What’s the Difference Between Marriage and Common Law Marriage

When most people think of marriage, they probably imagine a couple going to a courthouse to obtain a marriage license and then following through with a wedding ceremony, either at a church or in front of a judge. 

While this formal process is perhaps the most popular method of becoming married, a less common form of marriage is the common law marriage. 

Here, find the answer to the question, “What is common law marriage” as well as details on this arrangement, including the common law marriage rules and locations where this form of partnership is still legally recognized. 

Related Readings: Common Law Partner Agreement

What is common law marriage?

According to the National Conference of State Legislatures, a common-law marriage means a legally recognized union just like any other marriage. Still, the people involved in the common law marriage have not obtained a marriage license from the court or completed a formal wedding ceremony to have the marriage made official. 

The difference between common law vs. marriage in the traditional sense is that not all states allow for common law marriage. There are actually few states that currently recognize common-law marriages. The practice of recognizing them is becoming less common, as there are states that previously allowed common-law marriage but no longer recognized them legally. 

The purpose of common law marriages

While being married under common law is not possible in every state, there is a purpose for common law marriages in states that allow it. In addition to being recognized as a marriage, common-law marriages bring some financial benefits with them, including the following:

• Eligibility for Social Security in states recognizing common-law marriage, so long as the common-law spouse can show how long the couple lived together.
• Being able to get certain job-related benefits, such as health insurance, from the spouse’s employer. 
• The ability to claim tax deductions if the couple owns a home together or has children together.
• The ability of the common law spouse to assume power of attorney and make medical decisions on their partner’s behalf if needed.
• Inheritance of assets if the common-law spouse is named in the will. Otherwise, assets go to children or other family members. 

Related Readings: Advantages & Disadvantages of Common Law Marriage

Pros & cons of common law marriage

Another piece of understanding the answer to “What is common law marriage?” is knowing the pros and cons of such an arrangement, since being married under common law comes with both positives and negatives. 

If you’re considering a common-law marriage, it’s important to understand the advantages and disadvantages below.

• Pros of common law marriage

The primary advantage of common law marriages is that they allow people to enjoy the benefits of marriage without going through the formal marriage process. This means that you enjoy access to healthcare benefits, child custody rights, rights to inheritance and spousal support, tax exemptions, and the ability to divide property in case of divorce. 

• Cons of common law marriage

While common law marriages do come with the above benefits, the reality is that it can be difficult to prove that you and your partner have entered into a marriage of common law. 

This means some of the following disadvantages may occur with common law marriage:

• If the two of you separate or one of you dies, the other may have difficulty proving that a marriage existed.
• While you are entitled to financial benefits like division of property in divorce or inheritance in the case of death, you will be without these benefits if you cannot prove the marriage existed.
• Common law marriage rules stipulate that a couple must intend to be married if they consider themselves involved in a common law marriage.
  You and your partner could split, and they could claim that the two of you never intended to be married, which would mean that the common law marriage would not be recognized.
•  If the court does not recognize that a common law marriage existed, you would have to walk away from the relationship without any rights to property that was acquired during the common law marriage.

What is required for common law marriage?

Common law marriage requirements spell out the stipulations that a couple must meet to enter into a common law marriage in states that allow this type of union. 

While requirements and the language of the law may vary slightly from state to state, the general requirements for a common law marriage are as follows:

• Neither member of the common law marriage can be married to someone else.
• The couple must live together.
• The couple must present themselves to the world as husband and wife, meaning they intend to be married.
• Both members of the couple must have the capacity to marry, meaning they are 18 years of age and are of sound mind to consent to marriage.
• Some action must indicate that the couple intends to be married, which can include opening a joint bank account, signing a document indicating that they’re married, or using the same last name. 

Also Try: The Ultimate Marriage Compatibility Quiz

Can same-sex couples get a common law marriage?

Another question about getting married under common law is whether same sex couples can enter a common law marriage. Consider the Supreme Court decision which overturned the Defense of Marriage Act, thereby granting same-sex couples the same rights to marry as heterosexual couples. 

This Supreme Court decision means that states must recognize all valid marriages in the state where a couple resides, so if heterosexual couples are permitted to engage in a common law marriage, same-sex couples should also be able to do so. 

Related Readings: Same Sex marriage Pros & Cons

Are there states where common law marriage still exists?

Common law marriage is not as common as in the past, as not many states allow it. So, what states allow common law marriages? Consider the following list of states that recognize these unions:

• Colorado
• Iowa
• Kansas
• Montana 
• New Hampshire
• South Carolina
• Texas
• Utah

States that previously recognized common law marriages but no longer do include:

• Alabama: Stopped recognizing common law marriages on January 1, 2017
• Florida: Stopped recognizing common law marriages on January 1, 1968
• Georgia: Stopped recognizing common law marriages on January 1, 1997
• Idaho: Stopped recognizing common law marriages on January 1, 1996
• Indiana: Stopped recognizing common law marriages on January 1, 1958
• Ohio: Stopped recognizing common law marriages on October 10, 1991
• Pennsylvania: Stopped recognizing common law marriages on January 1, 2005
• South Carolina: Stopped recognizing common law marriages on July 24, 2019

States that previously recognized common law marriages would honor marriages that were entered into before laws changed. 

How long do you have to be in a relationship to enter a common law marriage?

People often think that common law marriage rules require them to live together for a certain amount of time before the common law marriage will be recognized, but this is not the case. 

States that allow common law marriage do not set a minimum requirement for a couple to be together; instead, laws require that the couple present themselves as being married. 

Common law marriage rules require that a couple live together for a “significant time,” but states do not specify what period is required. 

Difference between common law marriages and civil unions

Another question people often have when asking, “What is common law marriage?” is, “What is the difference between a common law marriage and a civil union?” 

In short, civil unions were designed originally to grant same-sex couples some of the same rights that heterosexual couples derive from marriage. 

For instance, if you are in a civil union, you can access healthcare benefits through your partner’s employer, just like you would be able to if married. You can also visit your partner in the hospital and make medical decisions per civil union arrangements.

While often entered into by same-sex couples in the past, civil unions are no longer a necessity for these couples, given the overturning of the Defense of Marriage Act. 

That being said, opposite-sex couples may choose a civil union in states that do not recognize common law marriages to afford themselves some of the benefits of marriage. 

The downfall of civil unions is that they are not federally recognized, so couples in a civil union cannot file their taxes jointly and may not be able to access each other’s Social Security benefits.

Is common law marriage a good alternative to legal marriage?

Now that you understand a little more about “What is common law marriage?” you might be wondering if it’s an excellent alternative to a standard legal marriage, how does common law marriage work, and is a common law marriage legal.

Common law marriages offer some of the same advantages as marriage, such as tax exemptions, access to a spouse’s health insurance benefits, and child custody rights. 

While this can be a suitable alternative to marriage for couples who cannot afford a fancy wedding, the truth is that it may be difficult to prove that a common law marriage exists if a couple breaks up. 

This means that you may not be able to keep your assets if the common law marriage dissolves like you would be able to in a formal marriage that has been recognized through a marriage license and formal ceremony. 

If the cost of a wedding is a concern, you may be better off opting for marrying before a judge in a simple ceremony to make things official. 

Frequently asked questions (FAQs) about common law marriage

To develop a better understanding of “What is common law marriage?” you may want answers to some of the following frequently asked questions: 

• How was common law marriage established? 

The answer to “What is common law marriage? begins with looking at the history of this practice. The term “common law marriage” dates over 100 years, when these marriages were recognized under English law in England without a formal ceremony. 

An 1877 U.S Supreme Court decision made common law marriages legal in the United States but gave states the option to forbid such marriages. Common law marriages began out of convenience because it was not always easy to find someone to perform a marriage ceremony. 

Today, this form of marriage is less common, given that there is no longer as much of a stigma against living with someone or having children together out of wedlock, and there are far more people available to perform marriages. 

• If I am in a common law marriage, what can I do to protect my relationship? 

If you are wondering, “Can I get married without a marriage license?” Know that while common law marriages do not require a marriage license or a common law marriage certificate, you may benefit from working with an attorney to draft a written agreement indicating that you and your partner intend to be married and live in a common law marriage if you’re in a state that recognizes these unions. 

You may also consider finding a template on the Internet that you and your partner can complete, sign, and have notarized to document the existence of the marriage. 

Keeping records of joint bank accounts or shared health insurance benefits can also be to your advantage to show that you’ve met the common law marriage requirements. 

• What are the financial impacts of a common law marriage? 

Entering into a common law marriage gives you many of the same benefits of an actual marriage, including tax exemptions, access to your spouse’s workplace benefits like health insurance, the ability to make medical decisions on each other’s behalf, and the right to inherit property or assets if your spouse passes away. 

You also have the right to child custody and to sharing of assets in the case of divorce. The only caveat is that it may be difficult to prove a common law marriage existed should you and your partner split so that you may lose out on rights to your property. 

• Do you have to get a divorce to end a common law marriage? 

For a common law marriage to be dissolved and for assets to be legally separated, it is necessary to seek a divorce through the courts. 

An attorney can work with you to help you prove that a common law marriage existed to protect your rights in the case of a common law marriage ending. 

• How many states recognize common law marriage? 

At this time, eight states recognize common law marriages, and eight additional states that previously recognized these marriages and honored common law marriages entered into before a certain date. 

Beyond this, the stipulations of The Constitution indicate that if you enter into a common law marriage in a state that recognizes these unions but you move to a state that doesn’t, your new state of residence must honor the common law marriage. 

• How to tell if a Common Law marriage exists

If you are considering getting married but aren’t sure if a common law marriage exists between you and your partner, there are a few things you can do to find out.

First, you should talk to your partner. If the two of you have been living together for some time, it is likely that a common law marriage exists. 

However, it is important to keep in mind that state laws vary across the country when it comes to common law marriages, so it is possible that your residency in the state has not met the statutory requirements necessary to qualify for a common law marriage. 

In this case, you may need to obtain a marriage license so that you can formally become a married couple in the eyes of the law. 

• How long do you have to live with someone to be considered common law married

You are not considered common law married if you have not been living together for more than one year before you marry. Some states require that the couple live together for at least two years before they can be considered legally married, while others only require one year of cohabitation before they can be recognized as a common law married couple. 

It is important to note that state law does not necessarily apply to couples living outside of the state where the marriage is to take place.

Takeaway

The above guidelines provide a pretty comprehensive answer to the question, “What is common law marriage?” Common law marriages are an alternative to marriage, as there are almost the same benefits of common law marriage as the actual marriage but these do not require a marriage license or a formal marriage ceremony. 

Most states no longer recognize this form of marriage. If you and your partner split up, you’re at risk of losing your assets should your partner deny that a marriage existed or if you are unable to prove that such a marriage existed. 

The specifics of common law marriage by state can vary slightly, but in states that recognize this partnership, you must live together with your partner, present yourself as married, and live as if you intend to be married. 

You must also be capable of being married, meaning you must be a legal adult of sound mind and must not be married to anyone else. 

It may seem easy to enter a common law marriage. Still, you may also want to consider whether you’d have more peace of mind by making things official with a marriage license and formal ceremony, which prove that the marriage existed. 

If you have additional concerns regarding the answer to, “What is common law marriage?” It is best to consult with an attorney in your area who can answer specific questions regarding your state’s common law marriage rules.

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Jennifer Jacobsen Schulz Licensed Clinical Social Worker

Jenni Jacobsen is a licensed social worker with a master's degree in social work from The Ohio State University, and she is in the process of completing her dissertation for a Doctorate of Philosophy in Psychology. She has worked in the social work field for 8 years and is currently a professor at Mount... Read more Vernon Nazarene University. She writes website content about mental health, addiction, and fitness.   Licensed as both a social worker through Ohio Board of Counselors, Social Workers, and Marriage/Family Therapists and school social worker through Ohio Department of Education as well as a personal trainer through American Council on Exercise. Read less

(Jennifer Jacobsen is also listed in Best Marriage Therapists in Ashland)