How Do Common Law Marriages Work?

A common law marriage is similar to a traditional marriage in that a couple lives together for a certain length of time and, for all intents and purposes, acts as if they are married. In a common-law marriage, the difference is that the couple has not participated in an official marriage ceremony, nor do they have a marriage license or certificate.

The concept of common law marriage came about in or around 1877, as this was a way for couples who lived in rural areas to become married when they lived so far out of the way that a justice of the peace could not travel to where they lived. Nowadays, with so many options available insofar as locations where people can get married, there is no need for common-law marriage. Most states do not acknowledge this as legality.

The specifics of common law marriage

For a couple to be acknowledged as living together in a common-law marriage – in a state that legally acknowledges it, of course – the following requirements must apply:

• The couple must be living together (though for how long depends on the state in which they live).
• They must be legally allowed to marry.
• They must both be at least 18 years of age (though this, too, varies by state).
• They must both be of sound mind.
• Neither of them can be married to someone else.
• They must both intend to be married.

Having the "capacity to marry”

A person lacks the “capacity to marry” if they want to get married but are already married to someone else. However, just because you cannot marry when you move in with someone, that does not mean that you can never be in a common-law marriage with them. To have a “capacity to marry,” the married party must either get a divorce or become a widow while living with their new partner.

States that legally acknowledge common law marriage

The states that legally acknowledge common law marriage as legitimate include:

• Alabama
• Colorado
• District of Columbia
• Iowa
• Kansas
• Kentucky
• Montana
• Rhode Island
• South Carolina
• Texas (Texans call it an “informal marriage”)
• Utah

The following states once acknowledged common law marriage but no longer do. However, if couples living in these states had satisfied all the requirements before these states did away with common-law marriage, then their unions would still, in most cases, be acknowledged as common-law marriages:

• Ohio (ended on October 10, 1991)
• Idaho (ended on January 1, 1996)
• Georgia (ended on January 1, 1997)
• Oklahoma (ended on November 1, 1998)
• Pennsylvania (ended on January 1, 2005)

Insofar as same-sex unions, while same-sex couples are legally allowed to marry in all 50 states, only the District of Columbia, Iowa, and Rhode Island acknowledge common-law same-sex marriages. The law is written that a “man” and a “woman” must be living together for a common-law marriage to be recognized.

Living in a state that does not acknowledge common law marriage

Suppose you do not live in a state that legally acknowledges common-law marriage, but you want to enjoy the benefits of marriage without actually getting married. What do you do? Attorneys recommend that you approach the situation like same-sex couples did before marriage was legal for them: enter into a contract with your partner.

With a contract, the two of you can specify the rights you would be entitled to if you were married. For instance, if you have a house with your partner, you can note in the contract that you would want your partner to have the home bequeathed to them in the event of your death.

Living in a state with common law marriage

If you live in one of the few states where common-law marriage is acknowledged, it is in the best interests of you and your partner to sign a statement establishing whether you intend to live together in a common-law marriage. Otherwise, the person you have lived with for the past 15 years and who jokingly refers to you as their spouse may be entitled to half of your stuff if you two eventually break up.

Couples living together in states that acknowledge common-law marriage must hold themselves out as if they were husband and wife to be recognized. They must do things like:

• File joint tax returns
• Take their spouse’s last name
• Refer to each other in public as each other’s spouse
• Hold a joint checking account and joint credit cards

Over time, couples who engage in these activities can enjoy the benefits of marriage without having the official marriage certificate legally declaring their union.

However, just as there are positives to common-law marriage, there are also negatives. You inherit all the same debts and struggles married couples have to deal with, especially if the relationship ends, as you will have to file for an actual divorce. So, while a common law marriage seems effortless at first, it may be easier to rip off the band-aid and get married, as it can be less complicated for everyone involved in the long run.

Changing your last name in a common-law marriage

Your name does not automatically change in a common-law marriage, but it does not automatically change once you are married, either. To change your name, you must change it on your identifying documents and accounts. Anyone can change their name for any reason, so long as they complete the necessary paperwork, pay the corresponding fees, and are not doing it for fraudulent purposes.

Some companies will accept a name change based on the frequency you use it. So, if you no longer want to be Mrs. Smith and start calling yourself by your spouse’s name – Mrs. Johnson – then simply referring to yourself all the time as “Karen Johnson” is enough for entities to follow suit.

However, nowadays, with the threat of identity theft and fraud being more prevalent than ever, fewer companies are willing to change your name on your accounts without proper legal documentation, such as an amended driver’s license or passport.

This is less of a concern in a traditional marriage, as parties are provided with records referencing the new name. However, those in common-law marriages must obtain a court order documenting the name change, which you can then show to banks and other entities to prove you are who you say you are.

Divorce and common law marriage

As mentioned earlier, if you wish to end a relationship that has been legally acknowledged as a common-law marriage, simply moving away from the residence is not enough. You must seek a normal divorce like any other married couple. Married couples tend to hire attorneys to handle their divorces, mainly because couples have difficulty agreeing on child support, custody, alimony, and property division.

If you and your partner’s union was acknowledged as a common-law marriage but moved to a state that does not legally recognize it, you will still need to seek a regular divorce. All 50 states acknowledge marriages from other states, including common-law marriages. Even if you move to another state, you are still considered married, and you must seek a legal divorce if you and your partner decide to end the relationship.

Death and common law marriage

This is where it may be easier to get married simply than to put all your efforts into proving your common-law marriage. If a spouse dies in a common-law marriage, then the surviving spouse must prove the marriage to inherit the deceased spouse’s property, as well as to receive benefits from the deceased spouse’s insurance, pension, and Social Security.

Consider online therapy to learn more

Are you and your long-term partner living together but are not married? Do you have questions about common-law marriage, or are you wondering what’s keeping you and your partner from officially tying the knot? 

Online therapy is a convenient and accessible way to get help. When you sign up, you’re matched with an available therapist who can start helping you right away. You can attend sessions from the comfort of home or anywhere you have an internet connection, and you can communicate with your therapist in various ways, including email, phone, or video chat. Research shows that couples found that they could effectively connect with their therapist in online sessions, and most found the experience to be positive and beneficial. If you have questions, sign up with Regain to learn more.

Takeaway

Common-law marriage may differ from what you think it is, and it can be just as complicated to end as a traditional marriage. If you have questions or want to understand more about how this type of marriage affects the dynamics of your relationship, online therapy can help.