What States Allow Common Law Marriages?

The US states that allow common law marriages can vary from one state to another, so it’s time to give SAS readers the latest update. In this piece, we’ll review what a common law marriage is and which US states accept common law marriage. We’ll also go through the list to give you an idea of which states have similar laws and the ones that differ slightly. In particular, we’ll discuss if you are in a common law marriage, what you need to know if you live in a particular US state.

What is a Common Law Marriage?

The definition of a common law marriage involves a couple living together for an unspecified period of time as a married couple, despite not having a marriage licence or officially holding a wedding ceremony or celebration. Some states in the US accept this partnership as legal.

What States Allow Common Law Marriages?

According to the World Population Review¹, the following eight states accept common law marriages. We have listed them alphabetically. They are Colorado, District of Columbia, Iowa, Kansas, Montana, Rhode Island, Texas, and Utah. There are also seven US states that previously accepted common law marriages as legal. They do, however, still accept common law marriages that couples entered into before the state abolished this type of union. These states include Alabama (2017), Georgia (1997), Idaho (1958), Ohio (1991), Pennsylvania (2005), and South Carolina (2019).

However, it is worthwhile noting the following regarding common law marriages:

• No specific time period exists for a couple to live together before a state regards them as being in a common law marriage.
• Those US states that recognize common law marriage accept the partnership regardless of whether the couple is male and female or same-sex.
• In states that recognize common law marriage, couples must legally divorce to dissolve the partnership.
• Wherever a common law marriage is accepted, the state will require proof, such as joint bank accounts, joint rental leases, etc. However, each US state has different requirements regarding this, and you must honour the laws required in that specific state. So, it’s best to consult an attorney to dig deeper in your particular state in this regard.

What States Allow Common Law Marriages & Have Similar or Differing Requirements?

The following six states have four common requirements. The US states involved are Colorado, District of Columbia, Iowa, Kansas, Montana, and Rhode Island. Their common denominators are as follows:

1. All requirements related to the “capacity to marry” are met, which means that both partners are legally eligible to marry one another. They are also typically 18 years of age or older, of sound mind, not currently married to anybody else, and not related to each other.
2. The mutual consent of the two people to join a partnership in a common law marriage is met. This involves the couple’s present intent to be in a common law marriage, not a promise by either or both of the partners involving a future date to legally marry.
3. The two people should be living together as married, perhaps they file joint taxes, or both have the same surname or refer to their partner as their “spouse”.
4. The community sees the partners as a married couple. Common reasons to accept them as a married couple include having the same surname, representing themselves as a married couple, calling each other “husband”, “wife”, or “spouse”, filing joint tax returns, and having joint banking accounts, jointly owning a vehicle or home, being the major beneficiary in a will, insurance policy, etc.

Four US states have unique legal requirements, including the District of Columbia, New Hampshire, Texas, and Utah.

In the District of Columbia, the law does not require a specific period for the couple to have been living together. However, the couple’s intent to be involved in a common law marriage is important, and it is essential that the community regards them as a married couple. (See point 4, above.)

New Hampshire law differs quite a lot. In this state, the common law couple is only considered a married couple for inheritance or probate purposes, and they must have been living together for three years for this to be accepted at all. They also cannot legally claim any marital benefits during their partnership.

What Makes Texas Different When It Comes to a Common Law Marriage?

The legalities in Texas are unique in that this is the only state in the US that offers a “formal registration option” to declare the common law marriage as an “informal marriage”. To do this, the couple has to either file a declaration or prove three elements: They must agree to enter a common law marriage; each person must be at least 18 years old, live in Texas in a marital relationship (with no minimum time requirement), and present themselves to the community as a married couple. Also, if the couple decides to divorce, they have a two-year statute of limitations to prove that the marriage existed. 

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For more on Texas, check out “6 Things a Woman Must Know About Divorce in Texas.”

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What about Utah and Common Law Marriages?

Finally, Utah is relatively restrictive. The state requires that the couple validate their common law marriage; without this validation, the “marriage does not exist”. To do this, they need to file a petition for a judicial order to recognize the relationship with a district court. They also need to prove they are of legal age (18 years old), are not married to anyone else, live together, and treat each other as spouses. This may involve producing documents such as a shared lease, joint tax returns, or drivers’ licenses identifying them as married.

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Consider reading “How to Separate from Your Spouse While Living Together.”

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Established Principles About Common Law Marriages in the United States

In the US, there are a few established principles regarding common law marriage worth noting. 

• According to Article IV, Section 1 of the US Constitution, all US states must recognize valid common law marriages from other states. US states that do not permit common law marriages are required to recognize those created legally elsewhere. However, despite being extremely rare, a state can refuse to recognise a common law marriage if it “violates strong public policy”. This means a state doesn’t have to recognize a common law marriage from another state if it violates that state’s public policy or deeply held legal or moral standards.
• Dissolution of a common law marriage requires divorce, without exception. A couple living in a common-law marriage cannot simply separate; they must legally dissolve their partnership, just like in a traditional marriage. In a divorce, the same rules apply for alimony, child custody, and property division for common law and traditional marriages. Read “What is Alimony? And How Long Does it Last? 

Other Legal Requirements for Common Law Marriage

• The couple must prove they are in a common law marriage. Some US states have specific requirements for this, including the couple living together and their reputation as a “married couple”. Often, the courts examine proof carefully in case of fraud.
• The legal age for partners in a common law marriage is typically 18 years of age, but this does vary by US state (from around 16 to 19 years). Since 2024, four US states have not had a minimum age for marriage. These states include California (although lawmakers have recently introduced legislation to set a minimum age) and Mississippi (where the general age is 21, although exceptions allow minors to marry). In the two states of New Mexico and Oklahoma, no statutory minimum age for marriage exists. This means that, if their parents’ consent and judicial approval, children of any age can marry.
• Neither partner in a common law marriage can be legally married to someone else at the same time.
• Both partners must agree to be in a common-law marriage. Neither of the partners must agree to the partnership “under duress”.
• The partners must both be of “sound mind”, which means that they “understand the nature of marriage”.
• Those states recognizing common law marriage cannot legally distinguish the couple’s gender and should apply the “same standard to same-sex couples”.
• To ensure the common law marriage is not incestuous, the partners cannot be closely related.

Conclusion

We hope that the research undertaken here answers some of your questions regarding “What states allow common law marriages?” It’s difficult to provide a simple overview of a very comprehensive subject and the legalities involved. If you are wondering about the benefits of a common law marriage, or thinking about divorce, we urge you to consult a divorce attorney in your specific state (not to hire the attorney ongoing, but to get educated on the specifics of your story and how the law would view you in your state).  Breaking up smartly, especially if you are in a toxic marriage or relationship, should be investigated so you do it the healthiest and … most strategic way.

NOTES

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

 

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Source
¹ World Population Review, “Common Law Marriage States.”

 

*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.”