People often tell us that they have a common law husband or wife. They are surprised to learn that California does not recognize “common law” marriage. Common law marriage began in England in medieval times when officials were not readily available to perform marriage ceremonies. A couple that intended to be husband and wife were deemed to be so by “common law.” This carried over to America in frontier times when a couple could be considered to be married without the formalities of a license and ceremony.
In the United States today only 11 states and the District of Columbia recognize common law marriages. These states are: Alabama, Colorado, Iowa, Kansas, Montana, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, and Utah. Three more states recognize common law marriages if they are formed before a certain date. They are Georgia (if created before January 1, 1997), Idaho (if created before January 1, 1996), and Ohio (if created before October 10, 1991). Additionally, New Hampshire recognizes common law marriages for inheritance purposes only (not for divorce).
Each state has a different set of circumstances which must be proved before a common law marriage will be considered valid. In general, these factors are: an intent to be married, cohabitation for a certain period of time, and holding themselves out as husband and wife (for example, referring to the other as their husband or wife, filing joint tax returns, using the same last name). Common law marriages only apply to opposite sex couples. (California does have Domestic Partnerships for same sex couples and opposite sex couples over the age of 65 – look for our future article!)
Interestingly, if you live in a state which does not recognize common law marriage, but used to live in a state that DOES recognize common law marriage, the state you live in may have a common law marriage under the law of the other state.
Also, remember couples who have lived together may have a palimony or “Marvin” action against the other party upon their breakup.
The issue of whether a common law marriage exists becomes relevant upon either death or divorce. The existence of the marriage must be proven to the court using the factors of the particular state. In case of a divorce situation, the parties will then need to proceed with legal divorce. So – as in the case of traditional marriages – it is easier to get into the marriage than to get out of it!
Please e-mail questions or future blog posts to Debra@CrawfordandCrawford.com. This blog is intended to be informative and thought provoking and is not to be relied upon as legal advice in any particular situation.
(Reprinted with Permission from Carmel Valley Newsletter. Thanks Jamison!)