To be defined as a common-law marriage within the states that allow it, the two people must: agree that they are married, live together, and present themselves as husband and wife. Common-law marriage is generally a non-ceremonial relationship that requires "a positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, cohabitation sufficient to warrant a fulfillment of necessary relationship of man and wife, and an assumption of marital duties and obligations." Black's Law Dictionary 277 (6th ed. 1990).
Before modern domestic relations statutes, couples became married by a variety of means that developed from custom. These became the elements of a "common-law marriage," or a marriage that arose through the couple's conduct, instead of through a ceremony. In many ways, the theory of common-law marriage is one of estoppel - meaning that couples who have told the world they are married should not be allowed to claim they aren't when in a dispute between themselves.
Currently, only nine states (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma and Texas) and the District of Columbia recognize common-law marriages. In addition, five states have "grandfathered" common-law marriage (Georgia, Idaho, Ohio, Oklahoma and Pennsylvania) allowing those established before a certain date to be recognized. New Hampshire recognizes common-law marriage for purposes of probate only, and Utah recognizes common-law marriages only if they have been validated by a court or administrative order.
- District of Columbia
- Iowa (Iowa Code Ann. §. 595.11)
- Montana (Mont. Code Ann. § 26-1-602, 40-1-403)
- New Hampshire
- Oklahoma (Okla. Stat. Ann. tit. 43, § 1)
- Pennsylvania (23 Penn. Cons. Stat. § 1103)
- Rhode Island
- South Carolina
- Texas (Tex. Fam. Code Ann. § 2.401)
- Utah (Utah Code Ann.§ 30-1-4.5)
Georgia: Only for common-law marriages formed before January 1, 1997 (1996 Georgia Act 1021).
Idaho: Only for common-law marriages formed before January 1, 1996 (Idaho Code § 32-201).
Kansas: law prohibits recognition of common law marriage if either party is under 18 years of age. (2002 Kan. Sess. Laws, SB 486, §23-101).
New Hampshire: Common law marriages effective only at death. (N.H. Rev. Stat. Ann § 457:39).
Ohio: Only for common-law marriages formed before October 10, 1991 (Lyons v. Lyons 621 N.E. 2d 718 (Ohio App. 1993)).
Oklahoma: Only for common-law marriage formed before November 1, 1998. (1998 Okla. SB 1076).
Pennsylvania: law was amended to read "No common-law marriage contracted after January 1, 2005 shall be valid." (Pennsylvania Statues, Section 1103)
Texas: calls it an "informal marriage," rather than a common-law marriage. Under § 2.401 of the Texas Family Code, an informal marriage can be established either by declaration (registering at the county courthouse without having a ceremony), or by meeting a three-prong test showing evidence of (1) an agreement to be married; (2) cohabitation in Texas; and (3) representation to others that the parties are married. A 1995 update adds an evidentiary presumption that there was no marriage if no suit for proof of marriage is filed within two years of the date the parties separated and ceased living together.
Utah: Administrative order establishes that it arises out of a contract between two consenting parties who: (a) are capable of giving consent; (b) are legally capable of entering a solemnized marriage; (c) have cohabited; (d) mutually assume marital rights, duties, and obligations; and (e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife. The determination or establishment of such a marriage must occur during the relationship or within one year following the termination of that relationship.
Because the doctrine of common-law marriage developed before the advent of modern domestic relations statutes, in some states the law exists in case law rather than legislation. (For example: Piel v. Brown, 361 So. 2d 90, 93 (Ala. 1978); Deter v. Deter, 484 P.2d 805, 806 (Colo. Ct. App. 1971); Johnson v. Young, 372 A.2d 992, 994 (D.C. 1977); Smith v. Smith, 161 Kan. 1, 3, 165 P.2d 593, 594 (1946); Sardonis v. Sardonis, 106 R.I. 469, 472, 261 A.2d 22, 23 (1970); Johnson v. Johnson, 235 S.C. 542, 550, 112 S.E.2d 647, 651 (1960)).
Tennessee has employed a doctrine of "estoppel to deny marriage." See Note, Informal Marriages in Tennessee - Marriage by Estoppel, by Prescription and by Ratification, 3 VAND. L. REV. 610, 614-15 (1950).
Many states have abolished common-law marriage by statute, because common-law marriage was seen as encouraging fraud and condoning vice, debasing conventional marriage, and as no longer necessary with increased access to clergy and justices of the peace. (For example: Cal. Civ. Code § 4100; N.Y. Dom. Rel. Law § 11 ; Furth v. Furth, 133 S.W. 1037, 1038-39 (Ark. 1911); Owens v. Bentley, 14 A.2d 391, 393 (Del. Super. 1940); Milford v. Worcester, 7 Mass. 48 (1910)).
Among those states that permit a common-law marriage to be contracted, the elements of a common-law marriage vary slightly from state to state. The indispensable elements are (1) cohabitation and (2) "holding out." "Holding out" means that the couple tells the world that they are husband and wife through their conduct, such as the woman's assumption of the man's surname, filing a joint federal income tax return, etc. This means that mere cohabitation cannot, by itself, rise to the level of constituting a marriage. Of course, many disputes arise when facts (such as intentions of the parties or statements made to third parties) are in controversy.
The U.S. Constitution requires every state to accord "full faith and credit" to the laws of its sister states. Thus, a common-law marriage that is validly contracted in a state where such marriages are legal will be valid even in states where such marriages cannot be contracted and may be contrary to public policy.
There is no such thing as common-law divorce. Once parties are married, regardless of the manner in which their marriage is contracted, they can only be divorced by appropriate means in the place where they ask for the divorce. That means, in all 50 states, only by a court order.
For more information regarding marriage and/or divorce, call NCSL at 303-364-7700 or email@example.com.
Last reviewed 4/19/11