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Checklist: Documents That Establish a Common Law Marriage

Common Law Marriage Documents

In some states, a marriage can be formed without the typical formalities.  This can be done using the common law marriage doctrine.  This establishes a legal marriage between a couple if they can show that:

  • They intend to be married,
  • They are holding themselves out to the community as married,
  • They have the capacity to be married, and
  • They have lived together for a certain amount of time. Below are some of the documents you can use to establish a common law marriage.  

Intent

The couple must intend to be married.  This is often shown by one spouse saying something like “we are married in God’s eyes even if we do not have a formal ceremony.”

  • Affidavits: Each partner could sign an affidavit saying they intended to be married.  Friends and family could also testify that the couple intended to be married.  
  • Correspondence: Any emails, texts, or letters between the parties that explain they consider themselves married would help establish intent.

Related: States that Recognize Common Law Marriages

Holding out as married

This means that the couple has to act like a married couple in the eyes of the community and not just secretly think of themselves as married.  

  • Shared Last Name: Any documents that show the wife using the last name of the husband tend to show the couple was acting as though they were married.  This could include official documents like a bank statements or unofficial documents like a wedding invitation addressed to the couple as “Mr. and Mrs.”  
  • School Records: If the children’s school has both parents listed as a married couple, that suggests they are holding themselves out as married.
  • Employment Records: Records that list a spouse or emergency contact can show the couple was behaving as though they were married.   
  • Civic Engagement Records: This could include church records showing family status or a record of donations made on behalf of a married couple.  
  • Joint Financial Obligations: Any credit card bills or joint bank accounts that show shared financial obligations can be used to help demonstrate the nature of the relationship.  
  • Affidavits:  Friends, family, or even the couple themselves could testify about marriage-like actions taken by the couple.  

Capacity

Each person must have the capacity to marry, primarily meaning they must be of sound mind, cannot be married to anyone else, and they must be 18.

  • Birth Certificate: This is the most obvious way to demonstrate age.  
  • Medical Records:  If it is an issue, these can be used to show sound mind.
  • Affidavits: These can be used to affirm that there were no previous marriages.

Cohabitation

The couple must live together for a period of time that varies from state to state, often seven years.  

  • Housing Documentation: A title to a house or a lease that is made out to both partners will tend to show that the couple was living together.  
  • Affidavits: The couple and their neighbors can testify about where they lived.  
  • Mail: Mail received by each partner as a given address would suggest that that are both living there.  

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