She cannot bring the suit unless she had a valid common-law marriage. Therefore, the issue of whether she was in a valid common-law marriage will be litigated and opposing counsel will argue that she was not. Another scenario that could occur might be if the husband died of natural causes without a will. Again, the wife could find herself involved in litigation against the husband's other relatives over inheriting property if it was never established that there was a common-law marriage. These are the kind of issues that are present in common-law marriage litigation. Because of scenarios like the aforementioned, entering a traditional marriage with a formal ceremony can be more legally prudent.

    Common law marriage is recognized in only 11 states in the United States. It is recognized in Alabama, Colorado, Georgia (if it was created before 1/1/97), Idaho, Iowa, Kansas, Montana, New Hampshire, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, Utah, and Washington, D.C. Courts, even courts in states where common law marriage is recognized, disfavor common law marriage. When parties claim common law marriage, the court will closely scrutinize it in order to rule out the possibility of perjury or fraud. The burden of proving that a common law marriage exists rests with the person asserting its existence. Depending on the state, common law marriage can be established by either clear and convincing evidence or a preponderance of the evidence.

    A couple must do several things in order to have a valid common law marriage. The couple must live together for a significant period of time, must hold themselves out as a married couple, and must intend to be a married couple. Couples who present themselves as married may do so by using the same last name, filing a joint tax return, or referring to one another as husband and wife. Common-law marriages can be difficult to prove in a legal manner. Usually, whether a couple has lived together is the easiest issue to resolve. However, whether a couple agreed to be married or presented themselves as married can be more difficult to determine. In disputed cases, proof may involve testimony by family and friends, examination of joint tax returns, or examination of credit cards. These are just some of the possible factors that can be looked at to determine if a couple can prove a common-law marriage. The more specific requirements for establishing a common law marriage differ from state to state. Both the common law and statutory elements of common-law marriage must occur at the same time.

    1. Capacity to enter into a marriage
    2. Man and woman must be at least 16 years old with parental consent
    3. Present an agreement or consent to be husband and wife
    4. Public recognition of the existence of the marriage and
    5. Consummation

    1. Man and woman holding themselves out as husband and wife
    2. Consenting to the marriage
    3. Living together or cohabitation and
    4. The community they live in believes them to be married
    Colorado no longer recognizes common law marriage entered into by minors.

    Washington D.C.
    1. Man and woman are legally free to marry
    2. They intend to establish a marriage and
    3. The community they live in believes them to be married

    1. Present intent and agreement to be married
    2. Continuous cohabitation and
    3. Publically declaring that they are husband and wife

    1. Man and woman must be at least 18 years old
    2. They both must have the capacity to marry
    3. A marriage agreement and
    4. Publically holding themselves out as husband and wife

    1. Man and woman must be competent to enter into a marriage
    2. They consent and agree to the common law marriage and
    3. They live together and the community they live in believes them to be married

    New Hampshire
    1. Man and woman live together or cohabitate
    2. Hold themselves out as husband and wife and
    3. For a period of 3 years

    1. Actual and mutual agreement between the man and woman
    2. Permanent relationship
    3. Exclusive relationship, proven by living together and
    4. Publically holding themselves out as husband and wife

    Rhode Island
    1. Man and woman intended to enter into husband-wife relationship and
    2. The conduct of the parties leads the community that they live in to believe they are married

    South Carolina
    1. Present intent to enter into a marriage contract and
    2. Mutual agreement between the parties to have a husband and wife relationship

    Common law marriage can be established either by declaration or by the following 3-pronged test showing:

    1. Agreement between the man and woman to be married
    2. Living together or cohabitation and
    3. Holding themselves out to others as married

    In order to establish a common law marriage (where the relationship has ended) the parties must assert the existence of the relationship within two years of it ending.

    1. Man and woman are of legal age and capable of giving consent
    2. Are competent
    3. Have lived together or cohabitated
    4. Assume marital rights, duties and obligations and
    5. Holding themselves out in the community which believes them to be husband and wife

    Even though many states do not recognize common-law marriage between the residents of their state, they will recognize a common law marriage established in a state that recognizes common law marriage if the marriage is valid according to the laws of that state. The common law marriage will be recognized because of the full faith and credit doctrine. For example, the state of New York will recognize a common-law marriage as valid if it was entered into in another state like Kansas, which does recognize common-law marriage. People who marry through common law still must ask the appropriate court for a divorce. Although the way they entered marriage may be different from most people, the process of dissolving a marriage is the same. Also, a valid common-law marriage will be treated like any other valid marriage for tax purposes by the Internal Revenue Service.
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