Common-law marriage in the United States
Encyclopedia
Common-law marriage
in the United States was affirmed by the United States Supreme Court in Meister v. Moore (96 U.S. 76 (1877)), which ruled that Michigan
had not abolished common law marriage merely by producing a statute establishing rules for the solemnization of marriages. Common-law marriage can still be contracted in 11 states and the District of Columbia, can no longer be contracted in 26 states, and was never permitted in 13 states. The requirements for a common-law marriage to be validly contracted differ from state to state. Nevertheless, all states — including those that have abolished the contract of common-law marriage within their boundaries — recognize common-law marriages lawfully contracted in those jurisdictions that permit it. Some states that do not recognize common law marriage also afford legal rights to parties to a putative marriage
(i.e. in circumstances when someone who was not actually married, e.g. due to a failure to obtain or complete a valid marriage license from the proper jurisdiction, believed in good faith that he or she was married) that arise before a marriage's invalidity is discovered.
had not abolished common-law marriage merely by producing a statute which established rules for the solemnization of marriages, because it did not require marriages to be solemnized: it required only that, if a marriage was solemnized, it could be solemnized only as provided by law. Otherwise, the court found that, as the right to marry existed at common law, the right to marriage according to the tradition of that common law remained valid until such time as state law affirmatively changed it. The Court did not find it necessary to pass special legislation specifically outlawing the common law contract of a marriage, but it was sufficient for a state's general marriage statutes to clearly indicate no marriage would be valid unless the statutory requirements enumerated were followed.
While a number of U.S. states recognize either same-sex marriage, or domestic partnerships with the same legal incidents, as marriage, no U.S. state except Iowa, where the law is untested, currently recognizes same sex common-law marriages. The Federal Defense of Marriage Act permits any state to not recognize same-sex marriages from another state, and provides that the federal government will not recognize any same-sex marriages.
, Colorado
, Iowa
, Kansas
, Montana
, New Hampshire
(posthumously), New Mexico
, Rhode Island
, South Carolina
, Texas
, and Utah
) and in the District of Columbia.
Note there is no such thing as "common-law divorce" — that is, you cannot get out of a common-law marriage as easily as you can get into one. Only the contract of the marriage is irregular; everything else about the marriage is perfectly regular. People who marry per the old common law tradition must petition the appropriate court in their state for a dissolution of marriage.
The situation in Pennsylvania
became unclear in 2003 when an intermediate appellate court purported to abolish common-law marriage (PNC Bank Corporation v. Workers' Compensation Appeal Board (Stamos), 831 A.2d 1269 (Pa. Cmwlth. 2003)) even though the state Supreme Court had recognized (albeit somewhat reluctantly) the validity of common-law marriages only five years before. (Staudenmayer v. Staudenmayer, 552 Pa. 253, 714 A.2d 1016 (1998).) The Pennsylvania legislature resolved most of the uncertainty by abolishing common-law marriages entered into after January 1, 2005. (Act 144 of 2004, amending 23 Pa.C.S. Section 1103.) However, it is still not certain whether Pennsylvania courts will recognize common-law marriages entered into after the date of the Stamos decision and before the effective date of the statute (i.e., after September 17, 2003, and on or before January 1, 2005), because the other intermediate appellate court has suggested that it might not follow the Stamos decision. (Compare Bell v. Ferraro, 2004 PA Super 144, 849 A.2d 1233 (4/28/2004), with Stackhouse v. Stackhouse, 2004 PA Super 427, 862 A.2d 102 (11/10/2004).)
Common-law marriages can no longer be contracted in the following states, as of the dates given: Alaska
(1917), Arizona
(1913), California
(1895), Florida
(1968), Georgia
(1997), Hawaii
(1920), Idaho
(1996), Illinois
(1905), Indiana
(1958), Kentucky
(1852), Maine
(1652, when it became part of Massachusetts; then a state, 1820), Massachusetts
(1646), Michigan
(1957), Minnesota
(1941), Mississippi
(1956), Missouri
(1921), Nebraska
(1923), Nevada
(1943), New Mexico
(1860), New Jersey
(1939), New York
(1933, also 1902–1908), North Dakota
(1890), Ohio
(1991), Oklahoma
(Nov. 2010), Pennsylvania
(2005), South Dakota
(1959), and Wisconsin
(1917).
The following states never permitted common-law marriages: Arkansas
, Connecticut
, Delaware
, Louisiana
, Maryland
, North Carolina
, Oregon
, Tennessee
, Vermont
, Virginia
, Washington, West Virginia
, California
, and Wyoming
. Note that common-law marriage was never known in Louisiana
, which is a French civil or code law jurisdiction, not an English common law jurisdiction. As such, it is a former Council of Trent
jurisdiction.
Nevertheless, all states — including those that have abolished the contract of common-law marriage within their boundaries — recognize common-law marriages lawfully contracted in those jurisdictions that permit it. This is because all states provide that validity of foreign marriage is determined per lex loci celebrationis
- that is, "by law of the place of celebration." Thus, a marriage validly contracted in Ohio, including common-law marriages entered into before that state abolished new common-law marriages in 1991, is valid in Indiana, even if it could not be legally contracted in Indiana because Ohio law is the basis of its validity. However, a marriage that was not lawfully contracted in Ohio would not be valid in Indiana even if it could have been lawfully contracted there, by the same principle.
Common law marriage determinations frequently refrain from identifying a specific date of marriage in common law marriage cases when this is not necessary, because often, there is no one marriage ceremony that establishes this date. Even when a relationship begins in a state that does not recognize common law marriage, a common law marriage between the parties is often recognized if that relationship continues at a time when the parties relocate to a state that does recognize common law marriage. It is not uncommon for someone to claim to be a spouse based upon time the couple spent together in a common law marriage state even after the couple leaves that state. The case law does not definitively establish whether a brief presence in a common law marriage state by a couple who otherwise are eligible to have a common law marriage, that does not establish domicile in that state, gives rise to a common law marriage that must be recognized in a state that does not itself have common law marriage.
Additionally, some courts have held that all marriages performed within the U.S. must be valid in all states under the Full Faith and Credit Clause
of the U.S. Constitution. (See e.g. Thomas v. Sullivan, 922 F.2d 132, 134 (2d Cir. 1990)) However, none of the cases to date has actually used the Clause to validate a sister-state marriage, and the question shows no sign of reaching the U.S. Supreme Court - whose decision would apply nationally, not just locally or within a federal circuit.
(i.e. post-marital sexual intercourse) is also an element of common law marriage. Colorado, by statute, no longer recognizes common law marriages entered by minors in Colorado, and also does not recognize foreign common law marriages entered into by minors, even if that marriage would have been valid where entered into under local law. See Section 14-10-109.5, Colorado Revised Statutes. The constitutionality of this limitation as applied to foreign marriages has not been tested in litigation.
Colorado is the only U.S. state, other than Montana, to recognize both putative marriage
and common law marriage.
of a common-law marriage.
in Texas; and (3) representation to others that the parties are married. In the actual wording of the law there is no specification on the length of time that a couple must cohabitate to meet the second requirement of the 3-prong test. Under Texas law there is no required period of time of cohabitation and an informal marriage can occur if the couple lives together one day if the other elements, (an agreement to be married and holding out as married to the public) have also occurred. Likewise a couple can live together for 50 years and if they never have an agreement to be married, or hold themselves out to the public as married, their 50 year cohabitation will not make them informally married. If a couple does not commence a proceeding to prove their relationship was a marriage within two years of the end of their cohabitation and relationship there is a legal presumption that they were never informally married, but this presumption is rebuttable. In other words, even after two years a party to the relationship, or another interested party such as their estate, can seek to establish the marriage if they can overcome the presumption. Because this rule is only a presumption, and not a statute of limitations
, a person in Texas that could be informally married should always go through a divorce
proceeding when the relationship ceases or face possible serious legal repercussions.
Common-law marriage
Common-law marriage, sometimes called sui juris marriage, informal marriage or marriage by habit and repute, is a form of interpersonal status that is legally recognized in limited jurisdictions as a marriage even though no legally recognized marriage ceremony is performed or civil marriage...
in the United States was affirmed by the United States Supreme Court in Meister v. Moore (96 U.S. 76 (1877)), which ruled that Michigan
Michigan
Michigan is a U.S. state located in the Great Lakes Region of the United States of America. The name Michigan is the French form of the Ojibwa word mishigamaa, meaning "large water" or "large lake"....
had not abolished common law marriage merely by producing a statute establishing rules for the solemnization of marriages. Common-law marriage can still be contracted in 11 states and the District of Columbia, can no longer be contracted in 26 states, and was never permitted in 13 states. The requirements for a common-law marriage to be validly contracted differ from state to state. Nevertheless, all states — including those that have abolished the contract of common-law marriage within their boundaries — recognize common-law marriages lawfully contracted in those jurisdictions that permit it. Some states that do not recognize common law marriage also afford legal rights to parties to a putative marriage
Putative marriage
A putative marriage is an apparently valid marriage, entered into in good faith on the part of at least one of the partners, but that is legally invalid due to a technical impediment, such as a preexistent marriage on the part of one of the partners. Unlike someone in a common-law, statutory, or...
(i.e. in circumstances when someone who was not actually married, e.g. due to a failure to obtain or complete a valid marriage license from the proper jurisdiction, believed in good faith that he or she was married) that arise before a marriage's invalidity is discovered.
General principles
The status of common-law marriage in the United States varies by state. In Meister v. Moore, 96 U.S. 76 (1877), the United States Supreme Court, relying on Hutchins v. Kimmell, 31 Mich. 126 (1875) ruled that MichiganMichigan
Michigan is a U.S. state located in the Great Lakes Region of the United States of America. The name Michigan is the French form of the Ojibwa word mishigamaa, meaning "large water" or "large lake"....
had not abolished common-law marriage merely by producing a statute which established rules for the solemnization of marriages, because it did not require marriages to be solemnized: it required only that, if a marriage was solemnized, it could be solemnized only as provided by law. Otherwise, the court found that, as the right to marry existed at common law, the right to marriage according to the tradition of that common law remained valid until such time as state law affirmatively changed it. The Court did not find it necessary to pass special legislation specifically outlawing the common law contract of a marriage, but it was sufficient for a state's general marriage statutes to clearly indicate no marriage would be valid unless the statutory requirements enumerated were followed.
While a number of U.S. states recognize either same-sex marriage, or domestic partnerships with the same legal incidents, as marriage, no U.S. state except Iowa, where the law is untested, currently recognizes same sex common-law marriages. The Federal Defense of Marriage Act permits any state to not recognize same-sex marriages from another state, and provides that the federal government will not recognize any same-sex marriages.
Income Tax
A common-law marriage is recognized for federal tax purposes if it is recognized by the state where the taxpayers currently live, or in the state where the common-law marriage began. If the marriage is recognized under the law and customs of the state in which the marriage takes place (even if the state is a foreign country), the marriage is valid (Rev. Rul. 58-66). Practitioners should be alert to the specific state requirements necessary for their clients contemplating filing joint returns under common-law marriage statutes.Availability by state
Common-law marriage can still be contracted in eleven states (AlabamaAlabama
Alabama is a state located in the southeastern region of the United States. It is bordered by Tennessee to the north, Georgia to the east, Florida and the Gulf of Mexico to the south, and Mississippi to the west. Alabama ranks 30th in total land area and ranks second in the size of its inland...
, Colorado
Colorado
Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...
, Iowa
Iowa
Iowa is a state located in the Midwestern United States, an area often referred to as the "American Heartland". It derives its name from the Ioway people, one of the many American Indian tribes that occupied the state at the time of European exploration. Iowa was a part of the French colony of New...
, Kansas
Kansas
Kansas is a US state located in the Midwestern United States. It is named after the Kansas River which flows through it, which in turn was named after the Kansa Native American tribe, which inhabited the area. The tribe's name is often said to mean "people of the wind" or "people of the south...
, Montana
Montana
Montana is a state in the Western United States. The western third of Montana contains numerous mountain ranges. Smaller, "island ranges" are found in the central third of the state, for a total of 77 named ranges of the Rocky Mountains. This geographical fact is reflected in the state's name,...
, New Hampshire
New Hampshire
New Hampshire is a state in the New England region of the northeastern United States of America. The state was named after the southern English county of Hampshire. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Atlantic Ocean to the east, and the Canadian...
(posthumously), New Mexico
New Mexico
New Mexico is a state located in the southwest and western regions of the United States. New Mexico is also usually considered one of the Mountain States. With a population density of 16 per square mile, New Mexico is the sixth-most sparsely inhabited U.S...
, Rhode Island
Rhode Island
The state of Rhode Island and Providence Plantations, more commonly referred to as Rhode Island , is a state in the New England region of the United States. It is the smallest U.S. state by area...
, South Carolina
South Carolina
South Carolina is a state in the Deep South of the United States that borders Georgia to the south, North Carolina to the north, and the Atlantic Ocean to the east. Originally part of the Province of Carolina, the Province of South Carolina was one of the 13 colonies that declared independence...
, Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
, and Utah
Utah
Utah is a state in the Western United States. It was the 45th state to join the Union, on January 4, 1896. Approximately 80% of Utah's 2,763,885 people live along the Wasatch Front, centering on Salt Lake City. This leaves vast expanses of the state nearly uninhabited, making the population the...
) and in the District of Columbia.
Note there is no such thing as "common-law divorce" — that is, you cannot get out of a common-law marriage as easily as you can get into one. Only the contract of the marriage is irregular; everything else about the marriage is perfectly regular. People who marry per the old common law tradition must petition the appropriate court in their state for a dissolution of marriage.
The situation in Pennsylvania
Pennsylvania
The Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
became unclear in 2003 when an intermediate appellate court purported to abolish common-law marriage (PNC Bank Corporation v. Workers' Compensation Appeal Board (Stamos), 831 A.2d 1269 (Pa. Cmwlth. 2003)) even though the state Supreme Court had recognized (albeit somewhat reluctantly) the validity of common-law marriages only five years before. (Staudenmayer v. Staudenmayer, 552 Pa. 253, 714 A.2d 1016 (1998).) The Pennsylvania legislature resolved most of the uncertainty by abolishing common-law marriages entered into after January 1, 2005. (Act 144 of 2004, amending 23 Pa.C.S. Section 1103.) However, it is still not certain whether Pennsylvania courts will recognize common-law marriages entered into after the date of the Stamos decision and before the effective date of the statute (i.e., after September 17, 2003, and on or before January 1, 2005), because the other intermediate appellate court has suggested that it might not follow the Stamos decision. (Compare Bell v. Ferraro, 2004 PA Super 144, 849 A.2d 1233 (4/28/2004), with Stackhouse v. Stackhouse, 2004 PA Super 427, 862 A.2d 102 (11/10/2004).)
Common-law marriages can no longer be contracted in the following states, as of the dates given: Alaska
Alaska
Alaska is the largest state in the United States by area. It is situated in the northwest extremity of the North American continent, with Canada to the east, the Arctic Ocean to the north, and the Pacific Ocean to the west and south, with Russia further west across the Bering Strait...
(1917), Arizona
Arizona
Arizona ; is a state located in the southwestern region of the United States. It is also part of the western United States and the mountain west. The capital and largest city is Phoenix...
(1913), California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
(1895), Florida
Florida
Florida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...
(1968), Georgia
Georgia (U.S. state)
Georgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...
(1997), Hawaii
Hawaii
Hawaii is the newest of the 50 U.S. states , and is the only U.S. state made up entirely of islands. It is the northernmost island group in Polynesia, occupying most of an archipelago in the central Pacific Ocean, southwest of the continental United States, southeast of Japan, and northeast of...
(1920), Idaho
Idaho
Idaho is a state in the Rocky Mountain area of the United States. The state's largest city and capital is Boise. Residents are called "Idahoans". Idaho was admitted to the Union on July 3, 1890, as the 43rd state....
(1996), Illinois
Illinois
Illinois is the fifth-most populous state of the United States of America, and is often noted for being a microcosm of the entire country. With Chicago in the northeast, small industrial cities and great agricultural productivity in central and northern Illinois, and natural resources like coal,...
(1905), Indiana
Indiana
Indiana is a US state, admitted to the United States as the 19th on December 11, 1816. It is located in the Midwestern United States and Great Lakes Region. With 6,483,802 residents, the state is ranked 15th in population and 16th in population density. Indiana is ranked 38th in land area and is...
(1958), Kentucky
Kentucky
The Commonwealth of Kentucky is a state located in the East Central United States of America. As classified by the United States Census Bureau, Kentucky is a Southern state, more specifically in the East South Central region. Kentucky is one of four U.S. states constituted as a commonwealth...
(1852), Maine
Maine
Maine is a state in the New England region of the northeastern United States, bordered by the Atlantic Ocean to the east and south, New Hampshire to the west, and the Canadian provinces of Quebec to the northwest and New Brunswick to the northeast. Maine is both the northernmost and easternmost...
(1652, when it became part of Massachusetts; then a state, 1820), Massachusetts
Massachusetts
The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...
(1646), Michigan
Michigan
Michigan is a U.S. state located in the Great Lakes Region of the United States of America. The name Michigan is the French form of the Ojibwa word mishigamaa, meaning "large water" or "large lake"....
(1957), Minnesota
Minnesota
Minnesota is a U.S. state located in the Midwestern United States. The twelfth largest state of the U.S., it is the twenty-first most populous, with 5.3 million residents. Minnesota was carved out of the eastern half of the Minnesota Territory and admitted to the Union as the thirty-second state...
(1941), Mississippi
Mississippi
Mississippi is a U.S. state located in the Southern United States. Jackson is the state capital and largest city. The name of the state derives from the Mississippi River, which flows along its western boundary, whose name comes from the Ojibwe word misi-ziibi...
(1956), Missouri
Missouri
Missouri is a US state located in the Midwestern United States, bordered by Iowa, Illinois, Kentucky, Tennessee, Arkansas, Oklahoma, Kansas and Nebraska. With a 2010 population of 5,988,927, Missouri is the 18th most populous state in the nation and the fifth most populous in the Midwest. It...
(1921), Nebraska
Nebraska
Nebraska is a state on the Great Plains of the Midwestern United States. The state's capital is Lincoln and its largest city is Omaha, on the Missouri River....
(1923), Nevada
Nevada
Nevada is a state in the western, mountain west, and southwestern regions of the United States. With an area of and a population of about 2.7 million, it is the 7th-largest and 35th-most populous state. Over two-thirds of Nevada's people live in the Las Vegas metropolitan area, which contains its...
(1943), New Mexico
New Mexico
New Mexico is a state located in the southwest and western regions of the United States. New Mexico is also usually considered one of the Mountain States. With a population density of 16 per square mile, New Mexico is the sixth-most sparsely inhabited U.S...
(1860), New Jersey
New Jersey
New Jersey is a state in the Northeastern and Middle Atlantic regions of the United States. , its population was 8,791,894. It is bordered on the north and east by the state of New York, on the southeast and south by the Atlantic Ocean, on the west by Pennsylvania and on the southwest by Delaware...
(1939), New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
(1933, also 1902–1908), North Dakota
North Dakota
North Dakota is a state located in the Midwestern region of the United States of America, along the Canadian border. The state is bordered by Canada to the north, Minnesota to the east, South Dakota to the south and Montana to the west. North Dakota is the 19th-largest state by area in the U.S....
(1890), Ohio
Ohio
Ohio is a Midwestern state in the United States. The 34th largest state by area in the U.S.,it is the 7th‑most populous with over 11.5 million residents, containing several major American cities and seven metropolitan areas with populations of 500,000 or more.The state's capital is Columbus...
(1991), Oklahoma
Oklahoma
Oklahoma is a state located in the South Central region of the United States of America. With an estimated 3,751,351 residents as of the 2010 census and a land area of 68,667 square miles , Oklahoma is the 28th most populous and 20th-largest state...
(Nov. 2010), Pennsylvania
Pennsylvania
The Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
(2005), South Dakota
South Dakota
South Dakota is a state located in the Midwestern region of the United States. It is named after the Lakota and Dakota Sioux American Indian tribes. Once a part of Dakota Territory, South Dakota became a state on November 2, 1889. The state has an area of and an estimated population of just over...
(1959), and Wisconsin
Wisconsin
Wisconsin is a U.S. state located in the north-central United States and is part of the Midwest. It is bordered by Minnesota to the west, Iowa to the southwest, Illinois to the south, Lake Michigan to the east, Michigan to the northeast, and Lake Superior to the north. Wisconsin's capital is...
(1917).
The following states never permitted common-law marriages: Arkansas
Arkansas
Arkansas is a state located in the southern region of the United States. Its name is an Algonquian name of the Quapaw Indians. Arkansas shares borders with six states , and its eastern border is largely defined by the Mississippi River...
, Connecticut
Connecticut
Connecticut is a state in the New England region of the northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, and the state of New York to the west and the south .Connecticut is named for the Connecticut River, the major U.S. river that approximately...
, Delaware
Delaware
Delaware is a U.S. state located on the Atlantic Coast in the Mid-Atlantic region of the United States. It is bordered to the south and west by Maryland, and to the north by Pennsylvania...
, Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
, Maryland
Maryland
Maryland is a U.S. state located in the Mid Atlantic region of the United States, bordering Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware to its east...
, North Carolina
North Carolina
North Carolina is a state located in the southeastern United States. The state borders South Carolina and Georgia to the south, Tennessee to the west and Virginia to the north. North Carolina contains 100 counties. Its capital is Raleigh, and its largest city is Charlotte...
, Oregon
Oregon
Oregon is a state in the Pacific Northwest region of the United States. It is located on the Pacific coast, with Washington to the north, California to the south, Nevada on the southeast and Idaho to the east. The Columbia and Snake rivers delineate much of Oregon's northern and eastern...
, Tennessee
Tennessee
Tennessee is a U.S. state located in the Southeastern United States. It has a population of 6,346,105, making it the nation's 17th-largest state by population, and covers , making it the 36th-largest by total land area...
, Vermont
Vermont
Vermont is a state in the New England region of the northeastern United States of America. The state ranks 43rd in land area, , and 45th in total area. Its population according to the 2010 census, 630,337, is the second smallest in the country, larger only than Wyoming. It is the only New England...
, Virginia
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
, Washington, West Virginia
West Virginia
West Virginia is a state in the Appalachian and Southeastern regions of the United States, bordered by Virginia to the southeast, Kentucky to the southwest, Ohio to the northwest, Pennsylvania to the northeast and Maryland to the east...
, California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
, and Wyoming
Wyoming
Wyoming is a state in the mountain region of the Western United States. The western two thirds of the state is covered mostly with the mountain ranges and rangelands in the foothills of the Eastern Rocky Mountains, while the eastern third of the state is high elevation prairie known as the High...
. Note that common-law marriage was never known in Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
, which is a French civil or code law jurisdiction, not an English common law jurisdiction. As such, it is a former Council of Trent
Council of Trent
The Council of Trent was the 16th-century Ecumenical Council of the Roman Catholic Church. It is considered to be one of the Church's most important councils. It convened in Trent between December 13, 1545, and December 4, 1563 in twenty-five sessions for three periods...
jurisdiction.
Nevertheless, all states — including those that have abolished the contract of common-law marriage within their boundaries — recognize common-law marriages lawfully contracted in those jurisdictions that permit it. This is because all states provide that validity of foreign marriage is determined per lex loci celebrationis
Lex loci celebrationis
The lex loci celebrationis is the Latin term for "law of the place where the marriage is celebrated" in the conflict of laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are...
- that is, "by law of the place of celebration." Thus, a marriage validly contracted in Ohio, including common-law marriages entered into before that state abolished new common-law marriages in 1991, is valid in Indiana, even if it could not be legally contracted in Indiana because Ohio law is the basis of its validity. However, a marriage that was not lawfully contracted in Ohio would not be valid in Indiana even if it could have been lawfully contracted there, by the same principle.
Common law marriage determinations frequently refrain from identifying a specific date of marriage in common law marriage cases when this is not necessary, because often, there is no one marriage ceremony that establishes this date. Even when a relationship begins in a state that does not recognize common law marriage, a common law marriage between the parties is often recognized if that relationship continues at a time when the parties relocate to a state that does recognize common law marriage. It is not uncommon for someone to claim to be a spouse based upon time the couple spent together in a common law marriage state even after the couple leaves that state. The case law does not definitively establish whether a brief presence in a common law marriage state by a couple who otherwise are eligible to have a common law marriage, that does not establish domicile in that state, gives rise to a common law marriage that must be recognized in a state that does not itself have common law marriage.
Additionally, some courts have held that all marriages performed within the U.S. must be valid in all states under the Full Faith and Credit Clause
Full Faith and Credit Clause
The Full Faith and Credit Clause is the familiar name used to refer to Article IV, Section 1 of the United States Constitution, which addresses the duties that states within the United States have to respect the "public acts, records, and judicial proceedings of every other state." According to...
of the U.S. Constitution. (See e.g. Thomas v. Sullivan, 922 F.2d 132, 134 (2d Cir. 1990)) However, none of the cases to date has actually used the Clause to validate a sister-state marriage, and the question shows no sign of reaching the U.S. Supreme Court - whose decision would apply nationally, not just locally or within a federal circuit.
Elements required for the establishment of a common-law marriage
The requirements for a common-law marriage to be validly contracted differ in the eleven states which still permit them.Alabama
A valid common law marriage exists when there is capacity to enter into a marriage, the man and woman must be at least 16 with legal parental consent and present agreement or consent to be husband and wife, public recognition of the existence of the marriage, and consummation.Colorado
The elements of a common-law marriage are, with respect to both spouses: (1) holding themselves out as husband and wife; (2) consenting to the marriage; (3) cohabitation; and (4) having the reputation in the community as being married. Different sources disagree regarding the requirement of cohabitation and some indicate that consummationConsummation
Consummation is the initial sexual act made within a marriage.Consummation can also refer to:* Consummation , 1970 recordingSee also:* Consummation of days, event predicted in Daniel Chapter 12, verses 1-4...
(i.e. post-marital sexual intercourse) is also an element of common law marriage. Colorado, by statute, no longer recognizes common law marriages entered by minors in Colorado, and also does not recognize foreign common law marriages entered into by minors, even if that marriage would have been valid where entered into under local law. See Section 14-10-109.5, Colorado Revised Statutes. The constitutionality of this limitation as applied to foreign marriages has not been tested in litigation.
Colorado is the only U.S. state, other than Montana, to recognize both putative marriage
Putative marriage
A putative marriage is an apparently valid marriage, entered into in good faith on the part of at least one of the partners, but that is legally invalid due to a technical impediment, such as a preexistent marriage on the part of one of the partners. Unlike someone in a common-law, statutory, or...
and common law marriage.
The District of Columbia
"A marriage that is legally recognized even though there has been no ceremony and there is no certification of marriage. A common-law marriage exists if the two persons are legally free to marry, if it is the intent of the two persons to establish a marriage, and if the two are known to the community as husband and wife."Iowa
The three elements of a common-law marriage are: (1) the present intent and agreement to be married; (2) continuous cohabitation; and (3) public declaration that the parties are husband and wife. Martin, 681 N.W.2d at 617. The public declaration or holding out to the public is considered to be the acid testAcid Test
Acid test or acid tests may refer to:*Acid test , a chemical or metallurgical test which uses acid, now also used as a general term for "verified", "approved", or "tested" in a large number of fields...
of a common-law marriage.
Kansas
Under Kansas Statute 23-101 (2002), both parties to a common-law marriage must be 18 years old. The three requirements that must coexist to establish a common-law marriage in Kansas are: (1) capacity to marry; (2) a present marriage agreement; and (3) a holding out of each other as husband and wife to the public.Montana
A common-law marriage is established when a couple: "(1) is competent to enter into a marriage, (2) mutually consents and agrees to a common law marriage, and (3) cohabits and is reputed in the community to be husband and wife."New Hampshire
In New Hampshire "[P]ersons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for the period of 3 years, and until the decease of one of them, shall thereafter be deemed to have been legally married." Thus, the state posthumously recognizes common-law marriages to ensure that a surviving spouse inherits without any difficulty.Oklahoma
The criteria for a common-law marriage are: (1) "an actual and mutual agreement... between the spouses to be husband and wife;" (2) "a permanent relationship;" (3) "an exclusive relationship, proved by cohabitation as man and wife;" (4) "and the parties to the marriage must hold themselves out publicly as husband and wife." Common law arrangements that took place in Oklahoma before November 1,1998 are recognized. The ones that occurred after that date have a nebulous character See Estate of Stinchcomb v. Stinchcomb, 674 P.2d 26, 28-29 (Okla. 1983). A bill to ban common-law marriage in Oklahoma failed to receive committee hearing and thus died in 2005.Rhode Island
The criteria for a common-law marriage are: (1) the parties seriously intended to enter into the husband-wife relationship; (2) the parties’ conduct is of such a character as to lead to a belief in the community that they were married.South Carolina
The criteria for a common law marriage are: (1) when two parties have a present intent (usually, but not necessarily, evidenced by a public and unequivocal declaration) to enter into a marriage contract; and (2) "a mutual agreement between the parties to assume toward each other the relation of husband and wife."Texas
Common-law marriage is known as an "informal marriage", which can be established either by declaration (registering at the county courthouse without having a ceremony), or by meeting a 3-prong test showing evidence of (1) an agreement to be married; (2) cohabitationCohabitation
Cohabitation usually refers to an arrangement whereby two people decide to live together on a long-term or permanent basis in an emotionally and/or sexually intimate relationship. The term is most frequently applied to couples who are not married...
in Texas; and (3) representation to others that the parties are married. In the actual wording of the law there is no specification on the length of time that a couple must cohabitate to meet the second requirement of the 3-prong test. Under Texas law there is no required period of time of cohabitation and an informal marriage can occur if the couple lives together one day if the other elements, (an agreement to be married and holding out as married to the public) have also occurred. Likewise a couple can live together for 50 years and if they never have an agreement to be married, or hold themselves out to the public as married, their 50 year cohabitation will not make them informally married. If a couple does not commence a proceeding to prove their relationship was a marriage within two years of the end of their cohabitation and relationship there is a legal presumption that they were never informally married, but this presumption is rebuttable. In other words, even after two years a party to the relationship, or another interested party such as their estate, can seek to establish the marriage if they can overcome the presumption. Because this rule is only a presumption, and not a statute of limitations
Statute of limitations
A statute of limitations is an enactment in a common law legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated...
, a person in Texas that could be informally married should always go through a divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
proceeding when the relationship ceases or face possible serious legal repercussions.