Common-law marriage
Common-law marriage (or common law marriage), sometimes called informal marriage or marriage by habit and repute is, historically, a form of interpersonal status in which a man and a woman are legally married. The essential elements of a common law marriage are that a man and woman, both of whom are of legal age to contract a statutory marriage, mutually consent to live together and hold themselves out to the world as husband and wife. As with statutory marriage, a common-law marriage can only be dissolved by a formal divorce decree.
Since the mid-1990's, the term "common-law marriage" has been used in parts of Europe, Israel and Canada to describe various types of domestic partnership between persons of the same sex as well as persons of the opposite sex. Although these interpersonal statuses are often, as in Hungary, called "common-law marriage" they differ from true common-law marriage in that they are not legally recognized as "marriages" but are a parallel interpersonal status, known in most jurisdictions as "domestic partnership" or "registered partnership."
General History
Most marriages in Europe were common law marriages until the Council of Trent convened 1545 - 1563. Thereafter, a marriage was only legal in Roman Catholic countries if it were performed by a priest of the Roman Catholic Church. This was not accepted in the newly Protestant nations of Europe, of course; nor by Protestants who lived in Roman Catholic countries or their colonies in the Americas or elsewhere; nor by Eastern Orthodox Christians, of course.
Nevertheless, all Protestant and Eastern Orthodox countries eventually abolished "marriage by habit and repute" with the sole exception of Scotland - which last considered abolition in 1992, and decided it was not necessary to bother.
The practice persevered in Scotland because the Act of Union of 1707 provided she retained her own legal system separately from the rest of the Kingdom of Great Britain. Thus, Lord Hardwicke's Act, passed the British Parliament in 1753, did not apply to Scotland. It did apply to England and Wales, however(and apparently to Ireland, after the Act of Union, 1801), where marriages were only valid in law if they were performed by a priest of the Church of England - unless the participants in the marriage were Jews or Quakers, both of whom were exempt from that provision.
Lord Hardwicke's Act did not apply to Britain's overseas colonies at that time, so the practice continued in the future United States. Marriages may still be contracted as at common law in ten states and the District of Columbia.
Australia
In Australia the term de facto marriage is used to refer to relationships between men and women who are not married but are effectively living as husband and wife for a period of time. Many laws make provision for such relationships, such as social support laws.
Canada
Canadian federal law does not have "common law marriage", but various federal laws include "common law status," which automatically takes effect once two people (of any gender) have lived together in a romantic relationship for one full year. Partners may be eligible for various government benefits of married spouses based upon their relationship with the individual who is eligible for some type of family based benefit. As family law varies between provinces, there are differences between the provinces regarding the recognition of common law marriage.
In Ontario, a common law province, the Ontario Family Law Act specifically recognizes common law spouses in sec. 29 dealing with spousal support issues; the requirements are living together for three years or having a child in common and having "cohabitated in a relationship of some permanence." However, the part that deals with marital property excludes common law spouses as sec. 2 defines spouses as those who are married together or who entered into a void or voidable marriage in good faith. Thus common law partners do not always evenly divide property in a breakup, and the courts have to look to concepts such as the constructive or resulting trust to divide property in an equitable manner between partners. Another difference that distinguishes common law spouses from married partners is that a common law partner can be compelled to testify against his or her partner in a court of law.
In 1999, after the court case M. v. H., the Supreme Court of Canada decided that same-sex partners would also be included in common law relationships.
Québec, which unlike the other provinces has a Civil Code, has never recognized common-law partnership as a kind of marriage. See about De Facto Marriage in Québec. However, many laws in Québec explicitly apply to common-law partners (called "de facto unions" or conjoints de fait) as they do to spouses. See a List of These Rights and Freedoms As in the other provinces, same-sex partners may become common-law spouses in Québec.
A recent amendment to the Civil Code of Québec recognizes a type of domestic partnership called civil union that is similar to common-law marriage and is likewise available to same-sex partners.
A federal bill passed in 2005 now recognizes statutory marriages between same-sex couples. This follows upon the decisions of several federal courts that have struck down, within the provincial bounds of their jurisdiction, that portion of the federal Marriage Act which limits statutory marriage to opposite-sex couples.
United Kingdom
The term "common law marriage" is frequently used in England and Wales, however such a "marriage" is not recognised in law, and it does not confer any rights or obligations on the parties. See also English law. Genuine (that is, legal) common-law marriage was for practical purposes abolished under the Marriage Act, 1753. (It survives only in a few highly exceptional circumstances, where people who want to marry but are unable to do so any other way can simply declare that they are taking each other as husband and wife in front of witnesses. British civilians interned by the Japanese during World War II who did so were held to be legally married.)
Under Scots law, there were several forms of "irregular marriage" (including marriage by correspondence), but all but one of them was abolished by 1947. Today, Scotland remains the only European jurisdiction never to have abolished the old style common-law marriage or, as it is known in Scots Law, "marriage by habit and repute". As in the American jurisdictions that have preserved it, this type of marriage can be difficult to prove. It is not enough for the couple to have lived together for several years, but they must have been generally regarded as husband and wife, e.g., their friends and neighbours must have known them as "Mr. and Mrs. So-and-so" (or at least they must have held themselves out to their neighbours and friends as Mr. and Mrs. So-an-so). And, as with American common-law marriages, it is a form of lawful marriage, so that nobody can say they are common-law spouses, or husband and wife by habit and repute, if one of them was legally married to somebody else when the relationship began.
It is a testament to the influence of English and American legal thought that 57% of the Scots surveyed, for a study conducted in year 2000, either believed "common-law marriage" was synonymous with "marriage by habit and repute" (which is correct - indeed, many U.S. jurisdictions legally define "common-law marriage," in whole or in part, as "marriage by habit and repute"); or they believed it was synonymous with domestic partnership, which Hungary and some other countries modernly call "common-law marriage" (which is wrong). See Year 2000 Scottish Survey.
Israel
Israeli law recognizes common-law marriage (ידוע בציבור) particularly since an apparatus for civil marriage is absent, and many couples choose to avoid a religious marriage or are barred from it. Israeli law makes provisions for common-law spouses, but is murky as to the period of time that needs to pass before a relationship can be recognized as common-law marriage. Unlike marriage, the spouses need to provide proof of their relationship in order to gain access to the various benefits and rights which accompany a common-law marriage. Since 1994 a series of rulings have extended the meaning of common-law marriage so as to include same-sex couples as well as heterosexual ones.
United States
In Meisher v. Moore, 96 U.S. 76 (1877), the United States Supreme Court ruled that marriages are contracts found in common law, and that common-law marriages shall only be invalidated by state passing a statute expressly forbidding such marriages.
Under the Full Faith and Credit Clause of the U.S. Constitution, marriages legally contracted in all U.S. states and political divisions will be recognized by all other U.S. jurisdictions, so long as the marriage would be recognized under the laws of that jurisdiction if it had been contracted there. States which have abolished common-law marriage still recognize those which were legal before the laws were repealed in their respective states, unless otherwise nullified by law or judicial action.
Common-law marriages are recognized in the following states: Alabama, Colorado, the District of Columbia, Iowa, Kansas, Montana, New Hampshire (posthumously), Oklahoma, Rhode Island, South Carolina, Texas, and Utah. There is no recognition of a "common-law divorce," therefore common-law spouses must petition for divorce.
States which recognized, but have since abolished common-law marriage, include: California (1895), Florida (1968), Georgia (1997), Idaho (1996), Illinois (1905), Indiana (1986), Michigan (1957), Minnesota (1941), Mississippi (1956), Missouri (1921), Nebraska (1923), Nevada (1942), New York (1933), New Jersey (1939), Ohio (1991), Pennsylvania (2005), South Dakota (1959), and Wisconsin (1917) (See Staudenmayer v. Staudenmayer, (Pa. M.D. 1998)). Many states still recognize the common-law marriages which were contracted prior to the states' abolishment of common-law marriage.
The Defense of Marriage Act permits each state or similar political division to recognize or deny any marriage-like relationship between persons of the same sex which has been recognized in another state. Also under the Act, for purposes of federal law a marriage is deemed to be "a legal union of one man and one woman as husband and wife."
The elements for a common-law marriage differ from state to state:
Alabama
The requirements for a common-law marriage are: "(1) capacity; (2) present agreement or mutual consent to enter into the marriage relationship ...; (3) public recognition of the existence of the marriage; and (4) cohabitation or mutual assumption openly of marital duties and obligations." See Creel v. Creel, 763 So. 2d 943 (Ala. 2000), quoting Adams v. Boan, 559 So. 2d 1084, 1086 (Ala. 1990).
Colorado
The elements of a common-law marriage are, if both spouses: (1) are legally free to contract a valid ceremonial marriage, (2) hold themselves out as husband and wife; (3) consent to the marriage; (4) cohabitate; and (5) have the reputation in the community as being married (Colorado Attorney General - FAQ: Common-Law Marriage). See also: Colorado Common Law Marriage Article
District of Columbia
The elements of a common-law marriage are: (1) "an express, mutual, present intent and agreement to be husband and wife"; "followed by" (2) "cohabitation in good faith." See Jackson v. Young, 546 A.2d 1009 (D.C. App. 1988), quoting Johnson v. Young, 372 A.2d 992, 994 (D.C. App. 1977). See good overview at Dickey v. Office of Personnel Management, 419 F.3d 1336 (Fed.Cir., 2005). http://fedcir.gov/opinions/04-3391.pdf
Iowa
"The three elements of a common-law marriage are: (1) the present intent and agreement to be married; (2) continuous cohabitation; and (3) public declaration that the parties are husband and wife. Martin, 681 N.W.2d at 617. The public declaration or holding out to the public is considered to be the acid test of a common-law marriage. In re Marriage of Winegard, 257 N.W.2d 609, 616 (Iowa 1977)." See Snyder-Murphy v. City of Cedar Rapids (Iowa 2004)
Kansas
Under Kansas Statute 23-101 (2002), both parties to a common-law marriage must be 18 years-old. The three requirements which must coexist to establish a common-law marriage in Kansas are: (1) capacity to marry; (2) a present marriage agreement; and (3) a holding out of each other as husband and wife to the public. See In the Matter of the Petition of Lola Pace (Kan. 1999)
Montana
A common-law marriage is established when a couple: "(1) is competent to enter into a marriage, (2) mutually consents and agrees to a common law marriage, and (3) cohabits and is reputed in the community to be husband and wife." See Snetsinger v. Montana University System, 325 Mont. 148, 104 P.3d 445, quoting In re Ober, 314 Mont. 20, 62 P.3d 1114.
New Hampshire
"Persons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for the period of 3 years," are recognized by the state as being legally married after one spouse dies. Thus, the state posthumously recognises common-law marriages ensuring that a surviving spouse inherits without any difficulty. See: NH RSA 457:39 Cohabitation, etc.
Oklahoma
The criteria for a common-law marriage is: (1) "an actual and mutual agreement between the spouses to be husband and wife;" (2) "a permanent relationship;" (3) "an exclusive relationship, proved by cohabitation as man and wife;" and (4) "the parties to the marriage must hold themselves out publicly as husband and wife." See Estate of Stinchcomb v. Stinchcomb, 674 P.2d 26, 28-29 (Okla. 1983).
Rhode Island
The criteria for a common-law marriage is: (1) the parties seriously intended to enter into the husband-wife relationship; (2) the parties’ conduct is of such a character as to lead to a belief in the community that they were married. See DeMelo v. Zompa, 844 A.2d 174, 177 (R.I. 2004) (pdf).
South Carolina
The criteria for a common law marriage is: (1) when two parties have a present intent (usually, but not necessarily, evidenced by a public and unequivocal declaration) to enter into a marriage contract; and (2) "a mutual agreement between the parties to assume toward each other the relation of husband and wife." See Tarnowski v. Lieberman (S.C. Ct. App. 2002). The minimum age for such a marriage is sixteen years-old as established by South Carolina Code of Laws 20-1-100 (2004).
Texas
Common-law marriage is known as an "informal marriage," which can be established either by declaration (registering at the county courthouse without having a ceremony), or by meeting a 3-prong test showing evidence of (1) an agreement to be married; (2) cohabitation in Texas; and (3) representation to others that the parties are married. However, if a couple does not commence a proceeding to prove their relationship was a marriage within two years of the end of the relationship, by law the marriage never existed in the first place, and no agreement to be married was ever present. See Texas Family Code Sec. 2.401.
Utah
For a common-law marriage to be legal and valid, "a court or administrative order must establish that it arises out of a contract between a man and a woman" who: (1) "are of legal age and capable of giving consent"; (2) "are legally capable of entering a solemnized marriage under the provisions of Title 30, Chap. 1 of the Utah Code; (3) "have cohabited"; (4) "mutually assume marital rights, duties, and obligations"; and (5) "who hold themselves out as and have acquired a uniform and general reputation as husband and wife" (See Utah Code Ann. 30-1-4.5 (2004)).
External links
- The Alternatives to Marriage Project is a national US organization for unmarried people
- Demystifying Common Law Marriage
- The National Marriage Project at Rutgers University
- Treatise on Common Law Marriage
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