You may have heard the term “common law marriage” before. Maybe you know someone with a “common law marriage” (or so they claim). Basically, a common law marriage is when a couple is legally considered “married” under the eyes of state law even though they are not technically married (they don’t have a marriage certificate and never had a marriage ceremony). For example, John and Susan have been “dating” and living together for 40 years, but they never officially tied the knot. They meet all of their state’s requirements for common-law marriage, which means they may receive certain rights the same way as any other traditionally married couple (depending on the state). Let’s dive into this topic in depth, including which states allow common law marriage, why it even exists, and some real case law to demonstrate how it works!
Why wouldn’t everyone get a common-law marriage?
It sounds great, right?! You basically never have to pay for a wedding or go through the hassle of getting a marriage license, but you still get the benefit of being a married couple. So why wouldn’t everyone just do this instead of getting married? Well, for one, common law marriage is only recognized in a handful of states (more on which ones below). Even if you’ve been together for 50 years and call each other husband and wife, and everyone thinks you’re married, if your state doesn’t recognize common law marriages, you are SOL.
Another reason common law marriages aren’t ideal is because you usually have to prove them in court. Depending on what your state says about the requirements of common-law marriage, you’ll need to show those requirements to a judge and have them sign off on your common-law marriage. So, as you can see, getting a common-law marriage shouldn’t be your first path toward marital benefits. In fact, it really shouldn’t be a path at all. It’s more of a safety net for individuals who would otherwise be exceptionally unfairly treated in the case of a split or death if they weren’t considered married.
Why does common law marriage exist?
You may be wondering why on Earth common law marriage even exists. Just… get married if you want the law to recognize you as married, right? Well, yes, but sometimes things aren’t that straightforward. According to the Supreme Court of Colorado (and one of the few states left to allow common law marriage), “[R]ecognition of common law marriage allowed children of such unions to be treated as legitimate and prevented abandoned or widowed women from turning to the public fisc for their support.” Hogsett v. Neale. In other words, the reason common law marriage exists is to protect the interests of people who have lived together as spouses in good faith. The Supreme Court of Colorado also noted that common law marriage is a path to protect the interests of marginalized groups such as immigrants or same-sex couples who may not have been able to get married formally.
On the flip side, the argument against common law marriage, which most states agree with, they say that it’s no longer necessary as licensed marriage is so easily obtainable and affordable. You can get a marriage license and civil ceremony done in some states for less than $100.
Which states allow common-law marriage?
As of 2023, according to FindLaw.com, here are the states that allow common law marriage fully or in limited capacity:
| Alabama | Only if the “marriage” was created before 2017 (Ala. Code § 30-1-20) |
| Colorado | C.R.S. § 14-2-109.5 |
| D.C. | In re Est. of Jenkins |
| Florida | Only if the “marriage” was created before 1968 (Fla. Stat. § 741.211) |
| Georgia | Only if the “marriage” was created before 1997 (Ga. Stat. § 19-3-1.1) |
| Idaho | Only if the “marriage” was created before 1996 (I.C. § 32–201) |
| Indiana | Only if the “marriage” was created before 1958 (Ind. Code §31-11-8-5) |
| Iowa | Iowa Code § 595.1A; Iowa Code § 252A.3 |
| Kansas | Kan. Stat. § 23-2502; Kan. Stat. § 23-2714 |
| Montana | Mont. Stat. § 40-1-403 |
| New Hampshire | Only for inheritance of spousal estate purposes) (N.H. Stat. §457:39) |
| Ohio | Only if the “marriage” was created before 1991 (Ohio Stat § 3105.12) |
| Oklahoma | In re matter of Est. of Whitehouse |
| Pennsylvania | Only if the “marriage” was created before 2005 (Pa. Cons. Stat. Ann. tit. 23, § 1103) |
| Rhode Island | Smith v. Smith |
| South Carolina | Only if the “marriage” was created before 2019 (Stone v. Thompson) |
| Texas | Tex. Family Law §§ 2.401-2.402 |
| Utah | Not technically considered common law marriage, but you can request a judge to recognize the relationship as marital even though you never officially married (Utah Stat. § 30-1-4.5) |
A recent case from 2020
If you’re wondering what a real common law marriage case looks like, keep reading. In 2020, an Oklahoma court (In re matter of Est. of Whitehouse) dealt with the question of whether or not a couple was considered married by common law. The case at hand dealt with the death of a man (Whitehouse) and his long-time partner (Burris), and Burris was trying to establish herself as his common law wife to receive his estate after he passed. The estate was mostly comprised of the funds from a lawsuit due to the motorcycle crash.
The couple started dating back in 2002, moved in together in 2003, and had been residing together up until Whitehouse’s death (except for a brief period in 2009). They filed joint taxes together, Whitehouse was listed as a beneficiary spouse on Burris’ retirement account, they maintained a joint bank account together, they had joint car insurance listing the couple as married, Burris paid for funeral expenses, she supported Whitehouse financially throughout their relationship, and they even acted like they were married, introducing each other as a married couple to others.
In Oklahoma, to establish a common law marriage, there is a five-part test:
- (1) Was there an actual and mutual agreement between the spouses to be husband and wife?
- (2) Was there a permanent relationship?
- (3) Was there an exclusive relationship?
- (4) Was there proven cohabitation as man and wife;
- (5) and were the parties to the marriage holding themselves out publicly as husband and wife?
The Oklahoma court in this case said YES; there was a common law marriage established in this case. Therefore, Burris was considered Whitehouse’s wife, and, thus, considered a beneficiary of his estate.
Is there a common law divorce?
Nope! If you are considered common law married, then you will need to get a regular old divorce. There’s no special way of divorcing if you are common law married. You get treated generally the same in a divorce as if you had gotten a marriage license and done the marriage formally. The main difference in getting a divorce as a common law married person versus a traditionally married person is that you’ll first need to establish that you are common law married with a court before you are able to go through the regular divorce process. The process for this may be different from state to state.
How long do you have to live together to be considered common law married?
We’re so glad you asked! This is a common myth that we are so excited to debunk. People think that if you are simply living together for three to seven years (or more), you automatically become common law married. Nope! Sorry, it’s much harder than that. For example, in Oklahoma, the requirements are a five-part test in which you have to prove (the test includes proving you lived together, proving there was an agreement to be married, that you were a permanent and exclusive relationship, and acted as if you were married). (In re matter of Est. of Whitehouse).
In Colorado, to establish a common law marriage, there must be “mutual consent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement.” The court further explained that “the key question is whether the parties mutually intended to enter a marital relationship—that is, to share a life together as spouses in a committed, intimate relationship of mutual support and mutual obligation.” (Hogsett v. Neale).
In New Hampshire, the couple must be living together for three years AND acting as a married couple and have a reputation of being married. (N.H. Stat. §457:39). As you can see here, this is the type of state where the myth likely stems from–there IS a three-year living together requirement, but you also must be acting as if you’re married and have a reputation of being married.
The bottom line
In conclusion, common law marriage, though recognized in a few states, is not as widely used as many might think. While it may offer select benefits of being married without the formalities of a traditional marriage, it also typically requires proof and validation in court (i.e., it’s harder to get and to prove). The existence of common law marriage stems from historical and societal factors, serving to protect the interests of individuals in committed relationships, especially those marginalized or unable to formalize their unions through traditional means. However, it’s crucial to understand the specific requirements and limitations of common law marriage in each state. Ultimately, while common law marriage may help some people, it’s important to get married the traditional way, if possible, to ensure you receive all of the benefits of a married couple.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: [email protected]
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