Common law marriage

What does “common law marriage” mean? I understand it to mean that even if you didn’t have a marriage license you can be considered marriage based on living together/sharing life as married. Correct? What is this used for, just for divorce situations where there was not marriage license? Also, has the concept been used in cases of same-sex disputes or benefits, etc.?

This thread has a good introduction to common law marriage.

The GD thread also goes into the subject in depth.

Common Law Marriage is a term that can be considered when a couple is breaking up and attempting to divide assets appropriatly - it can be used to negotiate spousal and child support (although it’s not a requirement of any sort for child support).

Additionally (at least in Canada), living “Common Law” qualify’s spouses of both sexes for benefits under federal and provincial employment programs (eg - I work at a univeristy - were I common law, my common law spouse would receive benefits such as health care, tuition grants, etc, regardless of their sex).

In Canada I believe the offical definition is “Cohabitating in the manner of a married couple for a period of 6 months or more.” however, at my university benefits are not extended until 1 year.

No US jurisdiction has extended the concept of common law spousal status to a same-sex couple. In one case in Washington state, a surviving same-sex partner was awarded a share of the deceased partner’s estate, but not on the basis of any common law standing. The case was decided on the basis of equity. The court found that it would not be equitable to deny the surviving partner a share of the estate.

There was a case decided just this week in Texas in which the court declined to offer any spousal or spouse-like status or protection to another surviving partner.

In many areas, British systems recognise something similar to what alice_in_wonderland describes for Canada. Although I believe it’s slightly more flexible - forms for government benefits and so on ask question such as ‘are you living with a partner on a permanent basis’. This is partly because of the ongoing definition of the rights of gay couples to receive comparable treatment to straight couples (whether married or not).

CL marriage was the way marriages occurred in England before statutes stating the manner that a man and a wife may engage in a civil marriage ceremony. Common law was the law in England that was developed under the reign of Henry II, who united the various courts of the land and have them adopt standards, instead of a pell-mell application. The rule of law replaced more barbaric ways to determine one’s guilt (trial by fire, etc.) The CL was adopted by the USA, and unless a certain common law was abrogated by statute, it remains the law of the land. A well-known maxim in law is that a law in derogration of the common law is strictly construed.

All of the states now have statutes providing for civil marriages. In a few states, the court have held that since the statute did not specifically abrogate common law marriage, CL marriages will still be recognized. In a few others (my state, SC, being one) the statute specifically states that CL marriages will continue to be recognized.

It is important to recognize that there is no difference between a CL marriage and a statutory marriage: they are both legal and valid marriages. No difference at all. However, there is no CL divorce.

The gist of the essentials of the CL marriage is that the parties intend to be married (not merely “shacking up”) and hold themselves out to the public as being married. No duration is required, but a short duration may negate the alleged intent of being married.

Like usual, I agree with barbitu8, although I think there may be more just a few states that still recognize it in some form. Exapno’s link has a list of 10-15, depending on how you count them.

One or two additional comments. The full faith and credit clause of the U.S. Constitution requires a state to recognize the effect of a sister state’s marriage law, so a married couple from one state is still treated as married in another if they travel or move there. In most cases, that means that a past common law marriage based upon cohabitation in State A will be recognized by State B if the couple moves there, even if State B’s laws wouldn’t allow the creation of a common-law marriage based on cohabitation in State B.

There’s been a case or two where a couple shared accomodations in a common law marriage state, and one of them later claimed inheritance or other property rights on a common law marriage theory, even though the overwhelming majority of their association was in another state. It has to be more than a vacation, but there’s a gray area, especially if you rent or own property there. The holding out as married requirement is arguably met if you register in a hotel as a married couple, for example.

Oh, and just to clear up a possible point of confusion - although there may be no common law divorce, common law marriages can be ended by regular, statutory divorce laws.

Cecil Adams on Are ships’ captains allowed to marry people at sea?

Thanks for the kind words. “Few” is a relative term. I once counted 11 states plus the DC.

Cecil Adam’s column is sort of ambiguous, using the terms “properly consent” and “live together.” Consent to what? Living together? The parties must intend to be married. I would replace “properly consent” with “the intent to be married.” Also “let the neighbors think they are married” is not precise enough. They must hold themselves out to the public as being married. They may allow their neighbors to think they are married, but if they don’t sign legal documents as husband and wife, don’t leave insurance policies to their respective surviving spouses by name, and don’t indicate on other legal documents that they are married, that would not suffice. Although it is, of course, a factor.

Common law marriage in the UK is a widely believed myth that has no legal basis .

It used to be recognised in England & Wales, but no longer and has never been recognised in the Scottish legal system.

Here’s my favorite common law marriage case:
(William Hurt ultimately won - no common law marriage was found.)

The law in Saskatchewan is that married couples, opposite-sex couples living in a “spousal relationship” (i.e. - equivalent to what’s called a common law marriage in other jurisdictions) and same-sex couples living in a spousal relationship all have the same rights of family property upon break-up of the relationship, same support obligations, same intestate succession rights, and so on.

In Iowa, which does recognize it, the key is a public holding out as husband and wife. Sometime the holding out is a scrivener’s error, as when the guy who writes the real estate contract designates the buyers as husband and wife and either nobody notices or nobody objects and lets the thing go into the land transfer records.

I wasn’t talking about actual common law marriage, nor about some of the inheritance issues mentioned in those links. I primarily was talking about benefits - such as on this[/urk]Housing Benefit PDF: “‘Partner’ means someone you are married to or a person of the opposite sex you live with as if you were married”. (I note that this one does exclude gay couples.)

I remember when my uncle passed away, and I was shocked to find out that he and my aunt weren’t married on paper. My aunt had to do a little shuffling about to prove her “common law” marriage to him in order to get the benefits she had coming to her upon his death.

I do remember someone from the gov’t calling my mom (her sister) and asking her stuff such as “did they act in public as if they were married?” “did they live together” (yes and yes).

Also, this is just a hazy memory but I recall some discussion about her being grandfathered in to these terms. If they hadn’t been “married” for 18 years (the law had since changed) then no dice.

At the federal government department I work in, it’s a year. The official definition (for my department anyway) is “two people, regardless of sex, who have lived together in a conjugal relationship for at least one year”. We usually request a signed declaration and stuff like joint tax returns, wills or insurance policies in place of a marriage certificate for proof.

The impression I get from a bit of research I’ve done on the subject, is that the 6 month mark is recognized for the purpose of filing income taxes and what not. I believe the 1 year for benefits is pretty well the norm for all government employees, as well as private employees. (Companies here that offer benefits to “spouses” are not allowed to exluded gay spouses from their plans.)

We’re lucky - the crown corp I work for in British Columbia recognizes ‘common law spouse’ as the person you live with - they don’t care how long you’ve been together - if you’re in a ‘common law’ type relationship, they’ll extend full benefits to your partner as well as yourself.

I believe in Canada for income tax, it applies to people who have lived together for 6 months in the taxation year. So if you moved in together in October 2003, you wouldn’t have to ‘declare’ your spouse on your 2003 tax return (filed in the spring of 2004) - you could wait until your 2004 tax return (filed in 2005).

Hmmmm … not sure if I’ve contributed much to this thread now that I look back.
Oh well. :slight_smile:


Stainz, I don’t know that I’d characterise that as a matter of luck - it may well be legally required in B.C.

Under the B.C. Human Rights Code, an employer cannot discriminate in hiring or conditions of work based on marital status:

All the usual disclaimers about legal advice apply - I’m just contributing to a general discussion on a matter of public interest, I’m not familiar with B.C. law, and if you need to know your legal position, you should consult a B.C. lawyer.

I actually don’t know what the requirements are for employee benefits, I was only referring to the requirements of our claimants for filing taxes, or applying for Canada Pension Plan credit splitting or the Guaranteed Income Supplement or any spousal Allowance. I’ve worked for a couple of different departments in the government, including Canada Revenue Agency, and I’ve never heard of 6 months being considered.

For CRA, the term was always “living with and having a relationship with for 12 continuous months” (with some exceptions when children are involved) and for Old Age Security & CPP, it was “living together in a conjugal relationship for at least one year”.

Can you send me any links to stuff you’ve seen that said 6 months? I’m just curious if maybe there are exceptions I’m not aware of.