Common-Law Marriage

A marriage formed without a license or ceremony by living together as spouses and holding yourselves out as married - which states still allow it, what has to be proved, why every state recognizes one validly formed elsewhere, and what it means for property, support and inheritance when the relationship ends.

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What it means

A common-law marriage is a marriage that exists in law without a license, a ceremony or any record, because the parties agreed to be married, lived together as spouses and presented themselves to the community as a married couple. It is a real marriage, not a lesser status: once formed it carries every right and duty of a licensed marriage and can be ended only by divorce or death, so a person who has one and marries again without a divorce is a bigamist. Only a minority of states still allow a common-law marriage to be formed, and several have abolished it prospectively while continuing to recognize those formed before the cut-off date; the rest never recognized it or ended it long ago. Because of the general rule that a marriage valid where it was formed is valid everywhere, however, every state recognizes a common-law marriage validly formed in a state that permits it, and a couple who formed one and moved is married in their new state too.

The elements are stated slightly differently in each state that has the doctrine but come to the same thing: a present agreement to be married (not an agreement to marry in the future), capacity to marry, cohabitation, and a reputation as husband and wife - joint tax returns, shared surnames, introductions as "my wife" or "my husband", insurance and beneficiary forms naming a spouse, joint leases or deeds. No period of cohabitation, however long, creates a common-law marriage by itself; living together for many years without the agreement and the holding-out is not a marriage in any state, and the popular belief in a fixed number of years is wrong everywhere. The party asserting the marriage bears the burden of proof, and in some states the standard is clear and convincing evidence because the claim is usually made after the relationship has ended or one partner has died.

The question typically surfaces at exactly those moments: a separation where one partner claims a share of property and support, a death where the survivor claims an intestate share, a pension, Social Security survivor benefits or the right to sue for wrongful death, or a creditor or an ex-spouse who asserts the marriage to reach assets or end alimony. If the marriage is found, the couple's property is divided and support awarded under the divorce statutes as for any marriage, and the survivor takes as a spouse; if it is not, an unmarried partner in most states has no claim to the other's property or support except under a contract or an equitable theory such as unjust enrichment, and no inheritance without a will. Couples who do not want to be treated as married in a common-law state should say so in writing; those who do should marry with a license, which costs little and removes the proof problem entirely.

Where this comes from

When people hire a lawyer for this

Anyone whose rights turn on proving or disproving a common-law marriage - a partner at separation, a survivor claiming an estate or a benefit, a spouse whose alimony would end on the recipient's remarriage - should get advice in the state whose law applies, which may be the state where the couple lived earlier rather than where they live now. The evidence is documentary and fades quickly, so the file should be built early. Couples who have moved from a common-law state should find out whether they are already married before either of them marries someone else.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

• AdoptionThe court order that makes a child legally the son or daughter of someone other than the birth parents - the kinds of adoption, whose consent is required, how the birth parents' rights end, the home study and the hearing, and what the order changes about inheritance, records and the child's name.
• Annulment (Void and Voidable Marriage)A court judgment declaring that a marriage was never valid, as distinct from a divorce that ends a valid one - the difference between a void and a voidable marriage, the grounds each state recognizes, who may bring the case, and what an annulment does to property, support and children.
• Child SupportMoney one parent pays the other toward a child's living costs, set in most cases by a state formula rather than by negotiation.
• Dividing Retirement Accounts in Divorce (QDRO)How pensions, 401(k) plans and IRAs are divided at divorce without tax or penalty - what a qualified domestic relations order is and why a divorce decree alone is not enough, the difference between a defined-benefit and a defined-contribution split, the plans that need a different order, and the mistakes that cost a former spouse the share the decree awarded.
• Establishing PaternityThe legal step that makes a man a child's father in law - and signing the hospital form is one of two routes, not a formality.
• Grandparent and Third-Party VisitationWhen a court can order that a child spend time with a grandparent, step-parent or other non-parent over a parent's objection - the constitutional limit set by the Supreme Court, the circumstances in which state statutes allow a petition, the special weight a fit parent's decision receives, and what a petitioner must prove.
• Grounds for DivorceThe legal basis a divorce is granted on - and in every state today at least one basis requires proving no wrongdoing by anyone.
• Guardian ad Litem and Custody EvaluatorThe two neutrals a court most often appoints in a contested custody case - what a guardian ad litem does and does not do, how it differs from a child's attorney and from a custody evaluator, who pays, what they may see, and how their reports are used at trial.
• Guardianship of a MinorA court order giving an adult who is not the parent legal authority over a child's care, or over the child's property, without ending the parents' rights - how it differs from custody and adoption, who can be appointed, what the parents keep, and how it ends.
• Legal and Physical CustodyTwo different things the word "custody" covers: who makes major decisions for a child, and where the child lives.
• Legal SeparationA court status in which spouses live apart with binding orders on support, property and children, while remaining married.
• Marital Property DivisionHow a court splits what a couple owns - and "equitable" means fair in that state's judgment, which is not the same as half.
• Modifying a Custody or Support OrderChanging an existing family court order - which usually requires proving something has changed, and never happens by the parents' agreement alone.
• Parenting Plan and VisitationThe written schedule and decision-making rules for a child after separation - and the document courts increasingly require rather than invite.
• Prenuptial AgreementA contract made before marriage about property and support - enforceable in every state, and set aside more often than most people expect.
• Protective Order (Restraining Order)A court order telling one person to stop contacting or coming near another - enforceable by police, and valid across state lines.
• Relocating With a ChildMoving a child away from the other parent - the family law dispute most likely to require the court's permission before the move, not after.
• Spousal Support (Alimony)Payments from one former spouse to the other - discretionary in most states, and taxed differently for instruments made after 2018.
• Termination of Parental RightsThe court order that permanently ends the legal relationship between a parent and child - the grounds a state must prove, the heightened standard of proof and right to counsel, the difference between voluntary relinquishment and an involuntary petition, and what the order does and does not end.

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