Common-Law Marriage
Common-law marriage (CLM) refers to a marital relationship that occurs without obtaining a formal marriage license or participating in a traditional ceremony. This type of union has a complex legal history and its recognition can vary significantly by jurisdiction and relationship circumstances. Individuals often enter into CLMs as an alternative to conventional marriages due to factors like cost or availability of legal marriage options. While CLM may be colloquially understood, its legal implications differ; terms like "de facto marriage" or "irregular marriage" are sometimes used interchangeably, though they can carry distinct legal meanings.
Historically, CLM emerged in contexts where legal marriage was inaccessible, leading couples to publicly present themselves as married. In the U.S., approximately ten states and the District of Columbia currently recognize CLM, and legal tests for establishing such relationships generally involve evidence of cohabitation and mutual intent to be married. CLM can carry significant implications, particularly when couples dissolve their unions, requiring legal clarity on asset division and support responsibilities. Internationally, attitudes toward CLM vary, with some countries recognizing it while others do not. Overall, CLM represents a unique approach to partnership that continues to evolve in legal contexts across different cultures and jurisdictions.
On this Page
Common-Law Marriage
A common-law marriage (CLM) is a marriage without the legal marriage license/certificate and/or a solemnization ceremony required of a civil or religious marriage (CoRM). CLM has an intricate history and its legal recognition varies by jurisdiction, length/type of relationship and family structure. CLM has been practiced by individuals seeking alternatives to CoRM and by those for whom the cost, availability and/or legal obligations under CoRM prevent them from engaging in a CoRM. The term CLM might be what the relationship is called under the law or because it is a term that is understood by most people (that is, a colloquialism used even though the relationship does not have legal protection). What some have called CLM others have called clandestine marriage, de facto marriage, irregular marriage, irregular union, marriage by cohabitation, repute, declaration, and/or adult interdependent partners, although these terms might also have additional meanings under the law. Also associated is the term palimony, or seeking financial support after a CLM has ended.
Brief History
In the 1690s, when Great Britain began taxing marriage, the Vicar of Tetbury in Gloucestershire found that half of his parishioners did not have church marriages. Many had secretly exchanged vows or married in private by wandering clergy. Couples proclaimed themselves married in the eyes of God and publicly presented themselves as spouses. These unions evaded Britain’s marriage tax but did not legally protect property rights, though women’s property rights in CoRM were not formally protected under British law until the nineteenth century. CLM became a property issue when World War I common-law wives were hindered from claiming their partner’s pay or pensions.
CLM led to abuses such as forced marriage, sexual assault, incest, abandonment, and bigamy. In the eighteenth century, Constantia "Con" Phillips, who took one legal husband plus seven more, led to Lord Hardwicke’s Marriage Act in 1753 that ended the so-called clandestine marriage, or declaring vows in private before two witnesses, in England and Wales. So the English and Welsh traveled to Scotland, where the practice remained in effect, prompting Scotland to impose in 1836 a twenty-one-day waiting period for new marriages. Scottish marriage by declaration, also called irregular marriage, remained legal until 1939, and marriage by co-habitation (living together) with repute (while publically presenting themselves as spouses) was recognized until 2006. Experts note that recognizing irregular marriage made Scotland unique in Western Europe and the relationships faced additional scrutiny.
Since the United States and Canada were colonized by Great Britain the practice of CLM likely migrated with immigrants coming to North America. The sparse population of the early colonies and territories, especially on the frontier, and lack of clergy and legal officials did not prevent couples from falling in love and living publicly as husband and wife. Many US states eventually rejected CLM based on religious or legal objections, while a minority of states, such as Texas, and federal government agencies, continue to recognize the practice today. In Canada the legal standing for CLM varies from province to province, with Quebec the sole province not to legally recognize CLM.
Impact
The following states recognize CLM: Colorado, Kansas, Rhode Island, Iowa, Montana, Oklahoma, Texas, Utah, and the District of Columbia. Some states have CLM statutes (Colorado, Iowa, and Kansas), while other states have recognized CLM in case law (Alabama, Oklahoma, and Rhode Island). Other states recognize CLMs established before laws changed: Pennsylvania pre-January 1, 2005; Ohio pre-October 10, 1991; Indiana pre-January 1, 1958; Georgia pre-January 1, 1997; Florida pre-January 1, 1968; Alabama pre-January 1, 2017; Idaho pre-January 1, 1996; and South Carolina pre-July 24, 2019. Some states recognize CLM in limited circumstances. For example, CLM is reccognized in New Hampshire for determining inheritance rights. In general, the US Constitution requires states to recognize each other’s marriage laws.
Legal tests for establishing a CLM differ across the United States, though standard requirements can include extended cohabitation, presenting publicly as a couple, or demonstrating the intent to be married. Evidence that can establish a CLM might include joint-income tax returns, presenting as spouses before neighbors and friends, joint property/finances, adopting a spouse’s surname, and claiming a spouse on one’s health insurance, life insurance, or pension account. Legally establishing a CLM often arises when couples dissolve their CLMs and have to divide their assets; or when a person wishes to end alimony; avoid testifying or suppress another’s testimony based on spousal privilege; sue for damages; or establish inheritance.
The US Department of Labor changed the definition of spouse under the Family and Medical Leave Act (FMLA) of 1993 to include spouses in CLMs and same-sex marriages. Similarly, the Internal Revenue Service (IRS) accepts joint tax returns from CLM couples in Alabama, Colorado, the District of Columbia, Iowa, Kansas, Montana, Oklahoma, Pennsylvania, Rhode Island, South Carolina, and Texas. Once a CLM is legally established in the United States, it is generally equivalent to a CoRM, though legally establishing a CLM might pose significant challenges depending on one’s circumstances or jurisdiction.
CLM is variously regarded around the world. Britain does not legally recognize CLMs though 61 percent of Britons reported believing the opposite. Japan recognizes CLMs as de facto marriages, but has rejected cases premised on CLMs with unconventional circumstances (for example, couples living separately). Costa Rica legalized CLM in 2013, allowing a same-sex couple inheritance and social security benefits. Similarly, Texas recognized a lesbian couple’s CLM in 2014 allowing the surviving woman to share in her deceased partner’s estate. This happened before the US Supreme Court effectively legalized gay marriage nationwide with its 2015 ruling.
Bibliography
"Common Law Marriage by State." National Conference of State Legislatures, 20 Mar. 2020, www.ncsl.org/human-services/common-law-marriage-by-state. Accessed 18 Dec. 2024.
"Costa Rican Couple Gets Common-Law Marriage." Philadelphia Gay News, 12 June 2015, ticotimes.net/2015/06/02/costa-rica-grants-first-gay-common-law-marriage-central-america. Accessed 18 Dec. 2024.
"Family and Medical Leave Act: Final Rule to Revise the Definition of ‘Spouse’ under the FMLA." United States Department of Labor, 27 Mar. 2015, www.dol.gov/agencies/whd/fmla/spouse. Accessed 18 Dec. 2024.
Ferner, Matt. "Texas Judge Recognizes Same-Sex Common Law Marriage in Historic Ruling: A Widow Will Now Be Allowed to Inherit Some of the Assets of Her Late Wife." Huffington Post, 21 Sept. 2015, www.huffpost.com/entry/texas-judge-recognizes-same-sex-common-law-marriage‗n‗55fc868ae4b08820d918c34d. Accessed 18 Dec. 2024.
Gordon, Eleanor. “Irregular Marriage: Myth and Reality.” Journal of Social History, vol. 47, no. 2, 2013, pp. 507–25.
Jenni, Russell. "Common-Law Marriage Doesn’t Exist. It’s Time It Did." Evening Standard, 4 July 2011, www.standard.co.uk/hp/front/commonlaw-marriage-doesn-t-exist-its-time-it-did-6418194.html. Accessed 18 Dec. 2024.
Moeller, Philip. "The Pitfalls of Claiming Social Security in a Common-Law Marriage." Money, money.com/social-security-common-law-marriage. Accessed 18 Dec. 2024.
Pollin, Edra. "When Does Cohabitation Become a Common Law Marriage?" Huffington Post, 6 Mar. 2012, www.huffpost.com/entry/when-does-cohabitation-be‗b‗1184994. Accessed 18 Dec. 2024.
Waller, Maureen. "A History of the English Marriage." Daily Telegraph, 30 Sept. 2009, www.telegraph.co.uk/culture/6243761/A-history-of-the-English-marriage.html. Accessed 18 Dec. 2024.
Zaki, Hanan. "Common Law Marriage: State Guide." Find Law, 13 July 2023, www.findlaw.com/family/marriage/common-law-marriage-states.html. Accessed 18 Dec. 2024.