Common Law Marriages

By Lauren Williams

Most states have done away with common law marriage. Today, only a handful of states still recognize common law marriage. In general terms, common law marriage requires that the couple assume that they are married and hold themselves out as man and wife publicly and professedly.

Additional Requirements

This definition protects, to a certain degree, fraudulent claims of common law marriage. Often, there is even a requirement of marital cohabitation which provides additional objective evidence of a common law marriage. Many jurisdictions will contain a statute that prevents a “wife” from purporting a common law marriage after her “husband” has died in order to claim a share of the deceased husband’s estate.

Clear and Convincing

In addition, the evidence of a common law marriage often has to be “clear and convincing.” Elements involved in determining common law marriage include that there is no agreement to be husband and wife in writing but that there is a marriage based on the evidence that the couple lived as husband and wife for many years. Evidence can include testimony from family members, friends, acquaintances and others that they were reputed to be married. Habit and repute often will be enough to support a finding of common law marriage.

Impediment Test

Often a test of common law marriage will be the impediment test. Under these cases, if there is an impediment to a couple getting married, like one of them cannot get divorced for whatever reason, and the couple still decides to live as husband and wife for many years. If, subsequently, the spouse does get divorced and the couple living together remains living as though they were husband and wife after the impediment has been removed, they couple may have a valid common law marriage.

Variations from State-to-State

The law can get rather complex from state to state, so if you need more information regarding common law marriage, check with an attorney licensed in your state with knowledge of matrimonial law so he or she can inform you specifically regarding your issue or question. For example, if a couple begins to reside together in a state where common law marriage is not recognized and then they subsequently move to a state that does, what effect does that have on their marital status. The same issues arise if they couple resided in a common law state for years and then moves to a state that does not recognize common law marriage. These are important issues through which an attorney will be able to help guide you.

Lauren Williams

About The Author

Lauren Williams is a legal writer for WomensDivorces.com and the USA Law Network.