There are many reasons why couples who are in committed long-term relationships choose not to marry, perhaps because:
- They are fearful that getting married will cost a lot of money;
- They are put off by all of the formalities of a ceremonial wedding; or
- Because they simply don’t have the time or the desire to complete the legal procedures required for a formal marriage.
In some cases, couples who choose not to be formally married can take advantage of a legal arrangement that will provide them with all the same rights and responsibilities of a formal marriage, without having to deal with all of the aforementioned drawbacks.
Common law marriages
In 15 states plus the District of Columbia, heterosexual couples can become legally married without a license or ceremony. This type of marriage is called a common law marriage. To have a valid common law marriage (in any of the states that recognize it), the couple must generally meet the following requirements:
- Live together as man and wife;
- Hold themselves out as a married couple—exemplified by using the same last name, referring to the other as “my husband” or “my wife,” and filing a joint tax return; and
- Intend to be married.
The advantages of common law marriages
The primary advantage that a common law marriage offers lies in the fact that your relationship will be assigned the same marital rights and responsibilities as are assigned to formally married couple, but without you having to be formally married.
The law assigns certain marital rights and responsibilities to married couples (formal or common law) that’s it does not assign to unmarried couples. The most significant of these marital rights and responsibilities include:
- Healthcare benefits
- Hospital visitation rights
- Jail or prison visitation
- The right to make decisions about emergency or end of life medical care
- Access to records
- The division of property pursuant to divorce
- Child custody rights
- The right to spousal support
- Rights of inheritance
- Tax deductions and exemptions
The disadvantages of common law marriages
- No presumption that a marriage existed
The main disadvantage of common law marriages is that even when your relationship meets the requirements listed above, there will still be no presumption that a marriage existed, so your marital rights will not be guaranteed.
With a formal marriage, you will go through the process of formalizing your marriage through ceremony and paperwork that will be filed with the government. So, you will have proof of a formal marriage that is legitimized and entered as a public record.
- No one other than you and your partner will know about your agreement
With a common law marriage, only you and your partner will ever really know what agreement the two of you have. People may hear you calling yourself husband and wife, but since it will not be formalized, it may be hard to prove.
- You will not be entitled to divorce unless you prove you got married
When the relationship ends and you want a divorce in order to determine how your property will be divided, who will get custody of your children, and how much child support and/or alimony should be paid, you will first have to prove that you were actually married. In fact, you won’t even be entitled to a divorce until you can prove that you are married.
- In case of break up you might be left with nothing
This can be particularly problematic if the person you claim to be your common-law spouse denies that the two of you ever intended to be married. If you are unable to prove that the two of you did intend to be married, he or she may be able to simply walk away from the relationship, leaving you with nothing and very little recourse.
Moreover, if your partner dies without leaving a will, you will not be entitled to any survivorship benefits or to inherit his or her estate, until you can prove that you were married.
Contact an experienced family law attorney
The laws governing common law marriages vary from state to state. For more information regarding the advantages and disadvantages that a common law marriage offers to couples in your state, contact an experienced family law attorney in the state in which you reside.