What Defines a Common Law Marriage?

divorce attorney Jill Duffy

By Jill A. Duffy

Attorney, Cordell & Cordell

Note: This is Part 1 of a two-part article on common law marriages. Part 2 addressed the problems caused by common law marriages, including what happens if you want to break up with your partner.

Common law marriage is not so common any more. Only 9 states recognize new common law marriages, while a handful of others recognize common law marriage entered into before a cutoff date.

Common law marriage is an informal marriage or a “marriage by habit and repute.” Contrary to the popular myth, just living together or having a child together is not enough to enter you into a common law marriage.

Common law marriage does not involve the wedding ceremony that traditional married couples endure. It is an informal relationship that gains legal recognition in some states.

The 9 states that recognize common law marriage are: Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, and Utah; Washington D.C. also recognizes new common law marriages.

In the states that do recognize common law marriages, most require an agreement or intent to be married, cohabitation (habit), and holding yourselves out as married to the public (repute).

This informal marriage comes from the laws of estoppel, meaning that once you claim to be married you are estopped from claiming you are not married, even in a dispute with your partner.

If you live in a state that recognizes common law marriage it is important to know what your states requirements for a common law marriage are. Most states require an agreement or intent to be married.

This agreement does not have to be a formal contract between two people; it can be as simple as calling each other husband and wife and telling others that you are married. Most states also have a specific period of time that is required for the couple to hold themselves out as married before the common law marriage will be recognized by the state.

If you live in a state that does not recognize common law marriage, you cannot form a common law marriage no matter how long you live with your partner and what actions you take together.

However, there are some conflicting and muddy cases out there where parties spend time in a state that does recognize common law marriage and then become married under the laws of that state. Since all states recognize marriages valid in another state, the common law marriage can be recognized in a state that does not formally recognize common law marriage.

 

Note: This is Part 1 of a two-part article on common law marriages. Part 2 addressed the problems caused by common law marriages, including what happens if you want to break up with your partner.

 

Jill A. Duffy is an Associate Attorney in the Troy, Mich., office of Cordell & Cordell. She is licensed to practice in the state of Michigan. Ms. Duffy received her BA in Psychology and Spanish and graduated Magna Cum Laude from Oakland University. She received her Juris Doctor from Michigan State University College of Law and graduated Magna Cum Laude.  

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