What Common Law Marriage Means in Real Life
The legal myths and facts about a persistently misunderstood concept
on October 9, 2017
Updated on May 16, 2022
One of the most intractable bits of legal misinformation is the belief that after seven years of living together (also known as cohabitation), an unmarried couple becomes subject to “common law marriage.” There are a number of reasons why this is inaccurate.
Common Law Marriage Exists, Depending Where You Are
The phrase, “common law” refers to the recognized body of law that has come into being through means other than legislation, or “statutory law.” Our judicial decisions comprise the primary body of common law today, but originally these laws derived from English law and social customs. Marriage by common law comes from a time when there were fewer formal bureaucratic processes available to all, and the government was satisfied with a social contract based on how people represented themselves to the community. If you lived together, told people you were married, had children, and generally acted as spouses, the law treated you as a married couple. This practice predated marriage licenses.
A modern irony is that what we consider “common law marriage” today is not actually common law at all, in that it’s defined predominantly by statute. It is, rather, a version of legally recognized marital contract that arises without the formal requirements of a license, witnesses and officiated ceremony.
Common law marriage is currently possible in only 10 states, plus the District of Columbia:
- New Hampshire
- Rhode Island
- South Carolina
All 50 states will honor marriages deemed valid in other jurisdictions, and so will recognize common law unions established where legal. Several additional states have more recently eliminated common law marriage, but will continue to recognize marriages that met the requirements prior to the sunset date.
As a general rule, the requirements for a common law marriage in the states where recognized are that the parties to the marriage:
- be over the age of 18
- express their intent to be married and hold themselves out as married (including changing names, filing joint tax returns, having joint bank accounts, etc.)
- live together, and
- not be married to anyone else
While some states may have a duration requirement, several do not. “You can be living together for three days,” says Littleton family law attorney Suzanne Griffiths, of Gutterman Griffiths. “It’s all about how you hold yourselves out to others. If you tell people you’re married, that can be enough.”
The Legal Rights & Protections of Common Law Marriage
If you’re in a state that recognizes common law marriage and you meet the requirements, you’re considered legally married. However, as a matter of practicality, the significance of whether a relationship is a common law marriage doesn’t usually arise until it ends, either upon separation or death. As a legal marriage, common law marriage requires a legal divorce to be terminated.
This is where some big differences can crop up between having a recognized common law marriage and a relationship that is not so viewed. Griffiths says these issues most commonly arise in relationships with significant assets, where one partner is left destitute while the other partner is wealthy. “They may have been together for 20 years; she gave up her career to stay home and raise their children,” says Griffiths, but without a common law marriage, “if all the assets are in his name, she doesn’t get anything.”
Griffiths says the key to a finding of common law marriage in these cases is facts that show the couple held themselves out as in a marital relationship. She’s had cases where this is relatively easy, such as couples who file joint tax returns, or the couple who had an elaborate ceremony in Italy that they called their “wedding” and where they exchanged vows, only it wasn’t a legal proceeding.
“But most are not clean cut at all,” Griffiths says. “He might have put her on the gym membership, or they have some piece of mail referring to them as Mr. and Mrs. It comes down to what evidence you can show.”
As a practical matter, most of these cases end up settling before litigation. Both parties have much to lose, and there are risks in the uncertainty of the outcome.
Another issue that typically arises has to do with inheritance rights. A surviving common law spouse would be entitled to the same rights as a surviving spouse, taking their share of marital property free of inheritance tax. Where the partner is not considered a common law spouse, they would not be entitled to inheritance of anything not specifically designated by will or beneficiary assignment. If a married spouse has not left anything in their will to their husband or wife, the survivor is entitled to a portion of the estate called an “elective share,” which can be up to half of the estate, depending on the length of the marriage.
The issue of the number of years in the marriage can be crucial. If a marriage was more than 10 years, the spouse is entitled to a larger elective share. In this instance, it’s important to show not only that a couple was married, but when the common law marriage began. This, too, requires providing factual evidence about when the elements of common law marriage were first met.
Griffiths says the common law marriage laws in her state are critical. “It provides all the rights of being married, and protects women who have given their lives and then get left high and dry.”
If you’re in a not-formally-married relationship, whether in a common law marriage state or not, and need advice on your legal status and its implications, talk to an experienced family law attorney. For more information on this area, see our overview of family law.