Common-Law Marriage

The term “common-law marriage” refers to marriage recognized in certain states whereby the couples are considered to be legally married even though they did not perform a ceremonial marriage or obtained an official marriage license.  The couples are considered married under the common-law marriage jurisdictions when they live together for a period of time and hold themselves out as married couples.

Common-law marriages can be contracted in the following states:

  • Colorado
  • Iowa
  • Kansas
  • Montana
  • Rhode Island
  • South Carolina
  • Texas
  • Utah
  • District of Columbia.

Reference Desk:

WordNet 3.6

“(n) a marriage relationship created by agreement and cohabitation rather than by ceremony.”

Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1020-21 (Pa. 1998) (quotations and citations omitted).

“There are two kinds of marriage: (1) ceremonial; and (2) common law.  A ceremonial marriage is a wedding or marriage performed by a religious or civil authority with the usual or customary ceremony or formalities.  Because claims for the existence of a marriage in the absence of a certified ceremonial marriage present a fruitful source of perjury and fraud, Pennsylvania courts have long viewed such claims with hostility.  Common law marriages are tolerated, but not encouraged . . . A common law marriage can only be created by an exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife is created by that . . . It is too often forgotten that a common law marriage is a marriage by the express agreement of the parties without ceremony, and almost invariably without a witness, by words — not in futuro or in postea, but — in praesenti, uttered with a view and for the purpose of establishing the relationship of husband and wife.  The common law marriage contract does not require any specific form of words, and all that is essential is proof of an agreement to enter into the legal relationship of marriage at the present time.  The burden to prove the marriage is on the party alleging a marriage, and we have described this as a heavy burden where there is an allegation of a common law marriage.  When an attempt is made to establish a marriage without the usual formalities, the claim must be reviewed with great scrutiny.  Generally words in the present tense are required to prove common law marriage.  Because common law marriage cases arose most frequently because of claims for a putative surviving spouse’s share of an estate, however, we developed a rebuttable presumption in favor of a common law marriage whether there is an absence of testimony regarding the exchange of verba in praesenti.  When applicable, the party claiming a common law marriage who proves: (1) constant cohabitation; and (2) a reputation of marriage which is not partial or divided but is broad and general, raises the rebuttable presumption of marriage.  Constant cohabitation, however, even when conjoined with general reputation are not marriage, they are merely circumstances which give rise to a rebuttable presumption of marriage.”

Hewitt v. Hewitt, 394 N.E. 2d 1204 (Ill. 1979) (quotations and citations omitted).

“Despite its judicial acceptance in many states, the doctrine of common-law marriage is generally frowned on in this country, even in some of the states that have accepted it . . . Judicial criticism has been widespread even in States recognizing the relationship.  [Common-law marriage doctrine has been criticized as] a fruitful source of perjury and fraud.  It tends to weaken the public estimate of the sanctity of the marriage relation.  It puts in doubt the certainty of the rights of inheritance.  It opens the door to false pretenses of marriage and the imposition on estates of suppositious heirs.”

Nestor v. Nestor, 15 Ohio St. 3d 143 (1984) (quotations and citations omitted).

“A common law marriage is the marital joinder of a man and a woman without the benefit of formal papers or procedures.  Such marriages are not favored in Ohio, but have long been recognized as lawful if certain elements or circumstances are found to be present, [which are:] An agreement of marriage in praesenti when made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, they being so treated and reputed in the community and circle in which they move, establishes a valid marriage at common law.”