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Common-Law Marriage States
by Demian
© March 11, 2010, Demian


Common-law marriage is only available in certain states in the United States and, until marriage was legalized for same-sex partners in the District of Columbia, never applied to same-sex couples.
      [See our article: District of Columbia Offers Legal Marriage]

A common-law marriage allowes for some marriage law to apply to couples who have lived together a certain length of time. The exact laws that apply — and the time necessary to trigger common-law status — vary by state.

Generally speaking, a common law marriage status for those states that offer it require that a couple:

  • Live together for a “significant period of time” (usually not defined by state law).
  • Hold themselves out as a married couple (using the same last name, referring to the other as “my husband” or “my wife,” etc.).
  • Intend to be married.
Contrary to popular belief, a common law marriage is not created when two people simply live together for a certain number of years. Also, when a common law marriage exists, the spouses receive the same legal treatment given to formally married couples, including the requirement that have a legal divorce to end their marriage.

Many states that offered common-law marriage have abolished it by statute. Common-law marriage was seen by legislators as encouraging fraud, condoning vice, debasing conventional marriage, and as no longer necessary with easy access to the agents of the state that officiate legal marriage — such as clergy, and justices of the peace.

Courts outside of the U.S. have periodically used their country’s common-law marriage status to allow certain domestic partner benefits apply to same-sex couples, most notably in Canada.
      [Please see our article: Legal Marriage Report]

Common-Law Marriage States
State Requirements
Alabama Capacity
An agreement to be husband and wife
Consummation of the marital relationship
Alaska NO LONGER RECOGNIZED
    Recognized from March 7, 1939-December 31 1963
American Samoa Submitted to the chief counsel if alleged
Colorado Established by proving cohabitation and a reputation of being married
District of Columbia An express, present intent to be married
Cohabitation
NOW ALLOWS LEGAL MARRIAGE for same-sex couples.
      See: District of Columbia Offers Legal Marriage
Florida NO LONGER RECOGNIZED
    Recognized before January 2, 1968
Georgia NO LONGER RECOGNIZED
    Recognized only if concluded prior to January 1, 1997
Guam NO LONGER RECOGNIZED
    Recognized before 1948
Idaho NO LONGER RECOGNIZED
    Recognized only if concluded prior to January 1, 1996
Indiana NO LONGER RECOGNIZED
    Recognized before January 1, 1958
Iowa Intent and agreement to be married
Continuous cohabitation
Public declarations that the parties are husband and wife
Kansas Have the mental capacity to marry Agree to be married at the present time Represent to the public that they are married
Michigan NO LONGER RECOGNIZED
    Recognized before January 1, 1957
Minnesota NO LONGER RECOGNIZED
    Recognized before April 27, 1941
Mississippi NO LONGER RECOGNIZED
    Recognized before April 5, 1956
Montana Capacity to consent to the marriage
An agreement to be married
Cohabitation
A reputation of being married
Nevada NO LONGER RECOGNIZED
    Recognized before March 29, 1943
New Hampshire For inheritance only
Cohabiting couple acknowledges each other as husband and wife and generally reputed to be such for three years, and until one of them dies shall thereafter be deemed to have been legally married
All events must occur in New Hampshire
Ohio NO LONGER RECOGNIZED
    Recognized only if concluded prior to October 10, 1991
Oklahoma NO LONGER RECOGNIZED
    Recognized only if concluded prior to 1994
    Be competent
    Agree to enter into a marriage relationship
    Cohabit
Pennsylvania NO LONGER RECOGNIZED
    Recognized only if concluded prior to September 17, 2003
    Established if a man and woman exchange words that indicate
    that they intend to be married at the present time
Rhode Island Serious intent to be married
Conduct that leads to a reasonable belief in the community that the man and woman are married
South Carolina Established if a man and woman intend for others to believe they are married
South Dakota NO LONGER RECOGNIZED
    Recognized before July 1, 1959
Tennessee For inheritance only
Texas Man and woman must sign a form provided by the county clerk
Agree to be married
Cohabit
Represent to others that they are married
Utah Be capable of giving consent and getting married
Cohabit
Have a reputation of being husband and wife
Virgin Islands NO LONGER RECOGNIZED
    Recognized before September 1, 1957


Cases dealing with Common-Law Status

  • Pennsylvania

    This state had a common-law marriage status until an appeals court abolished it on September 17, 2003. The court said that it is no longer necessary to give longtime, live-in couples the benefits of marriage without a license. The Commonwealth Court said recognizing such unions has created an impossible situation for third parties trying to determine whether a person is married or single.

    “Many sound reasons exist to abandon a system that allows the determination of important rights to rest on evidence fraught with inconsistencies, ambiguities and vagaries,” Judge Bonnie Brigance Leadbetter wrote in her decision.

    She added that the circumstances that created a need for common-law marriage have dissipated. These were the potential unavailability of a preacher in colonial times, and the dependence of women on men for support.

    The ruling, was made in the case of John Kretz, who sought pension benefits after his common-law wife, Janet Stamos, died in a 1994 plane crash. The ruling will not affect any existing common-law marriages, but will bar people from entering into them in the future. The case could be appealed.

  • Washington State

    There have been some court judgments in Washington which have created a “quasi-common-law” status. This has sometimes been applied to same-sex couples.

    This “quasi” status was totally dismissed for use by for same-sex couples in an Appeals Court ruling on February 11, 2000 in Vasquez v. Hawthorne. However, in May 2002, the state Supreme Court ruled that their 30-year, same-sex relationship was enough like a marriage to grant the survivor a share of his deceased partner’s estate.

    In November 2002, a Yakima County Superior Court judge ruled that two women ending a 10-year relationship divide their assets equally, a decision that amounts to a divorce in a state that did not recognize same-sex marriage. Judge Heather Van Nuys said the relationship between Yakima physician Julia Robertson and Seattle nurse Linda Gormley was “sufficiently marriagelike to provide equitable relief.”

    Future state laws could easily eliminated these “quasi-common-law” status situations.


States Without “Common-Law” Status That Recognize
Other States’ Common-Law Marriages
Arizona
Arkansas
California
Delaware
Hawaii
Maryland
Minnesota
Missouri
Nebraska
New York
North Carolina
Oregon
Tennessee
Virginia
Washington
West Virginia



Governments that offer Full Legal Marriage
Nations

    Netherlands (2001)
    Belgium (2003)
    Canada (2005)
    Spain (2005)
    South Africa (2005)
    Norway (2009)
    Sweden (2009)
    Iceland (2010)
    Argentina (2010)
    Portugal (2010)
    Denmark (2012)
    France (2013)
    New Zealand (2013)
    Brazil (2013)
    Uruguay (2013)
    New Zealand (2013)
    United Kingdom
      (England, Wales, Scotland) (2013)
    Luxembourg (2014)
    Finland (2014)
    Ireland (2015)
    United States (2015)
    Colombia (2016)
    Germany (2017)
    Taiwan (2017)
    Malta (2017)
US States & Territories

    Massachusetts (2004)
    California (2008)
    Connecticut (2008)
    Iowa (2009)
    Vermont (2009)
    New Hampshire (2009)
    District of Columbia (2009)
    New York (2011)
    Maine (2012)
    Washington (2012)
    Maryland (2013)
    Rhode Island (2013)
    Delaware (2013)
    Minnesota (2013)
    Illinois (2013)
    Utah (2013)
    New Jersey (2013)
    Hawaii (2013)
    New Mexico (2013)
    Michigan (2014) - stayed pending legal challenge
    Oregon (2014)
    Wisconsin (2014)
    

    Arkansas (2014) - stayed pending legal challenge
    Pennsylvania (2014)
    Indiana (2014)
    Nevada (2014)
    Virginia (2014)
    Oklahoma (2014)
    Idaho (2014)
    West Virginia (2014)
    Alaska (2014)
    Arizona (2014)
    Wyoming (2014)
    Kansas (2014) - stayed pending legal challenge
    Florida (2014)
    Colorado (2014)
    North Carolina (2014)
    South Carolina (2014)
    Montana (2014)
    Alabama (2015)
    U.S. Supreme Court (June 26, 2015):
      Ruling: All U.S. States must now
      allow same-sex couples the
      freedom of legal marriage.
Native American Tribes

    Coquille Tribe, Oregon (2009)
    Mashantucket Pequot, Connecticut (2011)
    Suquamish Tribe, Washington (2011)
    Confederated Tribes of the Colville Reservation, Washington (2013)
    Leech Lake Band of Ojibwe, Minnesota (2013)
    Little Traverse Bay Bands of Odawa Indians, Michigan (2013)
    Pokagon Band of Potawatomi Indians, Michigan (2013)
    Santa Ysabel Tribe, California (2013)
    Confederated Tribes of the Colville Nation, Washington (2013)
    Cheyenne, Oklahoma (2013)
    Arapaho, Oklahoma (2013)
    Leech Lake Tribal Court, Minnesota (2013)
    Puyallup Tribe, Washington (2914)
    Wind River Indian Reservation, Wyoming (2014)
    Keweenaw Bay Indian Community, Michigan, (2014)
    Colville Confederated Tribes, Washington (2014)
    Central Council of Tlingit, Alaska (2015)
    Haida Indian Tribes, Alaska (2015)

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