Marriage is one of those big life changes that inspire songs and celebrations. But not everybody plans a fancy white wedding or even a civil ceremony. "Common law" marriages don't require the church or the state to sign off, so if that's the choice you make, a marriage license isn't on the "to-do" list. Before you dive into a common law marriage, however, you'll want to be sure that your state recognizes common law marriage instead of mandating licensing for every married couple. More states require marriage licenses than don't, so it's not as easy as you may think. Even those that allow common law marriages often impose restrictions.
Common Law Marriage
Before the different states started writing down laws regulating human behavior and interactions, the common law reigned. Common law was the unwritten body of law in England in yesteryear, based on community and societal customs generally not written into statute books.
Common law was recognized and enforced by the courts. Courts enforcing the law relied on earlier court decisions rather than written laws or statutes. Common law governed both England and the American colonies prior to the American Revolution.
Common Law Marriage
Like the rest of the common law tradition, common law marriages are not based on state statutes and rules about getting a marriage license. Rather, a couple wishing to marry under the common law would simply start living together and consider themselves spouses.
This type of marriage is recognized in some states even today, and a common law spouse is entitled to many or all the rights that a spouse has under law. But more states do not recognize common law marriages than do recognize them. Those that do usually require that the couples pass the "two-prong" test, establishing that they live together (cohabit) and hold themselves out as a married couple. The latter can be established by proof of sharing a last name or filing joint tax returns.
The states that do not require a marriage license are those that recognize common law marriage. Laws change every day, so check your own state's laws before entering into a common law marriage. These are some states that permit these types of marriages at time of publication: Alabama, Colorado, District of Columbia, Georgia, Idaho, Iowa, Kansas, Montana, New Hampshire, Ohio, Oklahoma, Rhode Island, South Carolina, Texas and Utah.
Common Law Marriage Restrictions
Note that some of these states recognize only common laws marriages that occurred before a certain date. For example, Georgia only recognized common law marriages created before 1/1/97, Florida those created before 1/1/68, and Ohio those created before 10/10/91. Other limitations and restrictions apply. For example, New Hampshire only recognizes a common law marriage after one partner dies. In Texas, the common law marriage must be registered with the state.
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With a Master's in English, a Master of Fine Arts in Creative Writing, and J.D. from U.C. Berkeley's law school, Teo Spengler is up on education. She splits her home time between San Francisco and France. A perpetual student and frequent teacher, she is also a writer and world traveler. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Arizona Central, Fairmont Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites.