Wow, common-law marriages again. One of my favorite topics. The first month I was on the board there were four threads that addressed the topic of what is required for a marriage to be legal, and there’s been a common-law marriage drought since then. Prior threads in which you can get Billdo’s pearls of wisdom :rolleyes: on common-law marriage include: Commonlaw Marriage in Texas, What constitutes a legal marriage (IRS), You Too Can Be a Minister, and Same-sex Marriage (the last two just address it tangentially). It is clear that there are many misconceptions about common-law marriages out there.
Yes, there is such a thing as a common-law marriage. It comes, not surprisingly, from the common law of Merrie Olde England, which was received here in the U.S. during colonial times, and retained (for the most part) after the American Revolution. I’m not surprised that they remain in Scotland, and the Scottish term for them used by Iguana Boy, marriages by “co-habitation and repute”, is a pretty darn good one.
My belief as to why they formed is that back before there was detailed record-keeping, couples would often simply start living together as husband and wife without any formal ceremony or recognition of the relationship. The courts and authorities recognized these relationships as marriages equal in every respect to those that had been solemnized in a church. (I don’t think they had marriages before civil officials back then, though I’m not sure).
In the U.S. common-law marriage have been abolished in most of the states, but remain in several, including Texas and Colorado (see other threads). New York has abolished common-law marriages, though I’m not sure exactly when.
A typical formulation of what is necessary to form a common-law marriage is that the parties “agreed to be married and after the agreement they lived together as husband and wife and represented to others that they were married.” It is important to realize that to be a valid marriage, all three requirements must be met:
(1) The parties agreed to be married;
(2) the parties lived together as husband and wife; and
(3) the parties represented to others that they were husband and wife.
I don’t know about the requirements that some states may have for living together for a period of time, though I’ll research those. I haven’t heard of them, and I don’t think that North Carolina has them, because of the famous William Hurt case, where an ex-girlfriend of the actor sued him for “divorce”, claiming they had entered into a common-law marriage during the several months they were living together in North Carolina while Hurt was shooting a movie. She lost the case because the court found there was no marriage.
I’ve read the case about the New York couple that travelled to Pennsylvania mentioned by MisterEycks, though I don’t have the citation handy. In that case, the court held that a valid relationship was not established in Pennsylvania. I’ll try to find it and give a citiation or more details.
Perhaps the most interesting development in the field is that many jurisdictions are developing recognition of de facto relationships between people that are not married. This is usually considered most contraversial when de facto status is given to same sex couples, but the point of much wider relevance is that marriage-type rights (e.g. the right to support at the end of the relationship and rights of visitation or custody of children) have been given to mixed-sex couples who cohabitate.
One example of this is found in the Canadian decision mentioned in Cecil’s column on gay marriage, which concerns a provision of Canada’s Family Law Act, which allows a member of a couple living together for more than three years the right to apply for support when the cohabitation breaks up. The Canadian decision held that these rights should be applied to same-sex couples as well as mixed-sex couples. A similar ruling by the New Jersey Supreme Court, holding that the non-biological “parent” in a broken-up lesbian couple would be awarded visitation with a child raised by the couple because she was a “psychological parent.” This case is discussed in the thread asking Gay Marriage a step closer?
If you have any specific questions I’d be happy to take a shot at them.
You don’t have a thing to worry about. I’ll have the jury eating out of my hand. Meanwhile, try to escape.
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