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Common law marriage in the USA

October 19, 2022

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This article is written by Satyaki Deb, an LL.M. (IP) candidate from the Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur. This article provides an exhaustive overview of common law marriage in the USA and its related concepts from an analytical viewpoint.

It has been published by Rachit Garg.

Table of Contents

Introduction

The laws regulating marriages in the USA have undergone a lot of amendments over the last 70-80 years or more. There is no central or federal law governing marriages in the USA. Rather, the 50 states have their own laws governing the domain of marriage. There are generally two types of marriages that are recognised in the USA and which are statutory marriages and common law marriages. In other words, in the United States of America, parties enter into civil marriages either in a ceremonial manner by conforming to the state’s statutory requirements of marriage or they enter into matrimony non-ceremoniously by fulfilling all the requirements of common law marriage. In simple words, common law marriage is basically a legal institution for the cohabitation of couples and is often informally referred to as non-ceremonial marriage. In this form of marriage, parties agree to be husband and wife in the present and behave so publicly in front of family and friends without undergoing any marriage ceremony or obtaining a marriage licence.

What is a common law marriage

Before delving into the concept of common law marriage, let us first comprehend briefly the term ‘common law’. In simple words, a common law system is a form of law which is mainly based on unwritten and judge-made law. Mainly, the ex-colonies of the UK have this common law system of law and that includes the USA. So, this common law marriage system came to the USA from the common law marriage system prevalent in Europe before the dawn of Christianity when marriage was a private contract between families without the intervention of any church officials or state officials.

According to Black’s Law Dictionary, common law marriage is a type of marriage or relationship which is not solemnised in a ceremonious manner but must require the following: “positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, cohabitation sufficient to warrant a fulfilment of necessary relationship of man and wife, and an assumption of marital duties and obligations”. In other words, common law marriage is the type of marriage where partners mutually agree to enter into a permanent and exclusive marital relation and cohabit together as man and wife to the world while fulfilling their marital duties and obligations.

Illustration A: There are two parties X and Y. They decide to be husband and wife from today itself, cohabit together and behave publicly as couples. It can be a valid common-law marriage.

Illustration B: There are two parties X and Y. They decide to be husband and wife in future but start cohabiting together from today itself. It is not a valid common law marriage as future agreement to marry does not constitute common law marriage.

Illustration C: There are two parties X and Y. They decide to be husband and wife from today itself and start cohabitating together from today itself as couples but they decide to keep their marriage a secret from society. It is not a valid common law marriage as there is no such thing as a clandestine common law marriage. Publicly portraying husband and wife is perhaps the most important requirement of a valid common law marriage.

Illustration D: There are two parties X and Y. X is 21 years old and Y is 17 years old. They decide to be husband and wife from today itself and start cohabiting together as couples. Also, they publicly portray themselves as married couples. This is not a valid common law marriage as the parties are not adults. In other words, the parties must have the capacity to contract.

Brief history of common law marriages in the USA

According to various legal scholars like Cynthia Grant Bowman, the concept of common law marriages in the USA can be traced back to the informal marriages of Europe before the Reformation. Gradually, the concept of common law marriage was adopted in the US colonies with the advent of English common law but the same varied from colony to colony. Since in some American colonies informal cohabitation existed, they started recognising common law marriages whereas the remaining colonies required compliance with certain legal formalities. Various colonies like New York, Georgia, Pennsylvania, South Carolina, Rhode Islands and New Jersey chose to recognise informal marriages whereas other colonies like Virginia, Vermont, North Carolina, Delaware, Maryland and Connecticut decided to enact laws that required formal ceremonies, licences or registrations, designated officiants for valid marriages.

Now you may wonder as to why some states in the USA accepted the informal system or the common law system of marriages whereas some states rejected the same. The answer to this question can be traced back to a time when years and years ago transportation was extremely underdeveloped, to say the least. The colonies with frontier conditions, sporadic settlements, long distances from marriage registries, dearth of legal officiants help us to explain why some states chose to accept the system of informal marriages or common law marriages.

The obvious question that comes after this is what did the US Courts have to say regarding common law marriages? Most of the states initially recognised common law marriage and in this line, the judgement of Fenton v. Reed (N.Y. 1908) is significant where the Supreme Court of New York recognised the rights of a widow who was seeking pension from an organisation where her alleged husband was a member. The Hon’ble Court inter alia noted – “A marriage made per verba de praesenti amounts to an actual marriage and is as valid as a marriage in facie ecclesiae (in the face of or presence of the church).” Thus, it was held that a marriage can be proven based on the cohabitation of the parties, reputation as husband and wife, present acknowledgement of the parties and other related circumstances.

While the majority of the states decided to accept common law marriages, some minority jurisdictions decided to rely their laws on the lines of Inhabitants of Milford v. Inhabitants of Worcester (1810) where common law marriage failed to get recognised.

To solve this apparent confusion where some states were recognising common law marriages and some states were passing contrary laws, the Supreme Court of the USA in the case of Meister v. Moore (1877) held that the right to marriage is a common law right and the states can take that right away by enacting statutes where common law marriage is expressly stated to be null and void. In other words, even if the states pass an Act requiring formal registration, licences etc. for a valid marriage unless that law has express provisions making common law marriages void, the provisions requiring formal ceremonial marriages will be considered to be merely directory and not mandatory in nature.

Reasons for the decline of common law marriages in the USA

Even though a majority of the states were in favour of common law marriages in the USA initially, when the factors that led to the wide acceptance of common law marriages got mitigated, the decline of common law marriages in the USA started. The factors that led to the decline of common law marriages in the USA are stated as follows:

Rapid industrialization and urbanisation solved the problem of transport and aided in access to civil authorities.
There was an increase in the wealth of private citizens and to reduce the chances of false claims of inheritance and increase proper and due inheritance to rightful and legitimate heirs, it was pertinent for common law marriage to get shunned.
Protection of the institution of marriage became a necessity.
There was also the factor of racism, eugenics and class bias.
There were concerns about administrative and judicial efficiency.

Requirements of a common law marriage in the USA

It is true that the laws of marriage in the USA have evolved over the years and that individual states have their own laws regarding marriages, but in essence and historically speaking, the requirements of a valid common law marriage can be enumerated as follows:

Capacity to enter into a marital contract.
Present agreement to be married.
Continuous cohabitation for which no specific time is prescribed.
Parties must portray themselves as husband and wife to society as married couples.

Each of these requirements is explained as follows

Capacity to enter into a marital contract

Since marriage is a civil contract, it is important that the parties are competent enough to enter into the union of marriage. In other words, the parties need to possess a sound mind and be adults which will qualify them as parties having the capacity to contract. Also, it is pertinent to note that the parties must not be in a formal/informal marital contract with any third party at that time.

Present agreement to marry

It is very crucial for a valid common law marriage for the parties to have a present and not a future agreement to marry. The present agreement to marry is also often referred to as an agreement per verba de praesenti. Also, there must be intent to assume the relationship of husband and wife based on the present agreement to marry. In other words, if the agreement to become husband and wife is entered into for purposes other than to assume such a relationship or pertains to a future marriage, then it does not constitute a valid common law marriage.

Continuous cohabitation

Continuous cohabitation is one of the primary requirements of a valid common law marriage but contrary to the common misconception, no specific time of cohabitation is prescribed that is necessary to constitute a valid common law marriage. But exceptions happen in some states like New Hampshire, where a minimum of three years of cohabitation is required before the death of one party to constitute a valid common law marriage. Also, in some cases, the cohabitation may completely be in the past as in the case of In re Estate of Benjamin 311 N.E. 2d 495 (N.Y.1974) where one woman (widow) was contesting the estate of a decedent who left her and married someone else.

Holding out

It is perhaps the most important of all the criteria as to how the parties are portraying themselves in front of the community. Unless the parties treat each other as husband and wife in front of family, friends and society and have that reputation as married couples, their common law marriage will not be valid in the eyes of the law. In other words, it can be safely inferred and stated that there is no such thing as a secret or clandestine common law marriage. Even in the event where the parties undergo a contract/agreement of marriage but decide to keep their marriage a secret, it is not a valid common law marriage. Thus, where one party alleges the existence of a common law marriage, that party must substantiate such claim with witnesses corroborating the parties as couples, produce joint tax returns, hospital and medical records etc. Thus, public declaration or holding out as husband and wife by the parties must be general and substantial in nature and is often referred to as the ‘acid test’ for the determination of the validity of a common law marriage.

Burden of proof and how to prove a common law marriage in the USA

The burden of proof lies on the party asserting to have a valid common law marriage and in order to prove common law marriage in the USA, the standard of proof should be such that the basic requirements of a common law marriage mentioned above are fulfilled. Generally speaking, the following documentation can help parties prove a valid common law marriage:

Bank statements of joint bank account(s).
Property papers/deeds of jointly owned real estate, vehicles, etc.
Insurance policies where one party is mentioned as the beneficiary of the other party.
If there are any children, birth certificates or school records of such wards where both the parties have been mentioned as father and mother of such children.
Any employment papers/records where one party is listed as the spouse of the other party.
Any financial statements showcasing joint financial obligations of the parties like credit card bills, mortgage payments, loan documents etc.
An affidavit wherein the nature of the relationship of the parties and when and where the parties underwent their common law marriage is mentioned.
Affidavits from family members, neighbours and friends wherein they mention they viewed the parties as married couples, state their marital residence etc.

Legal analysis of common law marriages in the USA

What is a common law spouse entitled to do

There are loads of common misconceptions regarding the rights of a common law spouse. Before clearing the same, a basic question needs to be answered that is – are you a valid common law spouse? What this question means here is whether the law recognises you as a common law spouse. If you fulfil all the basic requirements of a common law marriage, then law of the land will recognise your common law marriage as a valid one and then you are a valid common law spouse, along with your partner. Otherwise, there is no such thing as a common law spouse and then logically, one gets no spousal rights.

If you are a valid or a legally recognised common law spouse, then just like a partner of a formally registered ceremonial marriage, you enjoy the same spousal privileges including:

Claiming a share of the family home,
Maintenance rights,
Child support,
Parental rights,
Inheritance rights,
Tax benefits, etc

Also, if you are wondering what happens if you undergo a valid common law marriage in a state that recognises common law marriage and later shift to a state that does not recognise common law marriage, then there is a Full Faith and Credit Clause in the US Constitution which will save a common law spouse. So, if you are a couple who had common law marriage in a state that recognises common law marriage, throughout the USA, your common law marriage will be valid and legally enforceable.

What rights does a common law spouse have when their partner dies

If your common law marriage is a valid one that is a legally recognised one because you fulfil all the basic requirements of a common law marriage then, you enjoy the same rights to automatic inheritance of your partner’s properties after his / her death just like a spouse of a formal ceremonial marriage. But first, you will need to prove in the courts of law that you have a valid common law marriage and one can do that by the following simple steps:

Step 1: Apply for a declaration of valid common law marriage to a court of competent jurisdiction.

Step 2: Submit your documentary proofs that depict that you and your alleged spouse indeed acted and functioned as spouses. For this you may submit joint bank statements, joint tax returns, joint mortgage documents etc.

Step 3: To prove that your common law marriage was not a secret one, affidavits from family and friends need to be submitted which will confirm that you and your alleged spouse are publicly held out as husband and wife.

In this regard, it may be mentioned that a spouse of a formally registered marriage can easily prove his / her inheritance rights compared to a valid common law spouse. So, it is always advisable to register your marriage in front of competent civil authorities.

Now, do you have any rights after your partner dies and your common law marriage is not a valid one because you fail to fulfil the basic requirements of a common law marriage? In that case, you can only get inheritance rights to your partner’s properties if your partner had done proper estate planning with a well-drafted will or trust. Otherwise, as a legally unmarried partner, your partner’s properties will be governed by the local intestacy laws in the absence of a will or trust and in that case, his / her blood relatives will get the properties in most cases.

How to annul or get a divorce in a common law marriage

A common law marriage, as stated before, is often referred to as informal or non-ceremonial marriage. So, it may logically appear that a common law marriage may be informally broken too by mutual agreement. But it should be duly noted that a valid common law marriage cannot be broken or dissolved informally. Just like a formally registered marriage needs to be dissolved or annulled by a decree of a court of competent jurisdiction, similarly, a valid common law marriage needs to be dissolved by a decree of a court of law of competent jurisdiction. Thus, where the parties were fulfilling all the basic requirements of a common law marriage but later on, one party or both parties started posing as singles in public, their common law marriage would not get annulled. In other words, a dissolution decree from a competent court of law is necessary to dissolve both common law marriage and a formally registered ceremonial marriage.

Illustration I: There are two common law spouses A and B who have fulfilled all the basic requirements of a common law marriage. They were happy couples but later on due to some issues, A decides to leave B and marry C in a formal and ceremonial marriage. A and B first get a decree of divorce from a competent court of law and only then can A marry C in any manner.

Illustration II: There are two common law spouses A and B who have fulfilled all the basic requirements of a common law marriage. They were happy couples staying together but one day both A and B mutually decide that they will part ways because of boredom. A and B believe that since their common law marriage is an informal one which started with their mutual agreement to be husband and wife, this informal form of marriage can be broken by mutual agreement too. But they are wrong. A common law marriage can only be dissolved by a decree of divorce by a competent court.

Illustration III: There are two parties A and B who stay as common law spouses believing that they have fulfilled all the basic requirements of common law marriage. But in reality, they have not fulfilled all the basic requirements of a common law marriage due to ignorance of the law. One day, A decides to leave B and marry C without giving a formal divorce to B. A can do so because the common law marriage of A and B was not a valid one, rendering A single.

What happens after the annulment of a common law marriage

If a common law marriage gets annulled by a decree of the court, then just like any other annulment of a formally registered ceremonial marriage, the spouses will have to bear the rights and liabilities in a similar manner. In other words, after the annulment of a common law marriage and after the annulment of a formally registered ceremonial marriage, there are no differences in the quantum of rights and liabilities entrusted on the parties. Alimony rights and duties, parental rights and duties etc. are all present with a common law spouse at par with a formally married spouse after divorce.

Rights of common law spouse in states that do not recognise common law marriages

It may so happen that the parties have undergone a valid common law marriage in a state that recognises common law marriage but later shifted to a state that does not recognise common law marriage. In that case, the Full Faith and Credit Clause in the US Constitution will come into action. According to this Clause, one state should recognise the “public Acts, records and judicial proceedings” of another state. So, if you are a couple who had a common law marriage in a state that recognises this practice and satiates all the basic requirements of a common law marriage throughout the USA, your common law marriage will be valid and legally enforceable irrespective of the state’s own laws pertaining to common law marriage. In other words, a common law spouse who fulfils the basic requirements of a common law marriage, enjoys his / her rights even in states that do not recognise common law marriage.

Civil union vis-a-vis rights of same-sex couples with respect to common law marriages in the USA

Before same-sex marriage was recognised in the US, it was imperative to give same-sex couples the same legal protection as given to other couples. So, the concept of civil unions was started in some states for the same-sex couples for that purpose. In other words, the civil union was a marriage-like legal status given to same-sex couples in some states. Later, the Hon’ble US Supreme Court in the landmark judgement of Obergefell v. Hodges (2015) legalized same-sex marriage throughout the territory of the United States. The marital rights of same sex couples got legalized based on the ‘due process’ clause and ‘equal protection’ clause of the Fourteenth Amendment of the US Constitution. In other words, same-sex couples were placed on an equal legal footing with different-sex couples. Now, coming to the concept of common law marriages, it can be inferred as a corollary that just like different-sex couples have the right to a common law marriage in the states recognising them, same-sex couples to have the right to undergo common law marriages in the states that recognise it. In other words, when it comes to common law marriages, same-sex couples and different-sex couples are identical in the eyes of the US laws.

Advantages of a common law marriage in the USA

The advantages of common law marriage in the USA can be stated as follows:

An initially less financial and legal entanglement

A common law marriage gets built on trust and cohabitation in the initial days without worries of financial and legal obligations in contrast with formally married couples. For formally married couples, from day zero of marriage, there can be financial, and legal burdens and entanglements. On the contrary, a common-law couple gets more scope of freedom to build their relationships without worrying about financial and legal matters from the first day of cohabitation. But later, of course, a valid common-law spouse stands on an equal footing with a formally married spouse with respect to financial and legal obligations.

Illustration: There are two parties X and Y who have undergone a formal ceremonial marriage and there are further two parties A and B who have decided to become husband and wife in the informal and non-ceremonial form that is via common law marriage. Now, what happened was Y, the newlywed wife of X, decides to divorce X within a week of their marriage. X will be under the financial obligation to give alimony to Y, irrespective of the period of married life spent by X and Y. On the contrary, if after one month, A decides to leave B, their separation can happen more smoothly because the joint documents which can prove their common law marriage etc. take a longer time to be ready. So, in the case of formal marriages from day zero, there is the scope for legal and financial hassles, unlike common law marriages which gives the parties the option to leave easily in the initial days.

Fewer requirements to start common law marriage with

A formal marriage must strictly conform to the statutes governing formal marriages from the very beginning. On the contrary, a common law marriage has very few requirements, to begin with. It can start in a state recognizing common law marriage by merely moving in together to begin without any ceremonies or registration or licences. Later on, with time, the parties can develop a present agreement to act as husband and wife and publicly present themselves so. In other words, the process is very simple, to begin with. Since marriages are very important life decisions, if at least the beginning steps can be kept simple, it becomes appealing to a lot of people.

Easier to leave

Since, a common law marriage begins with mere cohabitation as couples, till the common law marriage becomes legally valid with the fulfilment of the basic requirements of a common law marriage, a dissolution decree is not necessary. In other words, if we look at the basic requirements of a common law marriage we can see that it consists of publicly holding out as married couples as one of the prime requirements. Now, since this requirement takes time to establish in the eyes of the public, till it happens the parties find it easier to leave each other with no public pressure or stigma. This is because a formal marriage binds the parties from day zero in the eyes of the law. On the contrary, a common law marriage first needs to fulfil all the basic requirements in order to become legally enforceable and since that takes time, before that the parties are simply free to leave and explore. Thus, initially, till the time a common law marriage becomes valid in the eyes of the law, the parties enjoy more freedom. But it is pertinent to note in this regard, that after a common law marriage becomes valid and legally enforceable in the eyes of the law, a dissolution decree from a competent court is necessary to dissolve it just like it is necessary for a formal ceremonial marriage.

Granting legal statuses to parties, thereby reducing vices

Common law marriages do not require any public ceremonies, public vows for the couples etc. On the contrary, common law marriages focus on the relationship of the parties rather than on ceremonies and formalities. The core focus stays on the relationship of the parties and that gets legal recognition too at par with formal marriages. In other words, parties get to focus more on themselves rather than on ceremonies and formalities and this in turn reduces vices like illegitimacy, promiscuity etc. because the parties know that what matters most is their relationship with each other and they are not losing out on any legal benefits of a formal marriage at the same time.

Protection of the rights of women, children, the poor and minorities

What a common law marriage does in essence is that it puts an informal and non-ceremonial marriage on an equal footing with a formal, ceremonial, registered and licensed marriage. This acts as a boon for it protects the rights of women, children, the poor and minorities. Abrogation of common law marriage would affect these marginalised and vulnerable people the most.

Disadvantages of a common law marriage in the USA

The disadvantages of common law marriage in the USA can be stated as follows:

Fraudulent claims

Since common law marriage is an informal type of marriage with no registration before civil authorities, there lies the menace of fraudulent claims. Especially rich parties or celebrities face this issue where their heirs face loads of hassles just because a fraudster comes and claims to be the common law spouse.

High risk of relationship ending

Since common law marriage is an informal and flexible form of marriage, parties tend to become less adjustable to each other very easily and thus there is a high risk of dissolution when it comes to common law marriages compared to formal marriages.

Limited rights

In the initial days of common law marriage, parties have very limited rights against each other. The flexibility of common law marriage in the initial days comes at the dear cost of limited rights. What we mean here is that if we look at the basic requirements of a common law marriage and the joint documents necessary to prove common law marriage, it will be clear that it takes time to fulfil those requirements and to get the joint documents ready. Until then, the parties will find it very difficult to prove their common law marriage. So, in the initial days, until you have what is necessary to prove your common law marriage, you get limited rights compared to a formally married couple. Later on, when a common law marriage becomes a valid one in the eyes of the law with the fulfilment of all the basic requirements of a common law marriage, only then do the partners enjoy marital rights at par with formally wedded couples.

Difficult to verify

Since common law marriages are informal marriages and are not registered before competent civil authorities, it becomes difficult to verify the same for the purposes of property rights, and tax relief rights of common law spouses.

Women end up doing more household work

It has been observed that in informal marriages or common law marriages, women end up doing more household work at the cost of their careers.

State laws in the USA with respect to common law marriages

Are common law marriages recognised in all the 50 states of the USA

Common law marriage used to be recognised by the majority of the US states quite a few decades ago. But gradually there was a decline in the common law marriages in the USA owing to rapid industrialization, urbanisation, improvement in transport and communication etc. Presently, only a handful of the states in the USA recognise common law marriage. The remaining states require proper registration and compliance with state statutes governing marriages. So, all 50 states of the USA do not recognise common law marriage presently but a valid common law marriage done in a state that recognises common law marriage is valid and enforceable throughout the territory of the USA by virtue of the Full Faith and Credit Clause in the US Constitution. The list of the states that recognize common law marriages and the list of the states that do not recognize common law marriage is given below.

States that recognise common law marriage in the USA

The states in the USA that recognise common law marriage are listed below but it may be noted that the individual nuances vary state-wise and they have been discussed later in the article in a tabulated form. For example, the state of New Hampshire only recognises common law marriage for inheritance purposes. The states that recognise common law marriage are as follows:

Colorado
District of Columbia
Iowa
Kansas
Montana
New Hampshire (for inheritance purposes only)
Oklahoma (it is best to discuss with a family law attorney as this state has contradicting laws where the Courts have recognised common law marriages despite Statutes requiring couples to have a marriage licences.)
Rhode Island
South Carolina
Texas
Utah

States that do not recognise common law marriage anymore in the USA

The following is the list of the states that allowed common law marriage before it was abolished and still recognise common law marriage as valid provided it started before the date it was abolished. In other words, any relationship that started after the abolishing date in these states, such a common law relationship will not be recognised. Most of these States do not recognise common law marriage anymore mainly because common law marriages are harder to prove and lots of false claims of inheritance happened. Moreover, it was important to protect the institution of formal marriage. The list of states in the US that do not recognise common law marriage is as follows:

Alabama (if the relationship started before 01/01/2017, only then it is valid)
Pennsylvania (if the relationship started before 01/01/2005, only then it is valid)
Georgia (if the relationship started before 01/01/1997, only then it is valid)
Idaho (if the relationship started before 01/01/1996, only then it is valid)
Ohio (if the relationship started before 10/10/1991, only then it is valid)
Florida (if the relationship started before 01/01/1968, only then it is valid)
Indiana (if the relationship started before 01/01/1958, only then it is valid)

State-wise laws with respect to common law marriage in the USA

The state-wise laws with respect to common law marriages in the USA are mentioned below. In the below table, only those states been mentioned that currently recognise common law marriage or do so if done before a particular date. The below table also contains the legal backings behind the respective state nuances related to common law marriage. Any state among the 50 states not mentioned below indicates that common law marriage is expressly prohibited in that state. The list is as below :

States	Statutory marriage authority	Common law marriage	Common law marriage authority
Colorado	COLO. REV. STAT. ANN. tit. 14, art. 2, pt. 1 (West 2005) (C.R.S. § 14-2-101 through § 14-2-113 under Uniform Marriage Act)	Common law marriage has been recognised in the state of Colorado for a very long time (since 1877).	Case laws like People v. Lucero, 747 P.2d660 (Colo. 1987) where it was stated –“In this state, a marriage simply by agreement of the parties, followed by cohabitation as husband and wife, and such other attendant circumstances as are necessary to constitute what is termed a ‘common law marriage,’ may be valid and binding.”
District of Columbia	D.C. CODE ANN. tit. 46,subt. I, ch. 4 (2005)	Yes, common law marriage is recognised by virtue of case laws.	U.S. Fidelity and Guaranty Co. v.Britton, 269 F.2d 249, 251(C.A.D.C. 1959) where it was stated – “So, whatever the rule may be elsewhere, in the District of Columbia it is that when a man and a woman who are legally capable of entering into the marriage relation mutually agree, in words of the present tense, to be husband and wife, and consummate their agreement by cohabiting as husband and wife, a common law marriage results.”
Iowa	IOWA CODE ch. 595 (2005)	Yes, Iowa recognizes common law marriage but the state statute penalises improper solemnization. Mainly, common law marriage is recognised for the purposes of support of dependents and it is not expressly prohibited for other purposes.	Case law like In re Estate of Fisher, 176N.W.2d 801, 805 (Iowa 1970)wherein the three requirements of a valid common law marriage in Iowa was laid down, viz:1. Intent and present agreement to marry by both parties.2. Continuous cohabitation of the parties.3. Public declaration or holding out to the public in the form of husband and wife.
Kansas	KAN. STAT. ANN. ch. 23, art. I (2004)	Yes, common law marriage is recognised if the basic requirements of common law marriage are fulfilled and the state statute only allows the same for parties of minimum 18 years age.	Case law like Sullivan v. Sullivan, 413 P.2d 988, 992(Kan. 1966)
Montana	MONT. REV. CODE ANN. tit. 40, ch. 1 (2003)	Yes, common law marriage is recognised	In re Estate of Hunsaker, 968 P.2d 281, 285(Mont. 1998)
New Hampshire	N.H. REV. STAT. ANN. tit.XLIII, ch. 457 (2004)	Yes, there is statutory recognition, but here common law marriage is recognised only for the purpose of inheritance. In other words, one of the parties must be deceased before a court of law validates the same. Also, a minimum of three years of cohabitation between the parties is required.	N.H. REV. STAT. ANN. §457.39 (2004)
Oklahoma	OKLA. STAT. ANN. tit. 43 (West 2005)	The situation here may appear confusing. But to make it clear it can be said that common law marriage is recognised by case law and the state statute requiring marriage licence can be said to be directory and not mandatory based on the landmark judgement of Meister v. Moore (1877). This is inferred because the state has no express laws prohibiting common law marriage.	Reaves v. Reaves, 82 P. 490,492, 494, 496 (Okla. 1905) where the following was inter alia stated – “A common law relationship iscontractual, just as is a ceremonial marriage. It must be founded upon a mutual agreement, to enter into a matrimonial relation, permanent and exclusive of all others, between parties capable of entering into such a contract; consummated bytheir cohabitation as man and wife as well as their open assumption of other marital duties.”
Rhode Island	R.I. GEN. LAWS tit. 15, ch. 1-3 (2004)	Yes, common law marriage is recognised by case law. The state statute is interpreted to be directory and not mandatory.	Case laws like –Holgate v. United Electric Rys.Co., 133 A. 243, 244-45 (R.I.1926),Sardonis v. Sardonis, 261 A.2d22, 24 (R. I. 1970)
South Carolina	S.C. CODE ANN. tit. 20, ch.1, art. 3 (2004)	Yes, common law marriage is recognised by case law. The state statute is interpreted to be directory and not mandatory.	Case law like – state v. Ward, 28 S.E.2d 785, 786-87 (S.C. 1944) wherein it was inter alia stated – “It is essential to a common law marriage that there shall be a mutual agreement between the parties to assume toward each other the relationship of husband and wife. Cohabitation without such an agreement does not constitute marriage.”
Texas	TEX. FAM. CODE ANN. tit. 1, subt. A (Vernon 2005)Sub-links for better understanding are as follows: Tex. Family Law §1.101 Tex. Family Law §2.401-2.402	Yes, common law marriage is recognised in the state statute as informal marriage.	Landmark case in this regard is –McChesney v. Johnson, 79S.W.2d 658, 659 (Tex. Civ. App. 1934)TEX. FAM. CODE ANN. tit. 1,subt. A, § 2.401-2.405 (Vernon2005)
Utah	UTAH CODE ANN. tit. 30, ch. 1 (West 2005)	Yes, common law marriage is recognised by the Statute from 27th April, 1987 onwards.	UTAH CODE ANN. § 30-1-4.5 (West 2005)
Alabama	AL Code § 30-1-20 (2016)	No, from 01/01/2017 onwards, any relationship entered after this date will not be recognised. Any relationship entered before this date will be valid upon satisfaction of other basic requirements of a common law marriage.	For cases where relationship started before 1st January, 2017 – Campbell v. Gullatt, 43 Ala. 57 (1869); Piel v. Brown, 361 So.2d 90 (Ala.1978)Boswell v. Boswell, 497 So. 2d 479, 480 (Ala. 1986)
Pennsylvania	Pa. Cons. Stat. Ann. tit. 23, § 1103	No, from 01/01/2005 onwards, any relationship entered after this date will not be recognised. Any relationship entered before this date will be valid upon satisfaction of other basic requirements of a common law marriage.	For cases where relationship started before 1st January, 2005 – Baker v. Mitchell, 17 A.2d 738, 741 (Pa. Super. 1941)
Georgia	GA. CODE ANN. tit. 19, ch. 3 (West 2005)	No, from 01/01/1997 onwards, any relationship entered after this date will not be recognised. Any relationship entered before this date will be valid upon satisfaction of other basic requirements of a common law marriage.	Ga. Stat. § 19-3-1.1
Idaho	IDAHO CODE ANN. tit. 32, ch. 2-5 (2005)	No, from 01/01/1996 onwards, any relationship entered after this date will not be recognised. Any relationship entered before this date will be valid upon satisfaction of other basic requirements of a common law marriage.	IDAHO CODE § 32-201 (2005)
Ohio	OHIO REV. CODE ANN. tit.XXXI, ch 3101 (West 2005)	No, from 10/10/1991 onwards, any relationship entered after this date will not be recognised. Any relationship entered before this date will be valid upon satisfaction of other basic requirements of a common law marriage.	OHIO REV. CODE ANN. § 3105.12 (West 2005)
Florida	FLA. STAT. ANN. ch. 741 (West 2005)	No, from 01/01/1968 onwards, any relationship entered after this date will not be recognised. Any relationship entered before this date will be valid upon satisfaction of other basic requirements of a common law marriage.	FLA. STAT. ANN. § 741.211 (West 2005)
Indiana	IND. CODE ANN. tit. 31, art. 11 (2004)	No, from 01/01/1958 onwards, any relationship entered after this date will not be recognised. Any relationship entered before this date will be valid upon satisfaction of other basic requirements of a common law marriage.	IND. CODE 31-11-8-5 (2004)Important case law:In re Sutherland’s Estate, 204 N.E.2d 520 (Ind. 1965)

Can a common law marriage help you get a green card in the US

A green card grants a foreign-born person the right to permanent residence in US territories and inter alia it can be obtained on the basis of a valid marriage entered into with a US citizen or a permanent resident of US. But the concept of marriage-based green card (that is a green card that can be obtained because your spouse happens to be a US citizen or green card holder) is not that simple. It is better to analyse the situation step by step.

Firstly, the marriage be it formal or a common law marriage needs to be a valid one. That is the basic requirement of the marriage irrespective of its type needs to be fulfilled and most importantly, the marriage should be legally recognised in the place of its occurrence. In other words, if a US citizen and a foreign citizen undergo a common law marriage in a state, say Massachusetts, but since the same is not recognised in that particular state, the common law marriage will not be a valid one and thus, based on that common law marriage, a green card cannot be obtained. On the contrary, if a US citizen and foreign-born person undergo common law marriage in a state like Texas and fulfil all the basic requirements of a common law marriage, then since at the place of occurrence common law marriage is recognised, and the common law marriage is a valid one, based on this common law marriage, a green card application can be made and obtained.

Secondly, the thing that must be noted in this regard is that irrespective of the type of marriage, as long as the marriage is a valid one at its place of occurrence as mentioned above, the US immigration authorities will seek proof of shared life. Formally married couples can show photos of their ceremonial marriage whereas common law married couples can submit their joint bank statements, joint credit card statements, joint mortgage statements etc.

Thirdly, just showing the marriage to be a valid one is not sufficient in itself to get a green card for the foreign spouse. It is paramount that the marriage, irrespective of its type, be bonafide in nature. In other words, just undergoing a valid common law marriage, in order to get a green card will prove that the foreign spouse is doing sham or fraud and will never get a green card that way.

Lastly, if all the above conditions are met, the foreign spouse gets the status of ‘immediate relative’ or ‘preference relative’ and gets rapid access to permanent residency or a green card. So, there is no discrimination between a formally wedded couple and a common law married couple when it comes to getting green cards but just undergoing common law marriage in order to get a green card will never get one a green card.

Conclusion

Common law marriage or the informal and non-ceremonial form of marriage was a true necessity a few centuries ago. But today in this modern and well-connected world, an informal system of marriage like common law marriage poses more problems than blessings. It has been rendered vestigial for most purposes in the present world. Only a minority of US states still recognise common law marriage and it is high time that the remaining states to make laws expressly prohibiting the same to better safeguard the institution of marriage and protect the rights of the couples in a more efficient and hassle-free manner. Last but not the least, it can be stated that common law marriage is like the valiant and old aircraft carrier that has majestically served its time but has exhausted its practical utility in today’s modern world.

Frequently asked questions (FAQs) on common law marriages in the USA

What is the difference between a marriage and a common law marriage?

Generally speaking, marriage is of two types, viz- formal marriage and informal marriage. The formal marriage is a ceremonial one and it gets duly registered or licensed. On the contrary, common law marriage is the informal and non-ceremonial type of marriage, without licence and registration. So, by the term ‘marriage’, we mainly refer to the formal and ceremonial type of marriage and it differs from common law marriage in the mode of conduction mainly as explained above.

What is the minimum time a couple must cohabitate for a common law marriage?

This is a common misconception that a minimum time of seven years or more is required for a valid common law marriage. In reality, no minimum time of cohabitation is necessary. Only the requirements of a valid common law marriage need to be fulfilled and no minimum time of cohabitation is prescribed for the same.

Do I get tax breaks in a common law marriage?

Yes, if your common law marriage is a valid one, that is if all the requirements of a common law marriage are met, then just like a formally married couple, you too can get tax breaks in a common law marriage.

Does an LGBTQIA+ couple have a right to common law marriage in the USA?

Yes, after the landmark judgement of the Hon’ble US Supreme Court in the case of Obergefell v. Hodges (2015), LGBTQIA+ people too enjoy the same marital rights throughout the territory of the USA at par with different sex couples.

What happens to kids in a common law marriage after divorce?

After a common law marriage gets dissolved by a divorce decree from a competent court of law, the children born out of such common law marriages, stand on an equal footing as any other children where formally married parents had undergone divorce. Similarly, the common law married and divorced parents too enjoy the same parental rights and obligations as any other formally married but divorced parents.

Can I get alimony or child support from my ex-partner after the divorce in my common law marriage?

Yes, you can get full benefits after divorce including alimony, child support etc from your ex-partner from a common law marriage just like a formal, ceremonial marriage. You just have to prove your common law marriage to be valid first.

What happens to my retirement account after my divorce from my common law spouse?

Firstly, see if your common law marriage is a valid one by checking if it fulfils all the basic requirements of a common law marriage. Secondly, see if you can prove your common law marriage or not in a competent court of law. If you can do both these things, then you stand on the same footing as any other divorcee irrespective of if it is a formal marriage or common law marriage. Then based on the terms of the divorce, your ex-partner or ex-common law spouse may get a share of your retirement account. Now, if your alleged common law spouse fails to prove your common law marriage in court, then your common law marriage is not a valid marriage and your ex partner will have no right on your retirement account.

What are the top three things to know about common law marriages in the USA?

The top three things one needs to keep in mind regarding common law marriages in the USA are as follows:

You may be eligible for most state and federal benefits that come along with traditional or normal marriages but it is always best to consult an attorney in your state before taking final decisions.
Currently, only a minority of states recognize a valid common law marriage.
It is always best to annul a common law marriage with a divorce proceeding.

Are common law marriages a good alternative to formal marriages?

It may prima facie appear that common law marriage is a good alternative to a formal, ceremonial marriage with proper registration and licences. But unless it is too much of an inconvenience, it is always advised that marriages be done formally with proper licence and registration. This will save a lot of time, expenses and hassles in the future at the time of inheritances, divorces, maintenance, child support etc.

References

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