What Is Common Law Marriage?

By Teo Spengler - Updated April 16, 2018
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You might think from the name that common-law marriages are common, but they aren't. Perhaps they were in another century, but today few states allow couples to be legally married simply by acting as if they are. It's certainly an inexpensive path to matrimony where it is permitted: no marriage license, no civil or religious ceremony and no expensive bachelor's party or bridal dress.

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Common-law marriage is a type of union recognized in a just minority of the states. It is created by a couple's actions in living together and holding themselves out as married without the benefit of any official ceremony.

What Are the Requirements for a Common-Law Marriage?

Now, don't panic all you single-status tax filers. Just living together does not a common-law marriage make. This practice dates back to the 1800s, when it may have been harder to find a municipal officer or a church deacon to officially unite a couple. Today it is still alive and kicking in only a handful of states, whose valid common-law marriages are often recognized in other states.

In order to claim a common-law marriage, a couple must live together as "man and wife" for a certain period of time. But the legal requirements for creating a common-law marriage go far beyond living together. A couple must live together for a number of years as set out in the law before a relationship counts as a legal marriage in the states that allow it. Both persons must be of legal age to marry, be of sound mind and not married to someone else. Both common-law spouses must intend their relationship to be a common-law marriage and hold themselves out to others as being a married couple. Evidence of the last requirement includes referring to each other as husband and wife, or spouse; taking the same last name; and blending finances like bank accounts and credit cards. Perhaps the best evidence is a written agreement setting out the common-law marriage, signed by the parties and notarized.

What Are the Common-Law Marriage Requirements by State?

Many states once allowed common-law marriages, but have changed their laws, now only recognizing common-law marriages that occurred in those states before the ban. Jurisdictions that still fully recognize common-law marriages are Colorado, District of Columbia, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas and Utah. Each of these states has its own rules governing this type of union.

In Texas, for example, common-law marriage is called informal marriage. Three elements are required to form a legal union: the couple must have agreed to be married; held themselves out as married; and lived together in the state as man and wife. The state's Bureau of Vital Statistics provides a form, available at the county clerk's office, which a couple fills out and files to make a record their marriage.

In California, common-law marriages are not permitted. All marriages must be obtained through the marriage license procedure. However, California law provides that if a marriage is valid pursuant to the laws of the state where it occurred, California will recognize the marriage as valid. This is also true of New York and many other states.

Can You Get a Common-Law Divorce?

In most states a common-law marriage must be ended by formal divorce proceedings. But a few states permit a common-law couple to take matters into their own hands if there are no children or financial issues. For example, in Texas, a common-law couple can terminate their union by filing for a formal divorce, the mandated practice if the couple has children or if property and debts remain undivided. However, the state also permits a simple breakup if the couple has no kids together or joint assets or debts, and they did not file a form recording their marriage with the state. After this type of separation, either partner in a common-law marriage has two years to file an action proving that the marriage did exist.

About the Author

Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.

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