Common Law marriage: why?

Cecil's Columns/Staff Reports
1

I know Cecil wrote a column about this, but I tried the search on the front page and can’t find it. The gist of the column was: The 7 years commonly cited is a myth, and it’s not automatic by any means. You have to declare yourself husband and wife. It was an interesting subject for me, as I lived with a girl for just over 6 years and to this day people still say “oh you lucked out, a little bit longer and you’d have been married!”. Wankers.

Anyway, my question is this: why would someone enter into this type of marriage? From what I understand you probably won’t have all the legal rights you do from a “legal” marriage, so it’s basically little more than co-habitation. I get the impression it’s used mostly by rubes afraid of the gubamint, but it’s not that big of a hassle to go down to the courthouse and apply for a marriage license. So why does this designation exist, if it has no legal power, and why do people do it?

2

My wife and I lived together as a common-law couple for ten years before getting formally married. Why? Because there were tax advantages to filing as an unmarried couple. When the Revenue Canada decided that common-law partners now had to file as married for tax purposes after 2-3 years together, there was no reason not to go down to the courthouse and legalize it all. (We had agreed very early to put off the legal status change as long as the tax advantage remained - we considered ourselves to be just as married with or without the piece of paper, and employment benefits, etc. treated common-law marriages the same as legal ones, so no difference for anything other than income tax.)

3

A link to the column you’re commenting on is appreciated. This appears to be the one: Are ships’ captains allowed to marry people at sea?

4

I’m a week away from my 20th anniversary of shameful common law monogamous inter-sex cohabitation. Got two kids, a car, a mortgage and a dead end job too so it’s just like a real marriage. But there’s no underlying mindset here, apart from possibly apathy. We’re not afraid of the government or making a ideological stand. Just didn’t do it.

Many people I knew are in long term de facto relationships, and lots are married. It don’t make no difference to the authorities round here.

5

It’s a historical relic, not an anti-government dodge. If you’re living in South Dakota in 1850, and you fancy the pretty girl on the next farm over, going down to the “local” courthouse might require a 2 or 3 day journey. So what do you do? If you can get her parent’s blessing, and set up housekeeping on part of Papa’s farm, the community in general will consider you married, and so did the common law. The rights you had were identical to any church-married couple that came out on the wagon train.

Common law marriage is actually an even older institution, but still has similar reasons for existing – lack of access or poor travel conditions to recognized centers of authority made an informal marriage option necessary.

6

The article you linked to is not the one I am thinking of. I can’t find the column in question, as I’ve said in my OP. I’ve tried a number of terms in the search and can’t find it, leading me to wonder if the column was in one of the SD books and not online. The question was basically; there is a persistent belief that if a couple lives together for 7 years, they will be considered in a “common law” marriage, and entitled to the same legal rights as any married couple. Is this true?

Paperbackwriter, so why is the provision still around today? It’s an interesting point, but you’d think it’d be struck down at some point, like the “blue laws” of PA.
What I’m trying to ask is, if I located 100 couples who are currently in a state recognized as a common law marriage (not just living together) and asked them “why did you do this instead of getting legally married?”, what answers would I likely receive?

Cider Depot, Congratulations! So you and your SO refer to each other as husband and wife? Are you legally recognized as such? Did you have a wedding or any other ceremony, or did you just look at each other one day and say “you know, we’ve been together for so long, we’re pretty much married…”?

7

That’s the problem. There isn’t a suitable word for one’s common law significant other. I’ve tried girlfriend (too old for that) and wife (inaccurate), but have tried spouse (just awful), partner (too businessy). I usually just call her “Jo” and let others just figure out who I’m referring to.

As to legal status, I am definitely not a lawyer, but across most of Australia de facto marriages are recognised as being *almost *the same as marriages. Often, proof of duration (3 years?) is required. The Family Law Act covers all of this federally; specifics vary from state to state (as in the USA, I suppose).

8

There’s sort of a justification for “common law” marriages in terms of palimony. Actually, the marriage doesn’t have much to do with it, but it could.

California is a place that does it without the tradition of marriage “by default”. The state explicitly does not have common law marriages, but it does have the nebulous section of “Marvin actions”. That’s a civil case that can arise when two unmarried people split up. These do not result from merely living together, but might depend on express or “implied” contracts between couples living together. It’s also made clear that it’s not a divorce, more of a civil case with special circumstances (and it continues to be contentious, of course).

9

I also have many friends who believe that common law marriage is in effect here in California.

When someone hears that my girlfriend and I have lived together for over 5 years, they say, “Wow, soon you’ll be married by common law,” or something to that effect, at which point I set them straight.

Or another friend of mine who recently passed 7 years and was telling people he’s now married, and I said it’s not true.

I’m amazed at how many people assume they understand this particular law and are wrong.

10

I guess that’s the point. There are legal provisions for de facto relationships, and in many cases the rules are effectively the same. However de facto relationships do not mature to be “real marriages” after a given period of time.

As previously stated, the seven year thing is rubbish. However, in New South Wales, Australia, a de facto widow qualifies for the same provisions under the law as a previously married widow, but only after if the relationship was for three years or more.

There are similar provisions for all sorts of other non-traditional relationships that are marriage-like, such as co-dependent co-habiting siblings (non-sexual I hope)

11

This is incorrect. A common law marriage, once recognized, is marriage. It is legally no different from any other legally recorded marriage in the U.S. It carries all the same rights and responsibilities, as well as all the same penalties and all the same difficulties of dissolution.

The whys of it are probably as varied as the people involved. Marriage as a legal, rather than church-recognized, institution evolved over time. The U.S. in particular quickly became the home of hundreds of religious sects, each of whom invented their own ceremonies and rites. A formalized marriage ceremony is common in many sects, but so are other rites or simply acceptance of the community.

The legal but secular recording of a marriage being the sole formal type of marriage is, I believe, an innovation of America’s odd structure. No religious ceremonies constitute legal marriage. Nor are marriage limited to be solemnized by religious officials. A host of other secular figures could also perform marriages. They all must be registered with state officials.

Some sects did not like bowing to the authority of the state. Some people did not want the bureaucracy. Some didn’t want the formal recognition or being put in a register. Some just lived too far away from county seats to make the trip worth the while. Some were ashamed of their illiteracy and inability to sign documents. Some just didn’t care.

Common law marriage laws developed out of this chaos as a way to establish formal rules, mostly for inheritance purposes, although custody of children, divorce, property ownership, and legal liability in case of suits also played large parts.

Although it technically still exists in a few states, it’s mostly an obsolete concept. However, given the number of co-habiting couples who get married to get health benefits or other aid that only comes to formally married couples it will never disappear until the current concept of marriage does.

12

Actually, the so-called “common-law marriage” (“so-called” because English Common Law does not, in fact, recognize it, and never did) is far more ancient. It was fully accepted in Western Christendom until the Council of Trent, when it was made illegal in RCism on the sole grounds that, without paperwork, there was too much of a opportunity for rape-with-an-explanation and for fraud at inheritance time. Similar provisions gradually made their way into the law of non-RC countries.

To this day, in RC theology, the bride and groom marry each other (that is, they administer the sacrament of matrimony to each other); the priest is there only as an official witness. If you read the words of the marriage ceremony carefully (in any Western Christian or semi-Christian version), you will see that this is still generally true (except, of course, for the word “sacrament”). Translated into more colloquial English, it means, “I’m officially announcing that this is a legal marriage that we’ve all just seen.”

13

In Canada, it is a provincial issue, and the concern is: what rights do “spouses” have against each other?

Roughly, people who are “married” [meaning gone through an official wedding registered by the gov’t], when they split up, must split their property and provide support obligations; those who have simply been co-habiting for a period of time have support obligations alone - no splitting of assets.

It comes down to the definition of “spouse” in the Family Law Act. The Act as a whole takes “spouse” = “married”. The section of the Act dealing with support states as follows:

So there are two ways of acquiring this status: continuous co-habitation for three years, or having a child while in a “relationship of some permanence”.

Note that this, while often called a 'common law marriage", has nothing to do with the common law any more in Ontario - it is a creature of statute.

14

Malthus, is this defining support obligations for a dependent child, or for the spouse?

Splitting assets is only required for assets that are joined. In the case of formally married couples, it is legally treated as if all assets were combined upon the marriage. For non-formal marriages, assets are only shared if the parties combine them. So a joint-checking account has both names, property lists both names, etc. Otherwise, the property belongs to the single named owner. If both parties are named in the deed for the house, then they will have to resolve that somehow, even if it is not a “divorce”.

15

I think a part of it is protecting people who might get screwed in a breakup situation where they would have to get a divorce if married legally.

In Texas, if you are common-law married, you have to get a divorce to become “un-married” unless neither party files for divorce for 2 years after the end of cohabitation. This way, if a man and a woman live together and present themselves as married, if one of them takes off with all the money that doesn’t mean that the abandoned party has no rights to the assets they had in common. They can file for a divorce and may be entitled to a portion of the assets shared.

16

Different states have entirely different rules on common law marriages. Check your own jurisdiction. Some states have it and others don’t. California doesn’t.

17

in texas you are considered “common law” if you cohabitate for 6 months and present yourself as husband and wife.

18

Not exactly. Here’s a page that gives common law marriage requirements.

19

The Texas law in full:

20

Quite true.

What most people (and some judges) call “common law” marriages in Ontario are simply couples who are not married to each other under common law or statute law. When these folks split up, they may have rights in equity against each other’s property, but they do not have any statutory right under Ontario’s Family Law Act or Succession Law Reform Act against each other’s property.

Interestingly enough, common law marriage in the strict legal sense of the word still exists in Canada - for example Re Noah Estate (1961), 32 D.L.R. (2d) 185, 36 W.W.R. 577.

That leaves us here in Ontario with four categories:

  1. Couples who are married by statute:

(a) Who have statutory property rights against each other;

(b) Who have property rights against each other in equity;

(c) Who have statutory support rights against each other;

(d) Who have statutory rights against third party social programs such as the Canada Pension Plan’s spousal credit splitting regime or the Income Tax Act’s child tax benefit scheme.
2. Couples who are not married by statute, but are married in common law:

(a) Who have statutory property rights against each other;

(b) Who have property rights against each other in equity,

(c) Who have statutory support rights against each other;

(d) Who have statutory rights against third party social programs such as the Canada Pension Plan’s spousal credit splitting regime or the Income Tax Act’s child tax benefit scheme.
3. Couples who are not married by statute, and who are not married in common law

(a) Who do not have statutory property rights against each other;

(b) Who have property rights against each other in equity;

(c) Who have statutory support rights against each other;

(d) Who have statutory rights against third party social programs such as the Canada Pension Plan’s spousal credit splitting regime or the Income Tax Act’s child tax benefit scheme.
4. The whole messy area of people in Ontario in a polygamous marriage that, despite polygamy being illegal in Canada, was a marriage validly made in the jurisdiction in which they were married:

(a) Who have statutory property rights against each other;

(b) Who have property rights against each other in equity,

(c) Who have statutory support rights against each other;

(d) Who, may or may not have statutory rights against third party social programs such as the Canada Pension Plan’s spousal credit splitting regime or the Income Tax Act’s child tax benefit scheme, depending on whether they are the senior spouse or a junior spouse. One wonders if a challenge to such restrictions could be made based on the practice of common law polygamous aboriginal marriages being stopped by the non-aboriginal governments in the 19th century, given that the right to common law aboriginal marriage still exists and brings with it all the benefits of statute marriage.