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Common Law Marriage

Common Law Marriage by State

6/13/2014

Common Law Marriage

Gavel and Gold wedding bandsTo 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.

States With Common Law Marriage

  • Colorado: Common law marriage contracted on or after Sept. 1, 2006, is valid if, at the time the marriage was entered into, both parties are 18 years or older, and the marriage is not prohibited by other law (Colo. Stat. §14-2-109.5)
  • Iowa: Common law marriage for purposes of the Support of Dependents Chapter (Iowa Code §252A.3) Otherwise it is not explicitly prohibited (Iowa Code §595.1A)
  • Kansas: Common law marriage will be recognized if the parties are 18 or older and for purposes of the Divorce and Maintenance Article, proof of common law marriage is allowed as evidence of marriage of the parties (Kan. Stat. §23-2502; Kan. Stat. §23-2714)
  • New Hampshire: Common Law Marriage: “Persons cohabitating and acknowledging each other as husband and wife, and generally reputed to be such, for 3 years shall thereafter be deemed to have been legally married, until one of them dies.” (N.H. Stat. §457:39)
  • South Carolina: allows for marriages without a valid license (S.C. Stat. §20-1-360)
  • Texas: Common Law Marriage in specific circumstances (Tex. Family Law §1.101; Tex. Family Law §2.401-2.402)
  • Utah: Utah Stat. §30-1-4.5

States that May Allow Common Law Marriage

The following two states may allow common law marriages because they do not explicitly prohibit common law marriages.

  • Delaware: Not explicitly prohibited.  Marriage chapter should not be construed to invalidate a common law marriage or other lawful marriage because a license was not obtained (Del. Stat. tit. 13, § 126)
  • Montana: Not strictly prohibited, they are not invalidated by the Marriage Chapter (Mont. Stat. §40-1-403)

States Previously Allowing Common Law Marriage 

States that did allow, and will still recognize as valid, common law marriages entered into prior to the date it was abolished.

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