When I was stationed at Shaw AFB, one of the guys in my shop had a common-law wife and children by her. Since we were only acquaintances, I didn’t ask him about what I figured was a personal question. So what is common law marriage and what makes it different from the kind where you get a license, some witnesses and a JP or licensed minister?
~~Baloo
Some states don’t recognize common-law marriage at all.
In those areas that do, the criteria include living together for a certain length of time (I think it’s at least a year) and acting in every respect like man and wife, including sharing a name, refering to each other as husband and wife, owning property jointly, being responsible for each other’s debts, etc. That’s the big difference between common-law and simply living together.
Ceremonial marriages are creatures of statute. Under the “common law,” which wsa the law in England before we became independent, no ceremony was needed. The parties must, however, intend to be married and hold themselves out to the public as married. Those are the two main criteria for a “common law marriage.”
All states now have statutes delineating how a marriage can be effected. Most state courts have concluded that those laws supersede the common law and so those states do not recognize common law marriages.
In a few states, however, I believe NC is one, and there are a few others, the courts have said that the statute is merely another way to get married and people can still get married without using the statute; i.e., under the common law.
12 states and the District of Columbia currently recognize common law marriage:
As a bonus, the above lists “community property” states as well.
Cecil Adams had this to say about common law mariage
see his column Are ships’ captains allowed to marry people at sea?
Yabob, I went to the website and it also states that some states will recognize c/l marriages of another state. Now, I would think that under the full faith & credit provision in the Const., it would be mandatory for all states to recognize a marriage considered valid in another state. Is it possible that some states won’t follow the Const?
IANAL, but I think it’s a matter of interpretation. Somebody better versed in constitutional law might answer this.
Ahhh, Common Law Marriage, one of my favorite topics.
We’ve had several threads about this subject over the months that I’ve been aboard the message board. The most recent thread that discussed it in detail was the thread by Jinx entitled Common Law Marriages.
I would recommend that you review that thread, paying particular attention to my witty and erudite :rolleyes: posts. If my posts there don’t satisfy you, you can try the other threads where I’ve pontificated on the subject: Commonlaw Marriage in Texas, What constitutes a legal marriage (IRS), You Too Can Be a Minister, and Same-sex Marriage (the later two only addressing the point tangentially). Cecil’s summary of the requirements, as quoted by bibliophage, is generally accurate, though his simple formulation hides many subtle wrinkles and details.
The relationship between your service buddy and his “common-law wife” likely falls into my biggest pet peeve about the terminology. Many people – improperly – refer to a long-standing live-in boy/girlfriend as a “common-law husband/wife.” This is incorrect.
If a valid common-law marriage is entered into in a jurisdiction that recognizes them, the couple will legally be husband and wife wherever they go. If a couple lives together and otherwise meets the requirements of common-law marriage in a place that does not recognize such marriages, they are not married.
The reason that the incorrect use of this phrase annoys me so much is it is most often used referred to the relationships minority or impoverished people, with an implied sneer (oh those minorities are living together and having babies again without the “benefit” of marriage). When a Hollywood celebrity couple lives together and has a child before having a formal ceremony the papparazi can crash, they are never referred to as common-law husband/wife.
Anyway, if there any more specific questions you have, I will be happy to spew forth at length.
Bill
IAAL, and yes, in almost every case, a marriage valid in one state will be recognized under the Full Faith and Credit clause of the U.S. Constitution. In the thread by Jinx I mentioned above, there is discussion of several cases of people who generally cohabitated in a state that did not recognize common-law marriage, but were held to be legally married because of a short stay in a state that did recognize it.
There is a little exception to the Full Faith and Credit clause that can come into play in rare instances. Sometimes if a marriage entered into elswhere is found to be against a strong public policy of the state, it will not be recognized. As I recall (and this comes from the dim recesses of law school memory) this is usually only applied in cases of incestuous or extremely underage marriages and the like.
A major open question is what the Full Faith and Credit clause will require if a U.S. state recognizes same-sex marriages.
That very same scenario (gay marriages)has been a timely topic with Hawaii authorizing those marriages. I believe some states have already stated that that is against the public policy of the state and would not be recognized in that state.
It has been said several times, including the prior thread, that under the Full Faith & Credit clause, a valid marriage in one state will be recognized in the other states unless it is against the public policy of that state. However, the prior thread mentioned a 1999 NY case (Sears v. Sears) which held contra. I, of course, haven’t read that case, but if you know of a website that contains it, I’d like to read it.
On a related point…
A girlfriend who I lived with in LA for about 3 years went completely psycho one day, and moved out while I was at work, stealing everything I owned. I came home to a completely empty house. After I read her note, I called the police. When they arrived, I tried to file a theft complaint against her. The LAPD refused to take any action, they refused to even take my complaint. They said she was my common-law wife, and I’d have to recover my personal property through a civil action. What bullshit!
barbitu8, the nycourts.com website from which the Sears v. Sears case was linked only has decisions from the last 6 months, and I do not know of any other web links that would have the case (except for pay legal resarch sites). However, I recall the case from when I posted the link, and the case did not involve the Full Faith and Credit clause. Rather, the court found that the couple did not meet the factual requirements for common law marriage in any of the states they inhabited. In other words, the court found that no common law marriage had been contracted under the laws of any of the places they resided, and therefore there was no marriage to which the New York courts would have to give full faith and credit to.
Chaz, according to this table, there is no common law marriage in California. I would imagine that the LAPD officers were using “common-law wife” in its improper coloquial definition (which I strongly object to). I suspect they declined to take your complaint because they did not want to get embroiled in a domestic dispute.
Well, this was about 15 years ago, and maybe laws were different then. For sure they were INTERPRETED differently then.
There was no domestic dispute, she just left me and took everything I owned, and disappeared. I even pushed this upstairs to the DA’s office, but they gave me the same story, we had lived together long enough that she could make a claim it was joint property through commonlaw marriage, and if I sued in civil court I’d probably only get half my stuff back at best. I don’t know what the hell the DA thought he was doing. I suppose they used this, as you said, as an easy way to deflect stray civilians from making them do their job. And IMHO, that job was to put out a warrant for my ex and whoever drove the truck carrying away my whole house’s contents.