Common Law Marriage

[GopherGod72]

Is there such a thing as “common law marriage”? If there is, are there any legal stipulations behind it? Is this (in Merika) a national thing or a state thing. How many years do you have to be living together?

I’ve been living with the same woman now for 5 years… I’d hate to think i’m now married.

[Whack-a-Mole]

I’m pretty sure this is determined on a state-by-state basis. However, I also think most states have done away it although there may still be a few holdouts left. In Illinois I have a vague recollection that it took 6 years to get married under common law but I am almost positive (without looking) that Illinois no longer has this on the books.

You’ll have to check the laws of the state you live in to know for certain or consult an attorney licensed to practice in your state.

[Whack-a-Mole]

This link on Common Law Marriage gives a quick and dirty run down of what states still have it and what is required (11 states in all and the District of Columbia).

[Ringo]

From this site:

Texas is one of 13 states (plus Washington D.C.) that recognizes common law or informal marriages. The elements necessary to establish an informal marriage in Texas, given in §2.401 of the Family Code, are (1) the man and woman agreed to be married, (2) after the agreement they lived together in this state as man and wife and (3) they represented to others that they were married. The suit must be filed within two years of the last cohabitation of the parties.

Proof of the required agreement to be married may be made by circumstantial evidence or conduct of the parties under Russell v. Russell, 865 SW2d 929 (Tex. 1993). That proof is subject to legal and factual sufficiency review on appeal to the court of appeals and to legal sufficiency review upon appeal to the Texas Supreme Court. And under Russell, a finding that there is legally and/or factually sufficient evidence of cohabitation and public representation will not necessarily constitute legally and/or factually sufficient evidence of an agreement to be married.

Don’t you just love the Internet? Another site here that says there are ten states that recognize common law marriage.

Ask a lawyer in your state.

[bibliophage]

Second time tonight I’ve provided a link to this column of Cecil’s: Are ships’ captains allowed to marry people at sea?

There are still some states that recognize common-law marriage. Typically all that’s necessary is that the parties (1) be legally free to marry (e.g., no undissolved prior marriages); (2) properly consent; (3) “cohabit” (do it); (4) live together; and (5) let the neighbors think they’re married. (Contrary to common belief, it is not necessary that the couple live together for seven years.)

[DoctorJ]

Actually, in some states, it is necessary that they live together for a specified length of time. When I took a high school class on the legal system, Kentucky recognized common law marriage between couples who had lived together for an uninterrupted seven year stretch, who had no legal reason they could not marry one another, and who represented themselves as being married.

Still, regardless of the time you’ve lived with someone, if you don’t represent yourselves as being married to one another, no state will recognize you as being common-law married.

[Billdo]

Common Law Marriage is a fairly common topic on these boards, and one that I’ve previously written at length about. I’d direct you to the following threads:

Common Law Marriage

What is Common Law Marriage?

What constitutes a legal marriage (IRS)

Commonlaw marriage in Texas

In short, yes there are legal stipulations behind it. If you have not been holding yourself out to the community as married, generally you won’t be considered common law spouses no matter how long you live together.

[Nametag]

[Nitpick]If there is a state statute setting forth the conditions for recognition, is it really a “common law” marriage?[/nitpick]

[barbitu8]

They may have to prove that they live together as man and wife and present themselves to the public as a married couple…

Actually, they will have to prove that. Provided both parties have the capacity to marry (of legal age, not already married, etc.), if they intend to consider themselves married and hold themselves out to the public as married, they are married. BTW, there is no common law divorce, so they will need to get a divorce as provided by the state statute.

There are 12 states + DC that still allow CL marriages. Some states expressly do so by statute (the marriage statute states that this method does not abrogate the CL method), and others do so by court intepretations. The general rule is that a statute in derogation of the CL, must be strictly interpreted. Hence, in some states, if the statute does not expressly abrogate the CL marriage, the courts have held that both methods are equally valid. There is no time period in CL marriages. The parties must intend to be married and hold themselves out as married. I’m not familiar with the Texas statute on marriages, but it is conceivable that it provides that the CL marriage is not abrogated, provided that the parties live together for 7 years. But frankly I doubt it. And I’m not interested enough to look it up. You’re welcome to do so at www.findlaw.com

[barbitu8]

Oops, Ky, you say. Ky does not even recognize CL marriages. From a case:

At common law a mutual agreement between a man and woman, capable of contracting, to become presently husband and wife, when accompanied by cohabitation as such, constitutes a valid marriage, no formal ceremony being required. Nolan v. Giacomini, 250 Ky. 25, 61 S.W.2d 1055. In this case, while the appellant questions the probative force of the evidence of a common law marriage between Maggie and Kenneth, it seems to us the essential elements were satisfactorily proved. In Gatterdam v. Gatterdam, 86 Ohio App. 29, 85 N.E.2d 526, appeal dis. 151 Ohio St. 551, 86 N.E.2d 614, the marital status was established though the parties had held themselves out as husband and wife for only two weeks after the agreement. We have recognized that such marriage in Ohio is valid, although one or both parties moved to Kentucky after the relationship was created. Tryling v. Tryling, 245 Ky. 399, 53 S.W.2d 725; [**12] Hoffman v. Hoffman, 285 Ky. 55, 146 S.W.2d 347. That recognition was given in Kennedy v. Damron, Ky., 268 S.W.2d 22, but we held a common law marriage was not established because the parties were but transients in Ohio.

Tarter v. Medley, 356 S.W.2d 255 Note that the court states that even a short of time as two weeks is enough.