# Common Law marriage: why? **URL:** \ **Category:** Cecil's Columns/Staff Reports\ **Created:** [September 25, 2008, 12:17am UTC](https://boards.straightdope.com/t/common-law-marriage-why/465086 "2008-09-25T00:17:26Z")\ **Posts on this page:** 8\ **Page:** 2
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [October 9, 2008, 2:42pm UTC](https://boards.straightdope.com/t/common-law-marriage-why/465086/21 "2008-10-09T14:42:10Z")
> [@Cider\_Depot](#): > > 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. I fail to see why “wife” is inaccurate. It is a “de facto _marriage_”, so she is, in fact\*, your _de facto_ wife. And, if said _de facto_ marriage is legally recognized in Australia, she is also your wife _de juro_. \*Yes, horrible pun intended. ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [October 9, 2008, 3:20pm UTC](https://boards.straightdope.com/t/common-law-marriage-why/465086/22 "2008-10-09T15:20:54Z")
> [@BigT](#): > > I fail to see why “wife” is inaccurate. It is a “de facto _marriage_”, so she is, in fact\*, your _de facto_ wife. And, if said _de facto_ marriage is legally recognized in Australia, she is also your wife _de juro_. > > \*Yes, horrible pun intended. I don’t think de facto or common law marriage is recognised in Australia, though unmarried couples in Australia may have most of the rights of married couples. The problem is one of constitutional law. The Constitution gives the Commonwealth Parliament the right to legislate on: > [@](#): > > (xxi) Marriage: > (xxii) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants: (Section 51, (xxi-xxii)) But the Constitution is an act of the United Kingdom Parliament, and has to be interpreted as such. In English law in 1900, “marriage” did not include common-law marriage, so the Commonwealth Parliament cannot legislate on common-law or de-facto marriage, other than as incidental to other powers (e.g., giving pension rights to domestic partners of federal public servants). Only the states can do so, unless they delegate power to the Commonwealth. ---
**Author:** ![John\_W.Kennedy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_w.kennedy/32/1031_2.png) [@John\_W.Kennedy](https://boards.straightdope.com/u/John_W.Kennedy)\ **Post date:** [October 9, 2008, 5:22pm UTC](https://boards.straightdope.com/t/common-law-marriage-why/465086/23 "2008-10-09T17:22:15Z")
_De jure_, not \*de _juro_. _Jus, juris_ is a 3rd-declension Latin word, unlike _factum, -i_, which is 2nd-declension. Consequently, their ablative forms differ. ---
**Author:** ![Irishman](https://avatars.discourse-cdn.com/v4/letter/i/b487fb/32.png) [@Irishman](https://boards.straightdope.com/u/Irishman)\ **Post date:** [October 9, 2008, 9:43pm UTC](https://boards.straightdope.com/t/common-law-marriage-why/465086/24 "2008-10-09T21:43:38Z")
\*\*Giles \*\* > [@](#): > > I don’t think de facto or common law marriage is recognised in Australia, though unmarried couples in Australia may have most of the rights of married couples. The problem is one of constitutional law. No, the problem is one of semantics. What does “wife” mean? What does “marriage” mean? Of course this could easily be sidetracked into a discussion on gay marriage rights and amendments to the Constitution to define marriage one way or another, but that’s not my intent. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 21, 2008, 1:13pm UTC](https://boards.straightdope.com/t/common-law-marriage-why/465086/25 "2008-10-21T13:13:08Z")
> [@Irishman](#): > > **Malthus** , is this defining support obligations for a dependent child, or for the spouse? It’s to define the spport obligations that spouses, including “common law” spouses, have to each other. See [s. 30 of the Ontario _Family Law Act_](http://www.canlii.org///on/laws/sta/f-3/20080821/whole.html#BK33): > [@](#): > > **Obligation of spouses for support > 30.** Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so. Unmarried couples who meet the test set out in s. 29 therefore can be liable to pay spousal support upon the break-up of the relationship. [QUOTE=Irishman] 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”. [/QUOTE] This may be an accurate summary of the law in your jurisdiction, but it isn’t accurate for other jurisdictions. For example, in most Canadian jurisdictions, there isn’t the community property regime you describe. Here, the general rule is that only property that the spouses acquire after the formation of the spousal relationship is considered family property. (Although the matrimonial home is normally considered part of the family property, even if one of the spouses owned it before.) If Spouse A has a particular asset upon going into the relationship, and keeps it separate and apart from the assets acquired during the relationship, then upon break-up, it’s not family property and Spouse B normally has no claim on it. All of which just highlights that there is no one answer to questions of this sort. Family property law can vary tremendously from jurisdiction to jurisdiction. Anyone who has a real-life need for information on these issues should consult a lawyer in the jurisdiction where they live, or where the property is located. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 21, 2008, 1:27pm UTC](https://boards.straightdope.com/t/common-law-marriage-why/465086/26 "2008-10-21T13:27:54Z")
> [@Malthus](#): > > 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. Since family law is a matter of provincial jurisdiction, as **Malthus** notes, there can be considerable variation on the approach taken. **Malthus’** comment that there is no splitting of assets for unmarried cohabitants is an accurate statement for the statute law of Ontario, but other provinces take a different approach. Quebec and Nova Scotia have civil union laws, which allow unmarried couples to register their union. Once they do so, they may have property obligations to each other in the event of break-up. Saskatchewan and Manitoba provide that if a couple has been living together for a certain period of time, then they have exactly the same rights upon break-up that married couples do, under family property laws. Saskatchewan also provides that unmarried couples have the same rights under succession and intestacy laws that married couples have. And, in all of the common law provinces, the courts have held that the common law of trusts normally gives unmarried spouses some claims to property that the two have acquired during the course of the relationship, regardless whose name the property is formally under. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [October 21, 2008, 3:17pm UTC](https://boards.straightdope.com/t/common-law-marriage-why/465086/27 "2008-10-21T15:17:24Z")
To summarize what others have said: **In the U.S.** , common law marriage is exactly the same as a more formal marriage. Many states (most?) no longer have their own common-law marriage provisions, but all states recognize common-law marriages from other states. That is, in State 1 there’s no provision for common-law marriage, but if a couple from State 2 qualifies for that state’s common-law marriage and then later moves to State 1, they’re still married in the eyes of State 1. Because it’s a creature of state law, any state which creates common-law marriages can have different rules. In general, they require a certain period of cohabitation AND that the couple hold themselves out as married. Merely living together doesn’t make you married. But referring to each other as husband and wife in dealings with the community will do it, if you meet the state’s other requirements. Once you’re married, you’re married – at common law or at the altar makes no difference in the rights and responsibilities of marriage. You still (in general) need to get a formal divorce to dissolve the marriage (although it’s possible some states have different rules on that score). OTOH, if you’re not married, you’re not married, and you can split up without divorce. However, it’s possible that your state law may consider even non-married cohabitants to owe each other support obligations (i.e., “palimony”). As for the why – **paperbackwriter** covered the origin. As to why we’ve not gotten rid of it – why? Marriages, even City Hall marriages, take time and money. For the working poor, both may be in short supply. So the existence of common-law marriage still allows them to participate in this important social institution. –Cliffy ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 21, 2008, 3:29pm UTC](https://boards.straightdope.com/t/common-law-marriage-why/465086/28 "2008-10-21T15:29:53Z")
> [@Cliffy](#): > > To summarize what others have said: **In the U.S.** , common law marriage is exactly the same as a more formal marriage. Many states (most?) no longer have their own common-law marriage provisions, but all states recognize common-law marriages from other states. That is, in State 1 there’s no provision for common-law marriage, but if a couple from State 2 qualifies for that state’s common-law marriage and then later moves to State 1, they’re still married in the eyes of State 1. Here are a couple of threads in which I provide info on which states still recognize common law marriage and also address the question of interstate recognition of common law marriages. There’s also some fun with bigamy at no extra charge. 😃 > **[Question about common law marriage...](https://boards.straightdope.com/sdmb/showthread.php?t=345289)** > > is it recognized in all US states? There’s an IMHO thread (that I probably don’t need to link to) where the issue came up (at least for me). So - is common law marriage recognized in all US states for the purpose of inheritance and wills and what... > **[Does a common-law marriage 'count' twards a charge of bigamy?](https://boards.straightdope.com/sdmb/showthread.php?t=436843)** > > Imagine I live in a state that recognizes common-law marriage. My partner and I perform all of the motions required to have undergone such (live together for the prescribed period, refer to ourselves as husband and wife, etc) but the relationship is... [Previous page](https://boards.straightdope.com/t/common-law-marriage-why/465086.md?page=1)