During the past decade, there has been a great deal of debate over what does, and does not, count as marriage in the eyes of the law. One arrangement that has become less ordinary, but that has managed to survive in a few states, is common law marriage.
Historically, common law marriage was a relationship entered into by a man and a woman who considered themselves (or “held themselves out as”) husband and wife. Common law marriage differed from formal marriage in that it was not solemnized with a religious ceremony or recorded in any form of legal documentation. A common law marriage did not need to last for a specific period of time – a couple who considered themselves married, or simply behaved as if they were married, were treated as married. These arrangements were more popular (and necessary) before transportation improved access to religious and civil authorities who could perform marriages: sometimes it was just too hard to find a minister or a justice of the peace to perform a ceremony. Some jurisdictions recognized common law marriage because their populations included religious or social groups whose marital practices differed from the norm. For example, in Quaker weddings, couples unite themselves in marriage without an officiant.
Currently, only a few jurisdictions still recognize common law marriage: Colorado, the District of Columbia, Iowa, Kansas, Montana, New Hampshire, Rhode Island, South Carolina, Texas, and Utah. A handful of other states (Alabama, Florida, Georgia, Indiana, Ohio, Oklahoma, Pennsylvania) recently abolished common law marriage but continue to recognize those common law marriages entered into before the date of abolition.
While creating a common law marriage requires no ceremony or formal declaration, dissolving such a union looks like any other form of divorce. To negotiate things like property ownership and spousal support, you need a declaration, which means that you need proof that a marriage existed in the first place. Courts may examine legal documents – such as mortgages, loans, and medical documentation to determine if a couple was effectively married but it may also consider less formal items, such as Christmas cards and vacation accounts. Courts have found that partners who earn more (and who may be responsible for spousal support) have an incentive to claim that the relationship did not constitute a marriage, while partners who earn less want to prove that a marriage existed.
Of course, couples who simply live together may encounter similar challenges, especially if they live together for a long time. The solution may be paradoxical for couples who want to avoid the formality of religious or civil marriage: common law or cohabiting couples may want to enter into clear, legal agreements about the way their assets are shared in the event of a split. As the definition of marriage expands and cohabitation becomes more accepted, common law marriage may disappear altogether.
Kathleen Davies is a Staff Writer for GetLegal.com. She is a graduate of the University of Michigan Law School and has practiced law and taught legal writing and advocacy.