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What Is Common Law Marriage?

What Is Common Law Marriage

A common law marriage occurs when a couple proclaims themselves to be married by their words and actions, and live together as husband and wife. These actions can include filing joint tax returns and the wife taking on the last name of the husband. In some jurisdictions, a significant time period also must have passed during the time in which the proclamations have been made.

Simply living together is not enough to constitute a common law marriage.

In the United States, common law marriages can be created only within ten states. Alabama, Colorado, Iowa, Kansas, Montana, North Carolina, Oklahoma, Rhode Island, South Carolina, and Texas, as well as the District of Columbia, consider common law marriage as legally binding as any other recognized marital status.

In all other states, common law marriage – known outside of the United States as marriage by habit and repute, de facto marriage, and informal marriage – has no legal consequences. If, however, a common law marriage between a couple was created validly within a common law state, all other states will recognize it also. It simply cannot be created within them. For example, a common law marriage which was created in Alabama will also be valid in California, even though California has no common law marital status itself. This is done under the principles of comity.

Utah will recognize common law marriage only when it has been validated by a court, and New Hampshire will allow it for probate purposes alone.

In comparison to regular ceremonial marriage, a common law marriage is not licensed by governmental entities and they are not solemnized. There is no such thing as a “common law divorce,” although Texas will allow common law marriages to be annulled. In order to dissolve the marriage, the process is the same as with a ceremonial marriage; it must be done through a trial court. A probate or family court will normally be used.

As with ceremonial marriages, a common law marriage cannot be created when one or both partners are at that time married civilly to other parties, until dissolution of the previous marriage is complete.

The only state to currently recognize same-sex common law marriages is Iowa, but this has been untested in court. No other states permit common law marriages between same-sex couples.

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