Common Law Marriage

It is possible to marry without saying “yes I want”; at least in a minority of states and in the District of Columbia. At present, 11 states and the capital of our nation, allow the union of homosexuals to be considered as marriage without the need for a formal license, provided they meet the requirements for a common law marriage.

States that Recognize Marriage of Customary Law

At one time, common law marriages were allowed in most US states. The Supreme Court recognized the validity of customary law marriages in 1877, in the absence of a state law prohibiting customary law marriages in a specific State. Today, common law marriages are recognized in:

  • Alabama;
  • Colorado;
  • Georgia (if the common law marriage was established prior to January 1, 1997);
  • Idaho (if the common law marriage was established prior to January 1, 1996);
  • Iowa;
  • Kansas;
  • Montana;
  • New Hampshire (for inheritance purposes only, and not for other rights conferred by traditional marriages);
  • Ohio (if common law marriage was established prior to October 10, 1991);
  • Oklahoma;
  • Pennsylvania (if common law marriage was established prior to January 1, 2005);
  • Rhode Island;
  • South Carolina;
  • Texas;
  • Utah, and
  • Washington DC

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  • Washington DC

General Requirements for the Establishment of a Common Law Marriage

Although each of the aforementioned States has its own criteria to determine whether or not to recognize a common law marriage, there are three requirements that generally must be met before a customary law marriage is recognized, including:

  • That the couple has lived together for a considerable amount of time. What does a state determine as considerable? It is a matter of customary law, rather than statutory;
  • That the couple considers themselves as a married couple. The courts will consider such things as if they allude to each other as a husband and wife socially as well as in official forms, including tax returns, and
  • That the couple intends to be a married couple.

Differences between Customary Marriages and Traditional Marriages

The main difference between customary unions and traditional marriages is in how the marriage was created. Once customary marriage has been established, state law requires that it be treated like any other. There are no differences in the rights of the spouses during or after the marriage with the notable exception of New Hampshire that only allows hereditary rights to customary spouses and not the rights that arise from marriage when both spouses are alive.

What to Do if You Need to Divorce Your Common Spouse

While common law couples are able to avoid the requirements and licenses of the Government to marry, they are not able to avoid divorce in court. None of the states that recognize common law marriages recognize customary law divorces. Instead, they require all couples who want to divorce to follow the formal divorce proceedings before the courts like the other traditionally married couples.

If you live in one of the Common Law States and your relationship meets the criteria established to have a marriage of that kind, then you can get married without saying “I want to”.

Talk to a lawyer qualified in Family Law today

This article is intended to be useful and informative, but legal issues can become complicated and stressful. A lawyer qualified in family law can attend to your particular legal needs, explain the law and represent you in court. Take the first step now and contact a qualified family law attorney near you to discuss your particular legal situation.

by Abdullah Sam
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