Common Law Marriage: What You Must Know

I never realized I had been “married” twice to the same man. (Heaven help me!) As I was asked to research common law marriage for SAS for Women, which I have done in great detail below, I came across a fact that common law marriage involves a couple living together, which my Ex and I did for seven years before we legally married. Wikipedia refers to this a “legal, non- ceremonial union” and as long as you cohabit in a state that accepts this type of marriage (I explain which ones don’t below), you, my friend, are “married.”

What is Common Law Marriage?

Those US states that recognize common law marriage define common law marriage as a couple living together as if they were married, despite not having obtained a marriage license or a formal wedding ceremony. In the various US states that have legalized this type of marriage, common law marriage involves the following:

• The couple has been cohabiting for a reasonable period, although there is no specific period of time that they must have lived together. In Canada, Northern Ireland, and In Australia, a couple must have lived together for two years for their relationship to be considered a common law marriage.
• The two consider themselves a married couple, and others see them that way. Some couples even use the same surname.
• A mutual agreement that you are not just a couple, but are married, too, although you don’t have a marriage license.

I would imagine these “rules” were put in place because many couples don’t want to marry early in their relationships, or ever. They prefer to “try marriage out” to see whether they are compatible. However, when a child enters the equation, this can change things.

Which US States Accept Common Law Marriage?

Only a handful of states currently recognize common law marriages. Currently, these states include, in alphabetical order, Alabama, Colorado, District of Columbia, Georgia, Idaho, Iowa, Kansas, Montana, New Hampshire (only for inheritance purposes), Ohio, Oklahoma (if the common law marriage started before 1 November 1988), Pennsylvania, Rhode Island, South Carolina, Texas, and Utah.

Many states, such as Washington and Florida, which previously recognized common law marriage, have abolished it, though they still recognize common law marriages that were established before their laws changed. Interestingly, people who previously lived in any of those states that recognize common law marriages are still considered “married” if they move across certain state lines (although 13 states that do not recognize a common law union are prepared to accept it as one if you can prove it). This means that you can move to one of these states if your union is honored in the state where you currently live. It won’t change the status quo.

Those 13 particular US states are Arkansas, Connecticut, Delaware, Louisiana, Maryland, North Carolina, Oregon, Tennessee, Vermont, Virginia, Washington, West Virginia, and Wyoming.

However, in the US, legally proving that you are in a common-law marriage isn’t easy. Your proof would include showing joint leases and bank accounts.

There’s also another very interesting point: if you are in a common law marriage, you can’t just leave the person when you wish to dissolve the marriage; you have to have a formal divorce. So if you are thinking about divorce, you might consult this divorce checklist so you make sure you are taking care of yourself.

Advantages of a Common Law Marriage in the US

Here are some pros when it comes to a common law marriage:

• You do have some of the same financial benefits as a person in a legal marriage, including the right to file taxes jointly, Social Security benefits, spousal support, inheritance and property division rights on separation, and insurance coverage on some plans.
• You have legal recognition as a spouse in those US states that accept common law marriage.
• For many couples, forgoing the financial cost of a marriage license and wedding ceremony is a major advantage.

Disadvantages of a Common Law Marriage in the US

Legitimate marriage remains the status quo, and as a result, there are far more disadvantages to being in a common law marriage than there are advantages. Let’s take a look at these:

• Unless you have a medical directive that gives your common law partner the right to intervene, they may not be able to make medical decisions for you. If you live in a state that recognizes common law marriage, you have the same rights as a legally married couple. However, you need proof that you are in a common-law marriage.
• Being in a common law marriage will not necessarily allow you health insurance benefits. If you live in a state recognizing common law marriage, you should ideally be treated as a legally married couple, so you could be added to your partner’s health plan. But red tape often requires proof of the marriage. In a state that doesn’t recognize common law marriage, it’s unlikely you will be able to benefit from your partner’s health insurance.
• Child custody can be difficult for some common-law partners, especially if they decide to divorce. Like in a legal marriage, custody depends on which parent can provide the most stable environment. The parent requesting custody must show they can financially support the child and minimize disruption. If both can do this, they may agree on custody. Otherwise, the court will decide.

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Consider reading “Best Advice on Getting Full Child Custody”.

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• In many common law marriages, there is little paperwork discussing the terms of the partnership. When this relationship breaks down, these points are even more difficult to prove.

The bottom line? It’s much more difficult to end a common law marriage than it is a legal one.

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If you need to get some space but can’t yet physically separate, check out  “How to Separate from Your Spouse While Living Together.”

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Common Law Marriage Example #1

Here is the first of two very different examples of common law marriages. I think it shows how this type of relationship can affect couples in different ways.

I’ll start with Felicity and John from Kansas, who seemed like the perfect couple. Felicity had a son out of wedlock, Daniel, whom John ‘adopted’ when the couple started living together. He paid for everything Daniel could wish for, from food and a roof over his head to education and clothing. He loved Daniel as his own, and still does, despite never legally adopting him.

When Daniel was six, Felicity and John had a daughter, Gail. She also bears Felicity’s surname, as the couple never legally married. John was a successful entrepreneur, and they lived a luxurious life with two holiday homes and frequent overseas trips.

John’s success continued, while Felicity enjoyed being the Stay-at-Home Mom. Then she found out he’d bought a new home for his lover, a block away from where they lived. This ended the relationship, although John continued to support Felicity and the two kids. When his lover became pregnant, John married her. They now have a four-year-old son who carries his surname.

John is still close with his two children from his common-law marriage. He has bought them homes near where he now lives with his family in Connecticut. I find it interesting that he married so late in life and chose a legal marriage the second time.

Is John a bigamist? Married to two people? It depends on whom you speak to. Legally, probably not.

Common Law Marriage Example #2

Another fascinating common law marriage tale is the story of Debra and Mike, who live in San Diego. She met him when she immigrated from Scotland and rented a cottage on his property. He was much older than she was – 14 years her senior, and a dean at one of the town’s universities. She was an aspiring journalist. They married and had a daughter, Sue, who is now in her twenties, studying fashion design in London.

It was an unhappy marriage that didn’t last because of the disparity in their lifestyles. Mike is now married to a professor of English. Debra has been living with her partner, Josh, in Denver for the past 18 years. Why didn’t she marry again? “I suffered too much during my divorce,” she says. “I prefer a more open relationship. It makes me feel freer. I’m more independent woman this way.”

Conclusion

Is common law marriage the answer for you? You’ll want to weigh the pros and cons and keep your eyes open. 

Ask yourself this: if things start to go south, does your relationship protect you or leave you vulnerable? Ultimately, your location plays a role in this decision, as not all states recognize common law marriage.

NOTES

Sharon Preston is a writer and editor. She has edited numerous lifestyle magazines and ghostwritten several books. She lives in a cottage in Johannesburg, South Africa with her two cats. You can connect with Sharon here: sharpreston1234@gmail.com

 

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Since 2012, smart women around the world have chosen SAS for Women to guide them through the emotional, financial, and practical experience of breaking up and reinventing. 

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*We support same-sex marriages. For the sake of simplicity in this article, however, we refer to your spouse as your “husband” or a “he.”