Common-law marriage
Encyclopedia
Common-law marriage, sometimes called sui juris marriage, informal marriage or marriage by habit and repute, is a form of interpersonal status
that is legally recognized in limited jurisdictions as a marriage
even though no legally recognized marriage ceremony is performed or civil marriage
contract is entered into or the marriage registered in a civil registry. A common-law marriage is legally binding in some common law
jurisdictions but has no legal consequence in others. In some jurisdictions without true common-law marriages, for example, Hungary
, the term "common-law marriage" is used as a synonym for non-marital relationships such as domestic partnership
or reciprocal beneficiaries relationship. A Sui Juris Marriage might only apply in the United States in this form.
Common-law marriage is often contrasted with the ceremonial marriage
.
A marriage is validly contracted, whether according to statute or according to common law, the marriage can be dissolved only by a legal proceeding in the pertinent trial court, usually family court or probate court.
In the U.S. state
of Texas
, a new provision was added to the Family Code; either partner in a common-law marriage has two years after separation to file an action in order to prove that the common-law marriage existed. To use the provision, the separation must have occurred after September 1, 1989.
Since the mid-1990s, the term "common-law marriage" has been used in parts of Europe and Canada to describe various types of domestic partnership
between persons of the same sex as well those of the opposite sex. Although these interpersonal statuses are often, as in Hungary, called "common-law marriage" they differ from true common-law marriage in that they are not legally recognized as "marriages" but are a parallel interpersonal status, known in most jurisdictions as "domestic partnership", "registered partnership", "conjugal union" or "civil union" etc.
Not all agreements break statutes. Some are illegal because they break public policy, which is generally "to discourage any interference with the freedom of choice" (Saskatchewan, Canada, excepted). An agreement forbidding a party to marry or bribing a party to refrain from marriage is considered "Interference with Marriage Relation" or an "Agreement in Restraint of Marriage"; such agreements are typically held to be nonbinding.
The Roman Catholic Church
forbade clandestine marriage at the Fourth Lateran Council (1215), which required all marriages to be announced in a church by a priest. The Council of Trent
(1545–1563) introduced more specific requirements, ruling that in the future a marriage would be valid only if witnessed by the pastor of the parish or the local ordinary (i.e., the bishop of the diocese), or by the delegate of one of said witnesses, the marriage being invalid otherwise, even if witnessed by a Roman Catholic priest. The Tridentine canons did not bind the Protestants or the Eastern Orthodox, but clandestine marriage was impossible for the latter, since marriage required the presence of a priest for validity. England abolished clandestine or common-law marriages in the Marriage Act 1753
, requiring marriages to be performed by a priest of the Church of England
unless the participants in the marriage were Jews or Quakers. The Act applied to Wales
, and to Ireland
after the Act of Union 1800
, although the requirement for a Church of England priest created problems in predominantly Roman Catholic Ireland. The law did not provide an exception there. The Act did not apply to Scotland because by the Acts of Union 1707
Scotland retained its own legal system. To get around the requirements of the Marriage Act, such as minimum age requirements, couples would go to Gretna Green
, in southern Scotland, to get married under Scots law.
The Marriage Act of 1753 also did not apply to Britain's overseas colonies of the time, so common-law marriages continued to be recognised in the future United States and Canada. In the United States, new common-law marriages arising in the state are still recognized in Alabama
, Colorado
, Iowa
, Kansas
, Montana
, Rhode Island
, South Carolina
, Texas
, Utah
, the District of Columbia, under military law
, and in Canada, several provinces recognize them. All U.S. states recognize common-law marriages validly entered into at a time and place where common-law marriage was recognized, although some impose certain public policy exceptions to the recognition of common-law marriages involving minors or persons who would not be entitled to marry in that state for some reason. A common-law marriage occurring under military law is not binding on the non-military spouse (if a mixed marriage) and therefore unlikely to be recognized by some jurisdictions.
All countries in Europe have now abolished "marriage by habit and repute", with Scotland
being the last to do so in 2006.
the term de facto relationship is often used to refer to relationships between any two persons who are not married but are effectively living in certain domestic circumstances. The legal term for such relationships varies by state and territory (however common-law marriage is not used anywhere in Australia):
Although property aspects of these relationships are dealt with under state law, the law relating to children of such relationships is contained in the federal Family Law Act 1975. Most laws dealing with taxation, social welfare, pensions, etc., treat de facto marriages in the same manner as solemnised marriages.
The Family Law Act states that a de facto relationship can exist between two people of different or the same sex and that a person can be in a de facto relationship even if legally married to another person or in a de facto relationship with someone else. Family property laws however, are excepted from jurisdiction when a person is both married and in a de facto relationship at the same time. This exception is due to federal polygamy laws. Same-sex de facto relationships have been recognized in New South Wales since 1999. There are a number of methods by which these relationships are recognized in Australian law and they include the same entitlements as "Christian" marriage.
The federal Marriage Act 1961 provides for marriage, but does not recognize 'common-law marriages'. The former Howard government declared that marriage, as the Christian ideal, can exist only between a man and a woman. This allowed for the overriding of marriage laws instituted in the Act but did not impinge on the legal standing of de facto relationships.
, the legal definition and regulation of common-law marriage fall under provincial
jurisdiction. With the exception of Saskatchewan, a couple must meet the requirements of their province's "capacity to marry" within the Marriage Act
for their common-law marriage to be legally recognized under civil jurisdiction. Saskatchewan does allow married persons to have same time multiple spouses when one conjugal union is a civil marriage and the other conjugal union is a common law marriage (at the same time). Although Saskatchewan's Marriage Act does not stipulate whether a person must have no existing marriage to be eligible to marry, common-law marriages may occur even while one or more civil marriages exist amongst the common law couple.
According to the Canada Revenue Agency
, as of 2007, a common-law relationship is true if at least one of the following applies:
a) the couple has been living in a conjugal relationship for at least 12 continuous months;
b) the couple are parents of a child by birth or adoption; or
c) one of the couple has custody and control of the other partner's child (or had custody and control immediately before the child turned 19 years of age) and the child is wholly dependent on that person for support.
For a full, up to date CRA description go here: Marital Status
In many cases common-law couples have the same rights as married couples under federal law. Various federal laws include "common-law status," which automatically takes effect once two people (of any gender) have lived together in a conjugal relationship for five full years. Common-law partners may be eligible for various federal government spousal benefits. As family law varies between provinces, there are differences between the provinces regarding the recognition of common-law marriage. No province, other than Saskatchewan, sanctions married persons to be capable in family law of having more than one spouse at the same time.
In 1999, after the court case M. v. H.
, the Supreme Court of Canada
decided that same-sex partners
would also be included in common-law relationships. In Saskatchewan, Queen's Bench justices have sanctioned common-law marriages as simultaneously existing in Family law whilst one or more of the spouses were also civilly married to others. There is no requirement for mutual consent to become the "legal spouse of a person who has an existing spouse" {S.51 Saskatchewan Family Property Act.}
, the Ontario Family Law Act
specifically recognizes common-law spouses in sec. 29, dealing with spousal support
issues; the requirements are living together for no less than three years or having a child in common and having "cohabitated in a relationship of some permanence". The three years must be continuous, although a breakup of a few days during the period will not affect a person's status as common-law. No married person may become eligible to begin the three-year countdown to have a recognized common law spouse until divorce from the first spouse occurs. However, the part that deals with marital property excludes common-law spouses, as sec. 2 defines spouses as those who are married together or who entered into a void or voidable marriage
in good faith
. "Good faith" in a voidable marriage cannot occur if one or more of the persons are already married to another. Thus, common-law partners do not always evenly divide property in a breakup, and the courts have to look to concepts such as the constructive or resulting trust
to divide property in an equitable manner between partners. Another difference that distinguishes common-law spouses from married partners is that a common-law partner can be compelled to testify against his or her partner in a court of law.
has never recognized a common-law partnership as a form of marriage. However, many laws in Quebec explicitly apply to common-law partners (called conjoints de fait) in "de facto
unions" (marriages being "de jure
unions"), as they do to marriage spouses. Same-sex partners are also recognized as "conjoints de fait" in de facto unions, for the purpose of social benefit laws. However, common-law partners do not have any legal rights between them, such as alimony
, family patrimony
, compensatory allowance and matrimonial regime
.
A 2002 amendment to the Civil Code recognizes a type of domestic partnership called a civil union
that is similar to marriage and is likewise available to same-sex partners. No citizen of Quebec can be recognized under family law to be in both a civilly married state and a "conjoints de fait" within the same time frame. Divorce from one conjugal relationship must occur before another conjugal relationship may occur in family law.
Same-sex partners can also marry legally in Quebec, as elsewhere in Canada.
In British Columbia
, a person who has lived and cohabited with another person, for a period of at least two years is considered a common law spouse, unless one or both of them were married to another person during this time, according to the "Estate Administration Act".
In Nova Scotia
, a couple must cohabit for two years in a marriage-like relationship, and may not have been married to another person during this time.
In New Brunswick
, a couple must live together for three years or have a natural or adopted child together. They cannot have been married to another person during this time.
In Alberta
, common-law marriage has been subsumed since 2003 under the terms of the Adult Interdependent Relationship Act
, which may additionally apply to any two unrelated people living together in a mutually dependent relationship for three years. Only one interdependent relationship is allowed at a time. In the event either of the common law spouses are married to other persons during this time, neither of the common-law couple can begin to be "interdependent" until divorce from other spouses occurs.
is absent, and many couples choose to avoid a religious marriage or are barred from it. Israeli law makes provisions for common-law spouses, but is murky as to the period of time that needs to pass before a relationship can be recognized as common-law marriage. Unlike marriage, the spouses need to provide proof of their relationship in order to gain access to the various benefits and rights which accompany a common-law marriage.
since the 1960s to refer to unmarried, cohabiting heterosexual
relationships. However, this is merely a social usage. The term does not confer on cohabiting parties any of the rights or obligations enjoyed by spouses or civil partners. Unmarried partners are recognized for certain purposes in legislation: e.g., for means-tested benefits. For example, in the Jobseekers Act 1995
, "unmarried couple" was defined as a man and woman who are not married to each other but who are living together in the same household as husband and wife other than in prescribed circumstances. But in many areas of the law cohabitants enjoy no special rights. Thus when a cohabiting relationship ends ownership of any assets will be decided by property law
. The courts have no discretion to reallocate assets, as occurs on divorce
.
It is sometimes questionably claimed that before the Marriage Act 1753
cohabiting couples would enjoy the protection of a "common-law marriage". In fact, the precise status of couples who had not undergone a formal marriage ceremony before this act is open to question. Neither the name nor the concept of "common-law marriage" was known at this time. Far from being treated as if they were married, couples known to be cohabiting risked prosecution by the church courts for fornication
.
Couples who lived together without undergoing a marriage ceremony before the Marriage Act 1753
are sometimes thought to have undertaken a "contract marriage" by mutual consent. However, contract marriages (or more strictly contracts per verba de praesenti), were not acknowledged as having the legal status of a valid marriage until the decision in Dalrymple in 1811. This decision had an impact on the subsequent development of English law due to the fact that the Marriage Act 1753 did not apply overseas. English courts later held that it was possible to marry by a simple exchange of consent in the colonies
although most of the disputed ceremonies involved the ministrations of a priest or other clergyman. The influence of American law led to such marriages being described as "common-law marriages".
The English courts also upheld marriages by consent in territories not under British control but only if it had been impossible for the parties to marry according to the requirements of the local law. The late 1950s and early 1960s saw a spate of cases arising out of the Second World War, with marriages in prisoner-of-war camp
s in German
-occupied Europe
posing a particular problem for judges. (Some British civilians interned by the Japan
ese during the Second World War were held to be legally married after contracting marriages under circumstances where the formal requirements could not be met.) To this limited extent, English law does recognize what has become known as a "common-law marriage". English legal texts initially used the term to refer exclusively to American common-law marriages. Only in the 1960s did the term "common-law marriage" begin to be used in its contemporary sense to denote unmarried, cohabiting heterosexual relationships and not until the 1970s and 1980s did the term begin to lose its negative connotations. The use of the term may have encouraged cohabiting couples to believe falsely that they enjoyed legal rights.
, there have been several forms of "irregular marriage", among them:
The Marriage (Scotland) Act 1939 provided that the first three forms of irregular marriage could not be formed on or after 1 January 1940. However, any irregular marriages contracted prior to 1940 can still be upheld. This act also allowed the creation of regular civil marriages in Scotland for the first time. (The civil-registration system started in Scotland on 1 January 1855.)
Until this act, the only regular marriage available in Scotland was a religious marriage. Irregular marriages were not socially accepted and many people who decided to contract them did so where they were relatively unknown. In some years up to 60% of the marriages in the Blythswood Registration District of Glasgow were "irregular".
In 2006, "marriage by cohabitation with habit and repute", the last form of irregular marriage that could still be contracted in Scotland, was abolished in the Family Law (Scotland) Act 2006. Until that act had come into force, Scotland remained the only European jurisdiction never to have totally abolished the old-style common-law marriage. For this law to apply, the minimum time the couple have lived together continuously had to exceed 20 days.
As in the American jurisdictions that have preserved it, this type of marriage can be difficult to prove. It is not enough for the couple to have lived together for several years, but they must have been generally regarded as husband and wife. Their friends and neighbors, for example, must have known them as Mr. and Mrs. So-and-so (or at least they must have held themselves out to their neighbors and friends as Mr. and Mrs. So-and-so). Also, like American common-law marriages, it is a form of lawful marriage, so that people cannot be common-law spouses, or husband and wife by cohabitation with habit and repute, if one of them was legally married to somebody else when the relationship began.
It is a testament to the influence of American legal thought and English colloquial usage that, in a study conducted by the Scottish Executive in 2000, 57% of Scots surveyed believed that couples who merely live together have a "common-law marriage". In fact, that term is unknown in Scots law, which uses "marriage by cohabitation with habit and repute". "Common-law marriage" is an American term.
Otherwise, men and women who otherwise behave as husband and wife do not have a common-law marriage or a marriage by habit and repute merely because they set up housekeeping together, but they must hold themselves out to the world as husband and wife. (In many jurisdictions, they must do so for a certain length of time for the marriage to be valid.) The Scottish Survey is not clear on these points. It notes that "common-law marriage" is not part of Scots law, but it fails to note that "marriage by cohabitation with habit and repute", which is the same thing but in name, was part of Scots law until 2006.
in Meister v. Moore (96 U.S. 76 (1877)), which ruled that Michigan
had not abolished common-law marriage merely by producing a statute
establishing rules for the solemnization of marriages. Since Michigan did not require marriages to be solemnized, the court held, the right to marry that existed at common-law existed until state law affirmatively changed it. The Court held that in order to bar common-law marriage, a state's general marriage statute must indicate that no marriage would be valid unless the enumerated statutory requirements were followed.
A common-law marriage can still be contracted in the District of Columbia and over ten states: Alabama
, Colorado
, Iowa
, Kansas
, Montana
, Oklahoma
, Rhode Island
, South Carolina
, Utah
, and Texas
included. Additionally, New Hampshire
law provides for posthumous recognition of common-law marriage in probate
cases; and Utah will recognize a common-law marriage if the parties get a judicial decree to the effect a common law-marriage exists or existed between them. Otherwise, common-law marriages can no longer be contracted in any of the other states. All states, however, recognize a common-law marriage that was validly contracted in another state under the principles of comity
and their choice of law
/conflict of laws
rules. In California
, for example, a marriage validly contracted in another jurisdiction
is valid in California, even if it could not be legally contracted within California; and a marriage that is not validly contracted in another U.S. jurisdiction is not valid in California, even if it could have been legally contracted in that state. The only exceptions to this rule, in California and many other states, are polygamous marriages
, same-sex marriages, and any other marriage that is deemed "odious to public policy."
The requirements for a common-law marriage to be validly contracted differ from state to state, and among Native American tribes. The Navajo Nation
, for example, allows common-law marriage and allows its members to marry using tribal ceremonial processes as well as traditional processes.
There is no such thing as "common-law divorce
." Only the contract
of the marriage is irregular; everything else about the marriage is perfectly regular. People who marry per the old common-law tradition must petition the appropriate court
in their state for a dissolution of marriage. Texas, however, permits common-law marriages to be effectively annulled
, if not established legally within a specified time after the parties separate. Likewise, common-law legal presumptions that a person who obtains a marriage license
has obtained a divorce from all prior marriages before remarrying, in the absence of proof to the contrary, can have a similar practical effect.
While a number of states recognize domestic partnership
s with the same legal incidents as marriage, no U.S. state except Iowa (where the law is untested) currently recognizes same-sex common-law marriages. The federal
Defense of Marriage Act
permits any state not to recognize same-sex marriage
s from another state, and provides that the federal government will not recognize any same-sex marriages.
Because common-law marriages are just as valid as statutory marriages, the Internal Revenue Service
does recognize them for federal income tax purposes. Practitioners should be alert to the specific state requirements necessary for their clients contemplating filing joint returns under common-law marriage statutes, as well as those who might be submitting returns as "married, filing separately."
Interpersonal relationship
An interpersonal relationship is an association between two or more people that may range from fleeting to enduring. This association may be based on limerence, love, solidarity, regular business interactions, or some other type of social commitment. Interpersonal relationships are formed in the...
that is legally recognized in limited jurisdictions as a marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
even though no legally recognized marriage ceremony is performed or civil marriage
Civil marriage
Civil marriage is marriage performed by a government official and not a religious organization.-History:Every country maintaining a population registry of its residents keeps track of marital status, and most countries believe that it is their responsibility to register married couples. Most...
contract is entered into or the marriage registered in a civil registry. A common-law marriage is legally binding in some common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions but has no legal consequence in others. In some jurisdictions without true common-law marriages, for example, Hungary
Hungary
Hungary , officially the Republic of Hungary , is a landlocked country in Central Europe. It is situated in the Carpathian Basin and is bordered by Slovakia to the north, Ukraine and Romania to the east, Serbia and Croatia to the south, Slovenia to the southwest and Austria to the west. The...
, the term "common-law marriage" is used as a synonym for non-marital relationships such as domestic partnership
Domestic partnership
A domestic partnership is a legal or personal relationship between two individuals who live together and share a common domestic life but are neither joined by marriage nor a civil union...
or reciprocal beneficiaries relationship. A Sui Juris Marriage might only apply in the United States in this form.
Common-law marriage is often contrasted with the ceremonial marriage
Ceremonial marriage
Ceremonial marriage is a common form of marriage in which a couple follows laws and procedures specified by the state in order to gain recognition of their marriage...
.
Essential distinctions
The distinctions of a common-law marriage are following:- Common-law marriages are not licensed by government authorities, although they may be recorded in the public records of some governmental entities, but do not need to be registered at all.
- Common-law marriages are not solemnized before witnesses in a wedding ceremony.
- CohabitationCohabitationCohabitation usually refers to an arrangement whereby two people decide to live together on a long-term or permanent basis in an emotionally and/or sexually intimate relationship. The term is most frequently applied to couples who are not married...
alone does not create a common-law marriage; the couple must hold themselves out to the world as spouses (SaskatchewanSaskatchewanSaskatchewan is a prairie province in Canada, which has an area of . Saskatchewan is bordered on the west by Alberta, on the north by the Northwest Territories, on the east by Manitoba, and on the south by the U.S. states of Montana and North Dakota....
, Canada, excepted); and- There must be mutual consent of the parties to the relationship constituting a marriage (Saskatchewan excepted).
- Both parties must be of legal age to enter into a marriage or have parental consent to marry.
- Both parties must be otherwise qualified to enter into a marriage, including being unmarried (Saskatchewan excepted), of sound mind, and, in many states, not sentenced to or serving a term of life in prison.
- In some jurisdictions, a couple must have cohabited and held themselves out to the world as spouses for a significant period of time, not defined in any state, for the marriage to be recognized as valid. With the exception of Saskatchewan, Canada, no Western World legal jurisdiction is known to allow common law marriages to be created while one or more of the cohabitants are civilly married and not divorced.
A marriage is validly contracted, whether according to statute or according to common law, the marriage can be dissolved only by a legal proceeding in the pertinent trial court, usually family court or probate court.
In the U.S. state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
of Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
, a new provision was added to the Family Code; either partner in a common-law marriage has two years after separation to file an action in order to prove that the common-law marriage existed. To use the provision, the separation must have occurred after September 1, 1989.
Since the mid-1990s, the term "common-law marriage" has been used in parts of Europe and Canada to describe various types of domestic partnership
Domestic partnership
A domestic partnership is a legal or personal relationship between two individuals who live together and share a common domestic life but are neither joined by marriage nor a civil union...
between persons of the same sex as well those of the opposite sex. Although these interpersonal statuses are often, as in Hungary, called "common-law marriage" they differ from true common-law marriage in that they are not legally recognized as "marriages" but are a parallel interpersonal status, known in most jurisdictions as "domestic partnership", "registered partnership", "conjugal union" or "civil union" etc.
Not all agreements break statutes. Some are illegal because they break public policy, which is generally "to discourage any interference with the freedom of choice" (Saskatchewan, Canada, excepted). An agreement forbidding a party to marry or bribing a party to refrain from marriage is considered "Interference with Marriage Relation" or an "Agreement in Restraint of Marriage"; such agreements are typically held to be nonbinding.
History
In medieval Europe, marriage came under the jurisdiction of canon law, which recognized as a valid marriage one where the parties stated that they took one another as wife and husband, even in absence of any witnesses.The Roman Catholic Church
Roman Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the world's largest Christian church, with over a billion members. Led by the Pope, it defines its mission as spreading the gospel of Jesus Christ, administering the sacraments and exercising charity...
forbade clandestine marriage at the Fourth Lateran Council (1215), which required all marriages to be announced in a church by a priest. The Council of Trent
Council of Trent
The Council of Trent was the 16th-century Ecumenical Council of the Roman Catholic Church. It is considered to be one of the Church's most important councils. It convened in Trent between December 13, 1545, and December 4, 1563 in twenty-five sessions for three periods...
(1545–1563) introduced more specific requirements, ruling that in the future a marriage would be valid only if witnessed by the pastor of the parish or the local ordinary (i.e., the bishop of the diocese), or by the delegate of one of said witnesses, the marriage being invalid otherwise, even if witnessed by a Roman Catholic priest. The Tridentine canons did not bind the Protestants or the Eastern Orthodox, but clandestine marriage was impossible for the latter, since marriage required the presence of a priest for validity. England abolished clandestine or common-law marriages in the Marriage Act 1753
Marriage Act 1753
The Marriage Act 1753, full title "An Act for the Better Preventing of Clandestine Marriage", popularly known as Lord Hardwicke's Marriage Act , was the first statutory legislation in England and Wales to require a formal ceremony of marriage. It came into force on 25 March 1754...
, requiring marriages to be performed by a priest of the Church of England
Church of England
The Church of England is the officially established Christian church in England and the Mother Church of the worldwide Anglican Communion. The church considers itself within the tradition of Western Christianity and dates its formal establishment principally to the mission to England by St...
unless the participants in the marriage were Jews or Quakers. The Act applied to Wales
Wales
Wales is a country that is part of the United Kingdom and the island of Great Britain, bordered by England to its east and the Atlantic Ocean and Irish Sea to its west. It has a population of three million, and a total area of 20,779 km²...
, and to Ireland
Ireland
Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
after the Act of Union 1800
Act of Union 1800
The Acts of Union 1800 describe two complementary Acts, namely:* the Union with Ireland Act 1800 , an Act of the Parliament of Great Britain, and...
, although the requirement for a Church of England priest created problems in predominantly Roman Catholic Ireland. The law did not provide an exception there. The Act did not apply to Scotland because by the Acts of Union 1707
Acts of Union 1707
The Acts of Union were two Parliamentary Acts - the Union with Scotland Act passed in 1706 by the Parliament of England, and the Union with England Act passed in 1707 by the Parliament of Scotland - which put into effect the terms of the Treaty of Union that had been agreed on 22 July 1706,...
Scotland retained its own legal system. To get around the requirements of the Marriage Act, such as minimum age requirements, couples would go to Gretna Green
Gretna Green
Gretna Green is a village in the south of Scotland famous for runaway weddings. It is in Dumfries and Galloway, near the mouth of the River Esk and was historically the first village in Scotland, following the old coaching route from London to Edinburgh. Gretna Green has a railway station serving...
, in southern Scotland, to get married under Scots law.
The Marriage Act of 1753 also did not apply to Britain's overseas colonies of the time, so common-law marriages continued to be recognised in the future United States and Canada. In the United States, new common-law marriages arising in the state are still recognized in Alabama
Alabama
Alabama is a state located in the southeastern region of the United States. It is bordered by Tennessee to the north, Georgia to the east, Florida and the Gulf of Mexico to the south, and Mississippi to the west. Alabama ranks 30th in total land area and ranks second in the size of its inland...
, Colorado
Colorado
Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...
, Iowa
Iowa
Iowa is a state located in the Midwestern United States, an area often referred to as the "American Heartland". It derives its name from the Ioway people, one of the many American Indian tribes that occupied the state at the time of European exploration. Iowa was a part of the French colony of New...
, Kansas
Kansas
Kansas is a US state located in the Midwestern United States. It is named after the Kansas River which flows through it, which in turn was named after the Kansa Native American tribe, which inhabited the area. The tribe's name is often said to mean "people of the wind" or "people of the south...
, Montana
Montana
Montana is a state in the Western United States. The western third of Montana contains numerous mountain ranges. Smaller, "island ranges" are found in the central third of the state, for a total of 77 named ranges of the Rocky Mountains. This geographical fact is reflected in the state's name,...
, Rhode Island
Rhode Island
The state of Rhode Island and Providence Plantations, more commonly referred to as Rhode Island , is a state in the New England region of the United States. It is the smallest U.S. state by area...
, South Carolina
South Carolina
South Carolina is a state in the Deep South of the United States that borders Georgia to the south, North Carolina to the north, and the Atlantic Ocean to the east. Originally part of the Province of Carolina, the Province of South Carolina was one of the 13 colonies that declared independence...
, Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
, Utah
Utah
Utah is a state in the Western United States. It was the 45th state to join the Union, on January 4, 1896. Approximately 80% of Utah's 2,763,885 people live along the Wasatch Front, centering on Salt Lake City. This leaves vast expanses of the state nearly uninhabited, making the population the...
, the District of Columbia, under military law
Military law
Military justice is the body of laws and procedures governing members of the armed forces. Many states have separate and distinct bodies of law that govern the conduct of members of their armed forces. Some states use special judicial and other arrangements to enforce those laws, while others use...
, and in Canada, several provinces recognize them. All U.S. states recognize common-law marriages validly entered into at a time and place where common-law marriage was recognized, although some impose certain public policy exceptions to the recognition of common-law marriages involving minors or persons who would not be entitled to marry in that state for some reason. A common-law marriage occurring under military law is not binding on the non-military spouse (if a mixed marriage) and therefore unlikely to be recognized by some jurisdictions.
All countries in Europe have now abolished "marriage by habit and repute", with Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
being the last to do so in 2006.
Australia
In AustraliaAustralia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
the term de facto relationship is often used to refer to relationships between any two persons who are not married but are effectively living in certain domestic circumstances. The legal term for such relationships varies by state and territory (however common-law marriage is not used anywhere in Australia):
| State | Name | Law |
|---|---|---|
| New South Wales New South Wales New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales... |
"Domestic relationship", encompassing "de facto relationships" and "close personal relationships" | Property (Relationships) Act 1984 |
| Victoria Victoria (Australia) Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively.... |
"Domestic relationship", defined to mean "de facto relationships" | Property Law Act 1958 Part IX |
| Queensland Queensland Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean... |
"De facto relationship" | Property Law Act 1974 |
| South Australia South Australia South Australia is a state of Australia in the southern central part of the country. It covers some of the most arid parts of the continent; with a total land area of , it is the fourth largest of Australia's six states and two territories.South Australia shares borders with all of the mainland... |
"Close personal relationship" | Domestic Partners Property Act 1996 |
| Western Australia Western Australia Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east... |
"De facto relationship" | Family Court Act 1997, Part 5A |
| Tasmania Tasmania Tasmania is an Australian island and state. It is south of the continent, separated by Bass Strait. The state includes the island of Tasmania—the 26th largest island in the world—and the surrounding islands. The state has a population of 507,626 , of whom almost half reside in the greater Hobart... |
"Personal relationship", encompassing "significant relationships" and "caring relationships" | Relationships Act 2003 |
| Australian Capital Territory Australian Capital Territory The Australian Capital Territory, often abbreviated ACT, is the capital territory of the Commonwealth of Australia and is the smallest self-governing internal territory... |
"Domestic relationship" and "domestic partnership" | Domestic Relationships Act 1994, Legislation Act 2001 s 169 |
| Northern Territory Northern Territory The Northern Territory is a federal territory of Australia, occupying much of the centre of the mainland continent, as well as the central northern regions... |
"De facto relationship" | De Facto Relationships Act 1991 |
Although property aspects of these relationships are dealt with under state law, the law relating to children of such relationships is contained in the federal Family Law Act 1975. Most laws dealing with taxation, social welfare, pensions, etc., treat de facto marriages in the same manner as solemnised marriages.
The Family Law Act states that a de facto relationship can exist between two people of different or the same sex and that a person can be in a de facto relationship even if legally married to another person or in a de facto relationship with someone else. Family property laws however, are excepted from jurisdiction when a person is both married and in a de facto relationship at the same time. This exception is due to federal polygamy laws. Same-sex de facto relationships have been recognized in New South Wales since 1999. There are a number of methods by which these relationships are recognized in Australian law and they include the same entitlements as "Christian" marriage.
The federal Marriage Act 1961 provides for marriage, but does not recognize 'common-law marriages'. The former Howard government declared that marriage, as the Christian ideal, can exist only between a man and a woman. This allowed for the overriding of marriage laws instituted in the Act but did not impinge on the legal standing of de facto relationships.
Canada
In CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, the legal definition and regulation of common-law marriage fall under provincial
Provinces and territories of Canada
The provinces and territories of Canada combine to make up the world's second-largest country by area. There are ten provinces and three territories...
jurisdiction. With the exception of Saskatchewan, a couple must meet the requirements of their province's "capacity to marry" within the Marriage Act
Marriage Act
-Australia:-Canada:-New ZealandSouth Africa:-Australia::The Marriage Act 1961, Australia's law that governs legal marriage.-Canada::The Civil Marriage Act passed in Canada explicitly permitting same-sex marriages.-New Zealand:...
for their common-law marriage to be legally recognized under civil jurisdiction. Saskatchewan does allow married persons to have same time multiple spouses when one conjugal union is a civil marriage and the other conjugal union is a common law marriage (at the same time). Although Saskatchewan's Marriage Act does not stipulate whether a person must have no existing marriage to be eligible to marry, common-law marriages may occur even while one or more civil marriages exist amongst the common law couple.
According to the Canada Revenue Agency
Canada Revenue Agency
The Canada Revenue Agency is a federal agency that administers tax laws for the Government of Canada and for most provinces and territories, international trade legislation, and various social and economic benefit and incentive programs delivered through the tax system...
, as of 2007, a common-law relationship is true if at least one of the following applies:
a) the couple has been living in a conjugal relationship for at least 12 continuous months;
b) the couple are parents of a child by birth or adoption; or
c) one of the couple has custody and control of the other partner's child (or had custody and control immediately before the child turned 19 years of age) and the child is wholly dependent on that person for support.
For a full, up to date CRA description go here: Marital Status
In many cases common-law couples have the same rights as married couples under federal law. Various federal laws include "common-law status," which automatically takes effect once two people (of any gender) have lived together in a conjugal relationship for five full years. Common-law partners may be eligible for various federal government spousal benefits. As family law varies between provinces, there are differences between the provinces regarding the recognition of common-law marriage. No province, other than Saskatchewan, sanctions married persons to be capable in family law of having more than one spouse at the same time.
In 1999, after the court case M. v. H.
M. v. H.
M. v. H. [1999] 2 S.C.R. 3, is a landmark decision of the Supreme Court of Canada on the rights of same-sex couples to equal treatment under the Constitution of Canada....
, the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decided that same-sex partners
Same-sex marriage
Same-sex marriage is marriage between two persons of the same biological sex or social gender. Supporters of legal recognition for same-sex marriage typically refer to such recognition as marriage equality....
would also be included in common-law relationships. In Saskatchewan, Queen's Bench justices have sanctioned common-law marriages as simultaneously existing in Family law whilst one or more of the spouses were also civilly married to others. There is no requirement for mutual consent to become the "legal spouse of a person who has an existing spouse" {S.51 Saskatchewan Family Property Act.}
Ontario
In OntarioOntario
Ontario is a province of Canada, located in east-central Canada. It is Canada's most populous province and second largest in total area. It is home to the nation's most populous city, Toronto, and the nation's capital, Ottawa....
, the Ontario Family Law Act
Ontario Family Law Act
The Family Law Act is a statute passed by the Legislative Assembly of Ontario in 1990, regulating the rights of spouses and dependants in regard to property, support, inheritance, prenuptial agreements, separation agreements, and other matters of family law. In 1999, this statute was the subject...
specifically recognizes common-law spouses in sec. 29, dealing with spousal support
Alimony
Alimony is a U.S. term denoting a legal obligation to provide financial support to one's spouse from the other spouse after marital separation or from the ex-spouse upon divorce...
issues; the requirements are living together for no less than three years or having a child in common and having "cohabitated in a relationship of some permanence". The three years must be continuous, although a breakup of a few days during the period will not affect a person's status as common-law. No married person may become eligible to begin the three-year countdown to have a recognized common law spouse until divorce from the first spouse occurs. However, the part that deals with marital property excludes common-law spouses, as sec. 2 defines spouses as those who are married together or who entered into a void or voidable marriage
Annulment
Annulment is a legal procedure for declaring a marriage null and void. Unlike divorce, it is usually retroactive, meaning that an annulled marriage is considered to be invalid from the beginning almost as if it had never taken place...
in good faith
Good faith
In philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...
. "Good faith" in a voidable marriage cannot occur if one or more of the persons are already married to another. Thus, common-law partners do not always evenly divide property in a breakup, and the courts have to look to concepts such as the constructive or resulting trust
Trust law
In common law legal systems, a trust is a relationship whereby property is held by one party for the benefit of another...
to divide property in an equitable manner between partners. Another difference that distinguishes common-law spouses from married partners is that a common-law partner can be compelled to testify against his or her partner in a court of law.
Quebec
The Civil Code of QuebecCivil Code of Quebec
The Civil Code of Quebec is the civil code in force in the province of Quebec, Canada. The Civil Code of Quebec came into effect on January 1, 1994, except for certain parts of the book on Family Law which were adopted by the National Assembly in the 1980s...
has never recognized a common-law partnership as a form of marriage. However, many laws in Quebec explicitly apply to common-law partners (called conjoints de fait) in "de facto
De facto
De facto is a Latin expression that means "concerning fact." In law, it often means "in practice but not necessarily ordained by law" or "in practice or actuality, but not officially established." It is commonly used in contrast to de jure when referring to matters of law, governance, or...
unions" (marriages being "de jure
De jure
De jure is an expression that means "concerning law", as contrasted with de facto, which means "concerning fact".De jure = 'Legally', De facto = 'In fact'....
unions"), as they do to marriage spouses. Same-sex partners are also recognized as "conjoints de fait" in de facto unions, for the purpose of social benefit laws. However, common-law partners do not have any legal rights between them, such as alimony
Alimony
Alimony is a U.S. term denoting a legal obligation to provide financial support to one's spouse from the other spouse after marital separation or from the ex-spouse upon divorce...
, family patrimony
Family patrimony
Family patrimony is a type of civil law patrimony that is created by marriage or civil union which creates a bundle of entitlements and obligations that must be shared by the spouses or partners upon divorce, annulment, dissolution of marriage or dissolution of civil union, when there must be a...
, compensatory allowance and matrimonial regime
Matrimonial regime
Matrimonial regimes, or marital property systems, are systems of property ownership between spouses providing for the creation or absence of a marital estate, and if created, what properties are included in that estate, how and by whom it is managed, and how it will be divided and inherited at the...
.
A 2002 amendment to the Civil Code recognizes a type of domestic partnership called a civil union
Civil union
A civil union, also referred to as a civil partnership, is a legally recognized form of partnership similar to marriage. Beginning with Denmark in 1989, civil unions under one name or another have been established by law in many developed countries in order to provide same-sex couples rights,...
that is similar to marriage and is likewise available to same-sex partners. No citizen of Quebec can be recognized under family law to be in both a civilly married state and a "conjoints de fait" within the same time frame. Divorce from one conjugal relationship must occur before another conjugal relationship may occur in family law.
Same-sex partners can also marry legally in Quebec, as elsewhere in Canada.
Other provinces
The requirements in some other provinces are as follows:In British Columbia
British Columbia
British Columbia is the westernmost of Canada's provinces and is known for its natural beauty, as reflected in its Latin motto, Splendor sine occasu . Its name was chosen by Queen Victoria in 1858...
, a person who has lived and cohabited with another person, for a period of at least two years is considered a common law spouse, unless one or both of them were married to another person during this time, according to the "Estate Administration Act".
In Nova Scotia
Nova Scotia
Nova Scotia is one of Canada's three Maritime provinces and is the most populous province in Atlantic Canada. The name of the province is Latin for "New Scotland," but "Nova Scotia" is the recognized, English-language name of the province. The provincial capital is Halifax. Nova Scotia is the...
, a couple must cohabit for two years in a marriage-like relationship, and may not have been married to another person during this time.
In New Brunswick
New Brunswick
New Brunswick is one of Canada's three Maritime provinces and is the only province in the federation that is constitutionally bilingual . The provincial capital is Fredericton and Saint John is the most populous city. Greater Moncton is the largest Census Metropolitan Area...
, a couple must live together for three years or have a natural or adopted child together. They cannot have been married to another person during this time.
In Alberta
Alberta
Alberta is a province of Canada. It had an estimated population of 3.7 million in 2010 making it the most populous of Canada's three prairie provinces...
, common-law marriage has been subsumed since 2003 under the terms of the Adult Interdependent Relationship Act
Adult interdependent relationship in Alberta
Since 2003, Adult interdependent relationships have been available to both same-sex and opposite-sex couples in the Canadian province of Alberta, imposing some but not all of the obligations of marriage and providing some but not all the rights and benefits thereof.According to the Alberta Ministry...
, which may additionally apply to any two unrelated people living together in a mutually dependent relationship for three years. Only one interdependent relationship is allowed at a time. In the event either of the common law spouses are married to other persons during this time, neither of the common-law couple can begin to be "interdependent" until divorce from other spouses occurs.
Israel
Israeli law recognizes common-law marriage (ידוע בציבור) particularly since an apparatus for civil marriageCivil marriage
Civil marriage is marriage performed by a government official and not a religious organization.-History:Every country maintaining a population registry of its residents keeps track of marital status, and most countries believe that it is their responsibility to register married couples. Most...
is absent, and many couples choose to avoid a religious marriage or are barred from it. Israeli law makes provisions for common-law spouses, but is murky as to the period of time that needs to pass before a relationship can be recognized as common-law marriage. Unlike marriage, the spouses need to provide proof of their relationship in order to gain access to the various benefits and rights which accompany a common-law marriage.
England and Wales
The term "common-law marriage" has been used in England and WalesWales
Wales is a country that is part of the United Kingdom and the island of Great Britain, bordered by England to its east and the Atlantic Ocean and Irish Sea to its west. It has a population of three million, and a total area of 20,779 km²...
since the 1960s to refer to unmarried, cohabiting heterosexual
Heterosexuality
Heterosexuality is romantic or sexual attraction or behavior between members of the opposite sex or gender. As a sexual orientation, heterosexuality refers to "an enduring pattern of or disposition to experience sexual, affectional, physical or romantic attractions to persons of the opposite sex";...
relationships. However, this is merely a social usage. The term does not confer on cohabiting parties any of the rights or obligations enjoyed by spouses or civil partners. Unmarried partners are recognized for certain purposes in legislation: e.g., for means-tested benefits. For example, in the Jobseekers Act 1995
Jobseeker's Allowance
Jobseeker's Allowance is a United Kingdom benefit, colloquially known as the dole . It is a form of unemployment benefit paid by the government to people who are unemployed and seeking work. It is part of the social security benefits system and is intended to cover living expenses while the...
, "unmarried couple" was defined as a man and woman who are not married to each other but who are living together in the same household as husband and wife other than in prescribed circumstances. But in many areas of the law cohabitants enjoy no special rights. Thus when a cohabiting relationship ends ownership of any assets will be decided by property law
Property law
Property law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property...
. The courts have no discretion to reallocate assets, as occurs on divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
.
It is sometimes questionably claimed that before the Marriage Act 1753
Marriage Act 1753
The Marriage Act 1753, full title "An Act for the Better Preventing of Clandestine Marriage", popularly known as Lord Hardwicke's Marriage Act , was the first statutory legislation in England and Wales to require a formal ceremony of marriage. It came into force on 25 March 1754...
cohabiting couples would enjoy the protection of a "common-law marriage". In fact, the precise status of couples who had not undergone a formal marriage ceremony before this act is open to question. Neither the name nor the concept of "common-law marriage" was known at this time. Far from being treated as if they were married, couples known to be cohabiting risked prosecution by the church courts for fornication
Fornication
Fornication typically refers to consensual sexual intercourse between two people not married to each other. For many people, the term carries a moral or religious association, but the significance of sexual acts to which the term is applied varies between religions, societies and cultures. The...
.
Couples who lived together without undergoing a marriage ceremony before the Marriage Act 1753
Marriage Act 1753
The Marriage Act 1753, full title "An Act for the Better Preventing of Clandestine Marriage", popularly known as Lord Hardwicke's Marriage Act , was the first statutory legislation in England and Wales to require a formal ceremony of marriage. It came into force on 25 March 1754...
are sometimes thought to have undertaken a "contract marriage" by mutual consent. However, contract marriages (or more strictly contracts per verba de praesenti), were not acknowledged as having the legal status of a valid marriage until the decision in Dalrymple in 1811. This decision had an impact on the subsequent development of English law due to the fact that the Marriage Act 1753 did not apply overseas. English courts later held that it was possible to marry by a simple exchange of consent in the colonies
British Empire
The British Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height, it was the...
although most of the disputed ceremonies involved the ministrations of a priest or other clergyman. The influence of American law led to such marriages being described as "common-law marriages".
The English courts also upheld marriages by consent in territories not under British control but only if it had been impossible for the parties to marry according to the requirements of the local law. The late 1950s and early 1960s saw a spate of cases arising out of the Second World War, with marriages in prisoner-of-war camp
Prisoner-of-war camp
A prisoner-of-war camp is a site for the containment of combatants captured by their enemy in time of war, and is similar to an internment camp which is used for civilian populations. A prisoner of war is generally a soldier, sailor, or airman who is imprisoned by an enemy power during or...
s in German
Germans
The Germans are a Germanic ethnic group native to Central Europe. The English term Germans has referred to the German-speaking population of the Holy Roman Empire since the Late Middle Ages....
-occupied Europe
Europe
Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...
posing a particular problem for judges. (Some British civilians interned by the Japan
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
ese during the Second World War were held to be legally married after contracting marriages under circumstances where the formal requirements could not be met.) To this limited extent, English law does recognize what has become known as a "common-law marriage". English legal texts initially used the term to refer exclusively to American common-law marriages. Only in the 1960s did the term "common-law marriage" begin to be used in its contemporary sense to denote unmarried, cohabiting heterosexual relationships and not until the 1970s and 1980s did the term begin to lose its negative connotations. The use of the term may have encouraged cohabiting couples to believe falsely that they enjoyed legal rights.
Scotland
Under Scots lawScots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
, there have been several forms of "irregular marriage", among them:
- Irregular marriage by declaration de presenti—declaring in the presence of two witnesses that one takes someone as one's wife or husband.
- Irregular marriage conditional on consummation.
- Marriage contracted by correspondence.
- Irregular marriage by cohabitation with habit and repute.
The Marriage (Scotland) Act 1939 provided that the first three forms of irregular marriage could not be formed on or after 1 January 1940. However, any irregular marriages contracted prior to 1940 can still be upheld. This act also allowed the creation of regular civil marriages in Scotland for the first time. (The civil-registration system started in Scotland on 1 January 1855.)
Until this act, the only regular marriage available in Scotland was a religious marriage. Irregular marriages were not socially accepted and many people who decided to contract them did so where they were relatively unknown. In some years up to 60% of the marriages in the Blythswood Registration District of Glasgow were "irregular".
In 2006, "marriage by cohabitation with habit and repute", the last form of irregular marriage that could still be contracted in Scotland, was abolished in the Family Law (Scotland) Act 2006. Until that act had come into force, Scotland remained the only European jurisdiction never to have totally abolished the old-style common-law marriage. For this law to apply, the minimum time the couple have lived together continuously had to exceed 20 days.
As in the American jurisdictions that have preserved it, this type of marriage can be difficult to prove. It is not enough for the couple to have lived together for several years, but they must have been generally regarded as husband and wife. Their friends and neighbors, for example, must have known them as Mr. and Mrs. So-and-so (or at least they must have held themselves out to their neighbors and friends as Mr. and Mrs. So-and-so). Also, like American common-law marriages, it is a form of lawful marriage, so that people cannot be common-law spouses, or husband and wife by cohabitation with habit and repute, if one of them was legally married to somebody else when the relationship began.
It is a testament to the influence of American legal thought and English colloquial usage that, in a study conducted by the Scottish Executive in 2000, 57% of Scots surveyed believed that couples who merely live together have a "common-law marriage". In fact, that term is unknown in Scots law, which uses "marriage by cohabitation with habit and repute". "Common-law marriage" is an American term.
Otherwise, men and women who otherwise behave as husband and wife do not have a common-law marriage or a marriage by habit and repute merely because they set up housekeeping together, but they must hold themselves out to the world as husband and wife. (In many jurisdictions, they must do so for a certain length of time for the marriage to be valid.) The Scottish Survey is not clear on these points. It notes that "common-law marriage" is not part of Scots law, but it fails to note that "marriage by cohabitation with habit and repute", which is the same thing but in name, was part of Scots law until 2006.
United States
The tradition of common-law marriage was affirmed by the Supreme Court of the United StatesSupreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
in Meister v. Moore (96 U.S. 76 (1877)), which ruled that Michigan
Michigan
Michigan is a U.S. state located in the Great Lakes Region of the United States of America. The name Michigan is the French form of the Ojibwa word mishigamaa, meaning "large water" or "large lake"....
had not abolished common-law marriage merely by producing a statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
establishing rules for the solemnization of marriages. Since Michigan did not require marriages to be solemnized, the court held, the right to marry that existed at common-law existed until state law affirmatively changed it. The Court held that in order to bar common-law marriage, a state's general marriage statute must indicate that no marriage would be valid unless the enumerated statutory requirements were followed.
A common-law marriage can still be contracted in the District of Columbia and over ten states: Alabama
Alabama
Alabama is a state located in the southeastern region of the United States. It is bordered by Tennessee to the north, Georgia to the east, Florida and the Gulf of Mexico to the south, and Mississippi to the west. Alabama ranks 30th in total land area and ranks second in the size of its inland...
, Colorado
Colorado
Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...
, Iowa
Iowa
Iowa is a state located in the Midwestern United States, an area often referred to as the "American Heartland". It derives its name from the Ioway people, one of the many American Indian tribes that occupied the state at the time of European exploration. Iowa was a part of the French colony of New...
, Kansas
Kansas
Kansas is a US state located in the Midwestern United States. It is named after the Kansas River which flows through it, which in turn was named after the Kansa Native American tribe, which inhabited the area. The tribe's name is often said to mean "people of the wind" or "people of the south...
, Montana
Montana
Montana is a state in the Western United States. The western third of Montana contains numerous mountain ranges. Smaller, "island ranges" are found in the central third of the state, for a total of 77 named ranges of the Rocky Mountains. This geographical fact is reflected in the state's name,...
, Oklahoma
Oklahoma
Oklahoma is a state located in the South Central region of the United States of America. With an estimated 3,751,351 residents as of the 2010 census and a land area of 68,667 square miles , Oklahoma is the 28th most populous and 20th-largest state...
, Rhode Island
Rhode Island
The state of Rhode Island and Providence Plantations, more commonly referred to as Rhode Island , is a state in the New England region of the United States. It is the smallest U.S. state by area...
, South Carolina
South Carolina
South Carolina is a state in the Deep South of the United States that borders Georgia to the south, North Carolina to the north, and the Atlantic Ocean to the east. Originally part of the Province of Carolina, the Province of South Carolina was one of the 13 colonies that declared independence...
, Utah
Utah
Utah is a state in the Western United States. It was the 45th state to join the Union, on January 4, 1896. Approximately 80% of Utah's 2,763,885 people live along the Wasatch Front, centering on Salt Lake City. This leaves vast expanses of the state nearly uninhabited, making the population the...
, and Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
included. Additionally, New Hampshire
New Hampshire
New Hampshire is a state in the New England region of the northeastern United States of America. The state was named after the southern English county of Hampshire. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Atlantic Ocean to the east, and the Canadian...
law provides for posthumous recognition of common-law marriage in probate
Probate
Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. A probate court decides the validity of a testator's will...
cases; and Utah will recognize a common-law marriage if the parties get a judicial decree to the effect a common law-marriage exists or existed between them. Otherwise, common-law marriages can no longer be contracted in any of the other states. All states, however, recognize a common-law marriage that was validly contracted in another state under the principles of comity
Comity
In law, comity specifically refers to legal reciprocity—the principle that one jurisdiction will extend certain courtesies to other nations , particularly by recognizing the validity and effect of their executive, legislative, and judicial acts...
and their choice of law
Choice of law
Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states , or provinces...
/conflict of laws
Conflict of laws
Conflict of laws is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute...
rules. In California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
, for example, a marriage validly contracted in another jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
is valid in California, even if it could not be legally contracted within California; and a marriage that is not validly contracted in another U.S. jurisdiction is not valid in California, even if it could have been legally contracted in that state. The only exceptions to this rule, in California and many other states, are polygamous marriages
Group marriage
Group marriage, also known as multi-lateral marriage, is a form of polyamory in which more than two persons form a family unit, with all the members of the group marriage being considered to be married to all the other members of the group marriage, and all members of the marriage share parental...
, same-sex marriages, and any other marriage that is deemed "odious to public policy."
The requirements for a common-law marriage to be validly contracted differ from state to state, and among Native American tribes. The Navajo Nation
Navajo Nation
The Navajo Nation is a semi-autonomous Native American-governed territory covering , occupying all of northeastern Arizona, the southeastern portion of Utah, and northwestern New Mexico...
, for example, allows common-law marriage and allows its members to marry using tribal ceremonial processes as well as traditional processes.
There is no such thing as "common-law divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
." Only the contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
of the marriage is irregular; everything else about the marriage is perfectly regular. People who marry per the old common-law tradition must petition the appropriate court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
in their state for a dissolution of marriage. Texas, however, permits common-law marriages to be effectively annulled
Annulment
Annulment is a legal procedure for declaring a marriage null and void. Unlike divorce, it is usually retroactive, meaning that an annulled marriage is considered to be invalid from the beginning almost as if it had never taken place...
, if not established legally within a specified time after the parties separate. Likewise, common-law legal presumptions that a person who obtains a marriage license
Marriage license
A marriage license is a document issued, either by a church or state authority, authorizing a couple to marry. The procedure for obtaining a license varies between countries and has changed over time...
has obtained a divorce from all prior marriages before remarrying, in the absence of proof to the contrary, can have a similar practical effect.
While a number of states recognize domestic partnership
Domestic partnership
A domestic partnership is a legal or personal relationship between two individuals who live together and share a common domestic life but are neither joined by marriage nor a civil union...
s with the same legal incidents as marriage, no U.S. state except Iowa (where the law is untested) currently recognizes same-sex common-law marriages. The federal
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
Defense of Marriage Act
Defense of Marriage Act
The Defense of Marriage Act is a United States federal law whereby the federal government defines marriage as a legal union between one man and one woman. Under the law, no U.S. state may be required to recognize as a marriage a same-sex relationship considered a marriage in another state...
permits any state not to recognize same-sex marriage
Same-sex marriage
Same-sex marriage is marriage between two persons of the same biological sex or social gender. Supporters of legal recognition for same-sex marriage typically refer to such recognition as marriage equality....
s from another state, and provides that the federal government will not recognize any same-sex marriages.
Because common-law marriages are just as valid as statutory marriages, the Internal Revenue Service
Internal Revenue Service
The Internal Revenue Service is the revenue service of the United States federal government. The agency is a bureau of the Department of the Treasury, and is under the immediate direction of the Commissioner of Internal Revenue...
does recognize them for federal income tax purposes. Practitioners should be alert to the specific state requirements necessary for their clients contemplating filing joint returns under common-law marriage statutes, as well as those who might be submitting returns as "married, filing separately."
English-speaking Caribbean
Thanks to their colonial past, the islands of the English-speaking Caribbean have similar statues concerning common law marriage to those in England. However, in the Caribbean, the term "common law" marriage is also widely described, by custom as much as by law, to any long term relationship between male and female partners. Indeed, such informal unions are widespread, making up a significant percentage of the families many of which have children and indeed may last for many years without the benefit of clergy. The reasons for these informal but durable units is a matter of considerable debate in sociological literature. Likewise although the acceptance of this type of union varies, men being more inclined to consider them as legitimate than women, there is a high degree of recognition of such unions that they amount to an institution.See also
- CohabitationCohabitationCohabitation usually refers to an arrangement whereby two people decide to live together on a long-term or permanent basis in an emotionally and/or sexually intimate relationship. The term is most frequently applied to couples who are not married...
- Domestic partnershipDomestic partnershipA domestic partnership is a legal or personal relationship between two individuals who live together and share a common domestic life but are neither joined by marriage nor a civil union...
- FamilyFamilyIn human context, a family is a group of people affiliated by consanguinity, affinity, or co-residence. In most societies it is the principal institution for the socialization of children...
- Family lawFamily lawFamily law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
- Mop weddingMop weddingMop weddings, or mop marriages, were once a traditional marriage method, mainly in England. It is presumed that, like the earliest Mop Fairs where they were celebrated, they date back to the 13th or 14th century, though it is possible that the tradition originated in pagan practices.Evidence from...
- Nikah 'urfi
- Pacte civil de solidaritéPacte civil de solidaritéIn France, a pacte civil de solidarité commonly known as a PACS /paks/ , is a form of civil union between two adults for organising their joint life. It brings rights and responsibilities, but less so than marriage...
- Putative marriagePutative marriageA putative marriage is an apparently valid marriage, entered into in good faith on the part of at least one of the partners, but that is legally invalid due to a technical impediment, such as a preexistent marriage on the part of one of the partners. Unlike someone in a common-law, statutory, or...
External links
- The Alternatives to Marriage Project is a national US organization for unmarried people
- Dorian Solot and Marshall Miller, common-law Marriage Fact Sheet
- Treatise on common-law Marriage
- Hilary B. Miller, Esq.'s Connecticut Divorce Home Page - Discussion of common-law Marriage
- Common-law marriage ID Card Developed in Israel by New Family Organization