James R. Balmforth: Basics of Common Law Marriage

In the United States, common law marriage has been in existence since the horse and buggy days of 1877. While it might sound like an archaic form of matrimony, it’s still technically around today in one form or another in ten (10) states and the District of Columbia. Additionally, five (5) states recognize common law marriages with some restrictions.

Definition of Common Law Marriage

A common law marriage is one in which the couple, usually a man and woman, lives together for a period of time and holds themselves out to friends, family and the community as “being married,” but never go through a formal ceremony or get a marriage license. Here are three requirements for most states. Just “living together” is not enough to validate a common law marriage.

You must live together (amount of time varies by state).
You both must have the legal right or “capacity to marry”

Both must be 18 years old (varies by State);
Both must be of sound mind;
Both must not be married to someone else.

You both must intend to be married.
You both must hold yourself out to friends and family as being a married couple such as:

Taking the same last name;
Referring to each other in public as “husband” or “wife;”
Joint bank accounts;
Joint credit cards.

States that Recognize Common Law Marriage

The following states fully recognize common law marriage:

Colorado
District of Columbia
Iowa
Kansas
Montana
Rhode Island
South Carolina
Texas (calls it “informal marriage”)
Utah

States with Limited Recognition of Common Law Marriages

The following states formerly recognized common law marriages, and will generally still recognize them if couples satisfied all the requirements before the ban was in place.

Georgia (if created before January 1, 1997)
Idaho (if created before January 1, 1996)
New Hampshire (for inheritance purposes only)
Oklahoma (if created before November 1, 1998)
Ohio (if created before October 10, 1991)
Pennsylvania (if created before January 1, 2005)

Same-Sex Marriage and Common Law

Iowa, Rhode Island and the District of Columbia were the first to recognize common law same-sex marriages. Most other common law states make the law gender-specific so only a man and a woman can enter into a common law marriage. Now the entire United States recognizes Same-Sex marriage.

What If We Couldn’t Get Married When We Started Living Together?

Even if you don’t have capacity to marry when you start living with someone, you can still end up in a common law marriage.

This could happen if:

You or your partner gets a divorce while you are living together in a common law state; or
You move in with someone who is married, and their spouse dies while you are living with them.

Does a Common Law Marriage End When We Split Up?

No. Once established, a common law marriage is just as valid and binding as a formal wedding and marriage would be. It lasts until a court grants a divorce or one partner dies.

What Happens if My Common Law Spouse Dies?

You will have to prove your marriage to be able to inherit and receive insurance benefits, Social Security Survivor’s Benefits or pension benefits.

How to Tell If a Common Law Marriage Exists

Generally speaking, the strongest evidence that both partners intended to be married would be a written agreement between them. Ultimately, you only know for sure if there is a common law marriage when a judge says so.

Here are some factors a court would look at to determine if you are or were in a common marriage

These include:

Did you two live together?
Did the woman use the man’s last name?
Did you sign contracts together to buy a home? A car?
Did you file joint tax returns?
Did you have joint bank accounts?
Did you each refer to each other as husband and wife?
Did you share household duties and expenses?
Did you have and raise children together?

The most important thing you should do when you want to have a common law marriage established in Utah is to talk to a lawyer and get the court process done. If you don’t do it while you are both alive, it will be extremely difficult to do after a spouse has passed away.