The Legal Recognition of Common Law Marriage

Is Common Law Marriage Still Enforced? How Is a Common Law Marriage Terminated?

The vast majority of people who get married do so by getting a marriage license and having a ceremony, either in a church or at the courthouse. The idea that two people could be legally married, with enforceable rights, having done nothing other than cohabitate for a certain period of time seems archaic or old-fashioned, something that was done 150 years ago. You might wonder whether there is still such a thing as “common law marriage“? If so, where is it legal and what are the requirements? How do you dissolve a common law marriage?

What Are the Origins of Common Law Marriage in the United States?

The principle of common law marriage has been recognized in some form for centuries, if not millennia. When the first colonists came to the new world, the practice was still legal in England. The English banned the practice in 1753, but it remained legal in the U.S. colonies. Maine and Massachusetts outlawed common law marriages in the 18th century, but it remained in place in most other parts of the nation.

Is Common Law Marriage Still Enforced in the United States?

Yes, but on a very limited basis. As of 2024, individuals in seven states and the District of Columbia may still have a statutory right to exercise marital rights without any type of marriage ceremony or license. Though the specific requirements vary from state to state, there are typically two requirements of a common law marriage: that the couple (1) cohabitate for a statutorily prescribed period of time and (2) hold themselves out to others as being married. Most states that allow common law marriage also require that the parties have “legal capacity to marry.” That generally means they must be of a certain age (minors are generally not allowed to be a party to a common law marriage) and must be of sound mind. Furthermore, states generally require that both parties willingly consent to the common law marriage.

Where Is Common Law Marriage Sanctioned?

The jurisdictions that currently permit common law marriage are Texas, Colorado, Montana, Kansas, Iowa, Rhode Island, and the District of Columbia. The status of common law marriage in Oklahoma is currently uncertain.

Another nine states recognize limited rights to common law marriage: Alabama, Florida, Georgia, Idaho, Indiana, New Hampshire, Ohio, Pennsylvania and South Carolina. For example, New Hampshire will consider a common law marriage only for purposes of a probate proceeding. A number of states have grandfathered in common law marriages before a specific date. Pennsylvania, for example, considers common law marriage valid only if the requirements were met by 2005.

What Does It Mean to Hold Yourself Out as Being Married?

Courts in the various states that allow common law marriage have cited a number of behaviors as meeting the test for whether a couple has held itself out as being married:

• Co-ownership of real property or financial accounts
• Legally changing one’s name to that of the other partner
• Commonly referring to each other in public as husband, wife, or spouse
• Changing one’s name on social media or other accounts to match that of a partner

How Is a Common Law Marriage Terminated?

The law does not recognize the concept of “common law divorce.” If you live in a state that sanctions common law marriage and you meet the requirements, the only way to terminate the marriage is through the formal divorce process in court. A common law marriage is typically considered valid until a divorce order is granted or one of the parties dies.