Common law marriage is a form of marriage that is recognized without legal and civil formalities such as a marriage license or a ceremony and includes all of the rights, privileges, and duties of formal marriage. This form of marriage was an important recognition of rights for early settlers in the United States, where access to “legal” marriage was limited simply by the distances one would have to travel to be formally married by a member of the clergy or state official. However, the legal concept of common law marriage in the 20th century has almost completely died out through legislative changes and the relative ease of getting married in our increasingly mobile society. It is a legal concept entirely created in law and is generally determined by a court of law and rarely defined by statute. Only a handful of states still recognize it as a valid form of marriage. The reasons for abolishment of the recognition of common law marriage in most states range from religious beliefs to beliefs by legislatures that the recognition was no longer necessary.
Common law marriage has its roots, like so much of American law, in English law. It began as a type of marriage entered into sponsalia per verba de praesenti (by present words and not ceremony) in ecclesiastical law. Common law marriage in England could be accomplished in two ways, as above, through mutual assent in words of the present tense, or through mutual assent to marriage in the future, followed by sexual intercourse (sponsalia per verba de futuro cum copula). Common law marriage continued in England until the passage of Lord Hardwicke’s Act in 1753, which enacted certain formal requirements essential for recognition of a valid marriage. The institution of common law marriage followed the first English and European settlers to America.
The most common myth concerning common law marriage is that a couple has to live together for 7 years. Common law marriage has no requirement of living together for a certain number of years. The specific requirements for a valid common law marriage vary from state to state. In Kansas, for example, there are three requirements: (1) that the parties have the capacity to marry; (2) that the parties hold out each other to the public as husband and wife; and (3) that the parties have a present agreement between them to be married. Other states that recognize common law marriage have similar requirements.
While legal definitions differ from state to state, capacity to marry includes having the requisite mental or physical capacity to marry, not already being married to someone else, not being too closely related to the person, and being of a sufficient age to marry.
Evidence of many different activities can constitute holding out to the public as husband and wife. These activities can include living together, using the same last name, having joint bank accounts, filing joint tax returns, owning property jointly, introducing each other as husband and wife to friends, family, or the public, and many other marital behaviors.
Determining whether a present agreement to be married exists is the most difficult of the requirements for common law marriage to prove. The manifestations of someone in a relationship and the interpretation of those manifestations is what creates the difficulty in discovering if the parties had a present agreement to be married. Generally, consent to cohabit or a promise to get married in the future does not establish a sufficient present agreement to be married. Some courts have allowed the agreement to be married to be implied from the couple’s actions and circumstances. This fact intensive analysis is what makes analyzing common law marriage cases difficult.
There is no statutory common law divorce. The parties, once they have entered into a valid common law marriage, generally must go through divorce or annulment as dictated by state statute. However, no analysis of the above requirements comes into the courts until there is an issue between parties arising in contexts as varied as intestacy or probate, divorce, marital privilege, criminal prosecution, worker’s compensation, or termination of alimony.
- Crawley, J. B. (1998–1999). Is the honeymoon over for common-law marriage: A consideration of the continued viability of the common-law marriage Cumberland Law Review, 29, 399, 401.
- Elrod, L. D., & Buchele, J. P. (2001). Kansas family law (Kansas Law and Practice) 3.3. St. Paul, MN: Thomson West.
- In re Estate of Antonopoulos, 268 Kan. 178, 189, 993 P.2d 637 (1999).