Common Law Marriage Myths

The conceptual basis for common law marriage dates back to medieval England where such marriages were a necessity because of geographical isolation. Because of rural locations and travel limitations, it was not always possible for couples to find a celebrant to perform the ceremony, and in such cases they were legally allowed to establish a marriage by “common law”.

Obviously, these same limitations do not apply to most marriages in the modern world, and yet many myths surrounding the legality of common law marriage persist. Most people remain unclear to the exact legal definition of what constitutes a common law marriage in America today.

The most commonly held misconception is that if two people live together for seven (or some other magic number) years, they are automatically common law spouses. In fact, common law marriage has been abolished in most states, and in the states where they are still recognized there is no simple test such as number of years for determining if a couple qualifies as common law.

Today, common law marriage is only accepted in fifteen states and in the District of Columbia. The states that do recognize common law marriage are the following: Alabama, Colorado, District of Columbia, Georgia (if created prior to 1997), Idaho (if created before 1996), Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Ohio (if created prior to 10/1991), Oklahoma, Pennsylvania (if created before 9/2003), Rhode Island, South Carolina, Texas and Utah.

Typically, common law marriages are recognized by theses states when a man and woman not only cohabitate for a period of time, but also “live” as married couple, i.e. the woman takes the man’s name, the couple files joint tax returns, etc.
Yet even in cases where a common law marriage is determined, those couples will forfeit certain rights ordinarily allowed to legally married couples.

For instance, rights to protecting a family residence and dividing family assets upon separation or death are different in common law marriages. Unlike those married officially, common law spouses who have sole ownership of assets are not under any obligation to obtain consent or share profits when mortgaging or selling those assets. In the event of a divorce, property is granted to the registered owner.

Even in death or disability, the surviving common law spouse does not automatically obtain rights to such assets. In such cases it is the spouse’s responsibility to prove the validity of the marriage and they thus may have to contend with family for medical-decision making or division of property.

Since there is no simple test to identify common law marriage even in the states that still allow them, determining the legality of a common law marriage can be complicated. This is especially true since the question of a common law marriage’s validity often arises in court. For this reason, it is important that couples who intend to be married take the necessary steps to legally establish that marriage beyond question.

To protect themselves should problems or questions arise, couples must familiarize themselves with the laws governing common law marriage in their state. Moreover, for further protection it is suggested that couples who cohabitate write, sign, and date an agreement stating their intent.

Defining a marriage as common law in modern America is certainly more complicated than the mythology suggests. While a common law marriage avoids such legalities as a marriage license, the lack of such a license means that there are no clear-cut, foul-proof guidelines by which to establish a marriage as common law.