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What is Common Law Marriage?

What is Common Law Marriage?

In some states a couple may live together for a defined period, effectively acting like a married couple without being formally married. These couples who are married in practice, but not formally, are known to be living as a common law married couple. Common law marriages often allow the same rights and obligations a formally married couple possess.

A minority of states recognize common law marriage. Common law marriage states include:

  • Alabama,
  • Colorado,
  • District of Columbia,
  • Georgia,
  • Idaho,
  • Iowa,
  • Kansas,
  • Montana,
  • New Hampshire (for inheritance purposes only),
  • Ohio,
  • Oklahoma,
  • Pennsylvania,
  • Rhode Island,
  • South Carolina,
  • Texas
  • Utah

Requirements for a Common Law Marriage

Just “living together” is not enough to validate a common law marriage, rather a common law couple must cohabitate and meet the following requirements.

  1. The couple must live together for a designated period of time (the required time varies by state).
  2. Must be legally able to marry or have the capacity to marry.
  3. Both individuals must intend to be married.
  4. The couple must hold themselves out as a married couple. This can involve:
  • Taking the same last name;
  • Publicly referring to each other in public as “husband” or “wife;”
  • Joint financial accounts;

A couple who meet these requirements will be treated by the law as a common law married couple, therefore, entitling each common law spouse to a number of rights and benefits granted to a traditionally married couple.

Rights of Common Law Couples

Couples are afforded the same rights as married couples if they meet the legal definition of a common law marriage. It is important to note that a common law marriage is legally recognized through submitting an application,  such as in the case of a domestic partnership, it can also be proven in the event a dispute arises over the couple’s status and a court must determine whether the couple met the definition of being in a common law marriage in order to determine the rights of the parties.   

The rights and benefits afforded a common law spouse is the same as that of a traditionally married couple.  For example, property bought by a common law spouse or accounts held by the couple jointly during the common law marriage will be split equally in the event of separation.

Further, children from a common law marriage have the same rights as those from a traditional marriage including the right to support and visitation rights with a parent living away from home in the event the couple separate. Should a common law spouse die, all assets automatically go to the surviving spouse. However, it is important to note that the family of the deceased spouse may contest this on the grounds that the common law marriage did not meet the formal legal requirements of a common law marriage.

An experienced family law attorney can assist you in defining common law marriage and what rights and obligations common law couples have.


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