Common-law marriage is often contrasted with the ceremonial marriage.
Essential distinctions
The essential distinctions of a common-law marriage are:
- Common-law marriages are not licensed by government authorities, although they may be recorded in the public records of some governmental entities.
- Common-law marriages are not solemnized.
-
Cohabitation alone does not create a common-law marriage; the
couple must hold themselves out to the world as spouses; and
- There must be mutual consent of the parties to the relationship constituting a marriage
- Both parties must be of legal age to enter into a marriage or have parental consent to marry
- Both parties must be otherwise qualified to enter into a marriage, including being unmarried, of sound mind, and, in many states, not sentenced to or serving a term of life in prison
- In some jurisdictions, a couple must have cohabited and held themselves out to the world as husband and wife for a significant period of time, not defined in any state, for the marriage to be recognised as valid.[1]
There is no such thing as "common-law divorce". Once a marriage is validly contracted, whether according to statute or according to common law, the marriage can be dissolved only by a legal proceeding in the pertinent trial court, usually family court or probate court.[1]
In the US state of Texas, a new provision was added to the Family Code; either partner in a common-law marriage has two years after separation to file an action in order to prove that the common-law marriage existed. To use the provision, the separation must have occurred after September 1, 1989.[2]
Since the mid-1990s, the term "common-law marriage" has been used in parts of Europe and Canada to describe various types of domestic partnership between persons of the same sex as well as persons of the opposite sex. Although these interpersonal statuses are often, as in Hungary, called "common-law marriage" they differ from true common-law marriage in that they are not legally recognized as "marriages" but are a parallel interpersonal status, known in most jurisdictions as "domestic partnership", "registered partnership", or "civil union".
Not all agreements break statutes. Some are illegal because they break public policy, which is generally "to discourage any interference with the freedom of choice". An agreement forbidding a party to marry or bribing a party to refrain from marriage is considered "Interference with Marriage Relation" or an "Agreement in Restraint of Marriage"; such agreements are typically held to be nonbinding.[3][4]
.History
In medieval Europe, marriage came under the jurisdiction of canon law, which recognised as a valid marriage one where the parties stated that they took one another as wife and husband, even in absence of any witnesses.
The Roman Catholic Church abolished clandestine marriage at the Council of Trent (1545–1563), ruling that in the future a marriage would be valid only if it was witnessed by a Catholic priest or, if obtaining one was impractical, by other witnesses. This was not meaningful for Protestants or for the Eastern Orthodox. England abolished clandestine or common-law marriages in the Marriage Act 1753,[citation needed] requiring marriages to be performed by a priest of the Church of England unless the participants in the marriage were Jews or Quakers. The Act applied to Wales, and to Ireland after the Act of Union 1800, although the requirement for a Church of England priest created problems in predominantly Roman Catholic Ireland. The law did not provide an exception there. The Act did not apply to Scotland because by the Acts of Union 1707 Scotland retained its own legal system. To get around the requirements of the Marriage Act, such as minimum age requirements, couples would go to Gretna Green, in southern Scotland, to get married under Scots law.
The Marriage Act of 1753 also did not apply to Britain's overseas colonies of the time, so common-law marriages continued to be recognised in the future United States and Canada. In the United States, new common-law marriages arising in the state are still recognised in Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah, the District of Columbia,[5] under military law,[6] and in Canada, several provinces recognize them. Almost all U.S. states recognize common-law marriages validly entered into at a time and place where common-law marriage was recognized, although some impose certain public-policy exceptions to the recognition of common-law marriages involving minors or persons who would not be entitled to marry in that state for some reason. A common law marriage occurring under military law is not binding on the non-military spouse (if a mixed marriage) and therefore unlikely to be recognized by some jurisdictions.
All countries in Europe have now abolished "marriage by habit and repute",[citation needed] with Scotland being the last to do so in 2006.[7]
.Common-law marriage by country
.Australia
In Australia the term de facto relationship is often used to refer to relationships between any two persons who are not married but are effectively living in certain domestic circumstances. The legal term for such relationships varies by state and territory (however common-law marriage is not used anywhere in Australia):
| State | Name | Law |
|---|---|---|
| New South Wales | "Domestic relationship", encompassing "de facto relationships" and "close personal relationships" | Property (Relationships) Act 1984 |
| Victoria | "Domestic relationship", defined to mean "de facto relationships" | Property Law Act 1958 Part IX |
| Queensland | "De facto relationship" | Property Law Act 1974 |
| South Australia | "Close personal relationship" | Domestic Partners Property Act 1996 |
| Western Australia | "De facto relationship" | Family Court Act 1997, Part 5A |
| Tasmania | "Personal relationship", encompassing "significant relationships" and "caring relationships" | Relationships Act 2003 |
| Australian Capital Territory | "Domestic relationship" and "domestic partnership" | Domestic Relationships Act 1994, Legislation Act 2001 s 169 |
| Northern Territory | "De facto relationship" | De Facto Relationships Act 1991 |
Although property aspects of these relationships are dealt with under state law, the law relating to children of such relationships is contained in the federal Family Law Act 1975. Most laws dealing with taxation, social welfare, pensions, etc., treat de-facto marriages in the same manner as solemnized marriages.
The Family Law Act states that a de-facto relationship can exist between two people of different or the same sex and that a person can be in a de-facto relationship even if legally married to another person or in a de-facto relationship with someone else. Same sex De-facto Relationships have been recognised in New South Wales since 1999. There are a number of methods by which these relationships are recognised in Australian law and they include the same entitlements as "Christian" marriage.
The federal Marriage Act 1961 provides for marriage, but does not recognize 'common-law marriages'. The former Howard government declared that marriage, as the Christian ideal, can exist only between a man and a woman. This allowed for the overriding of marriage laws instituted in the ACT but did not impact on the legal standing of De-facto relationships.
.Canada
In Canada, the legal definition and regulation of common-law marriage fall under provincial jurisdiction. A couple must meet the requirements of their province's Marriage Act for their common-law marriage to be legally recognized.
According to the Canada Revenue Agency, as of 2007, a common-law relationship is true if at least one of the following applies:
a) the couple have been living in a conjugal relationship for at least 12 continuous months;
b) the couple are parents of a child by birth or adoption; or
c) one of the couple has custody and control of the child (or had custody and control immediately before the child turned 19 years of age) and the child is wholly dependent on that person for support.
For a full, up to date CRA description go here: Marital Status
In many cases common-law couples have the same rights as married couples under federal law. Various federal laws include "common-law status," which automatically takes effect once two people (of any gender) have lived together in a conjugal relationship for five full years. Common-law partners may be eligible for various federal government spousal benefits. As family law varies between provinces, there are differences between the provinces regarding the recognition of common-law marriage.
In 1999, after the court case M. v. H., the Supreme Court of Canada decided that same-sex partners would also be included in common-law relationships.
.Ontario
In Ontario, the Ontario Family Law Act specifically recognizes common-law spouses in sec. 29, dealing with spousal support issues; the requirements are living together for no less than three years[8] or having a child in common and having "cohabitated in a relationship of some permanence". The three years must be continuous, although a breakup of a few days during the period will not affect a person's status as common-law. However, the part that deals with marital property excludes common-law spouses, as sec. 2 defines spouses as those who are married together or who entered into a void or voidable marriage in good faith. Thus, common-law partners do not always evenly divide property in a breakup, and the courts have to look to concepts such as the constructive or resulting trust to divide property in an equitable manner between partners. Another difference that distinguishes common-law spouses from married partners is that a common-law partner can be compelled to testify against his or her partner in a court of law.
.Québec
The Civil Code of Québec has never recognized a common-law partnership as a form of marriage. However, many laws in Québec explicitly apply to common-law partners (called conjoints de fait) in "de facto unions" (marriages being "de jure unions"), as they do to marriage spouses.[9] Same-sex partners are also recognized as "conjoints de fait" in de facto unions, for the purpose of social benefit laws.[10] However, common-law partners do not have any legal rights between them, such as alimony, family patrimony, compensatory allowance and matrimonial regime.
A 2002 amendment to the Civil Code recognizes a type of domestic partnership called a civil union that is similar to marriage and is likewise available to same-sex partners.
Same-sex partners can also marry legally in Quebec, as elsewhere in Canada.
.Other provinces
The requirements in some other provinces are as follows:
In British Columbia a person who has lived and cohabited with another person, for a period of at least 2 years is considered a common law spouse according to the "Estate Administration Act" [11]
In Nova Scotia, a couple must cohabit for two years in a marriage-like relationship.
In New Brunswick, a couple must live together for 3 years or have a natural or adopted child together.[12]
In Alberta, common-law marriage has been subsumed since 2003 under the terms of the Adult Interdependent Relationship Act[13], which may additionally apply to any two unrelated people living together in a mutually dependent relationship for three years.
.Israel
Israeli law recognizes common-law marriage (ידוע בציבור) particularly since an apparatus for civil marriage is absent, and many couples choose to avoid a religious marriage or are barred from it. Israeli law makes provisions for common-law spouses, but is murky as to the period of time that needs to pass before a relationship can be recognized as common-law marriage. Unlike marriage, the spouses need to provide proof of their relationship in order to gain access to the various benefits and rights which accompany a common-law marriage.
.United Kingdom
.England and Wales
The term “common-law marriage” has been used in England and Wales since the 1960s to refer to unmarried, cohabiting heterosexual relationships[14]. However, this is merely a social usage: the term does not confer on cohabiting parties any of the rights or obligations enjoyed by spouses or civil partners. Unmarried partners are recognised for certain purposes in legislation: e.g., for means-tested benefits. For example, in the Jobseekers Act 1995, “unmarried couple” was defined as a man and woman who are not married to each other but who are living together as husband and wife otherwise than in prescribed circumstances. But in many areas of the law cohabitants enjoy no special rights. Thus when a cohabiting relationship ends ownership of any assets will be decided by property law: the courts have no discretion to reallocate assets, as occurs on divorce.
It is sometimes wrongly claimed[15] that before the Marriage Act 1753 cohabiting couples would enjoy the protection of a "common-law marriage". In fact, neither the name nor the concept of “common-law marriage” was known at this time[14]. Far from being treated as if they were married, couples known to be cohabiting risked prosecution by the church courts for fornication. Nor did couples have the option of marrying informally: historians such as Lawrence Stone have erroneously suggested that, before the Marriage Act 1753, the canon law of the Church of England recognized "contract marriages" by mutual consent, and that the Act abolished such informal “common-law marriage”. More recent scholarship though has demonstrated that “contracts to marry”, or more strictly contracts per verba de praesenti,(which Stone and others such as Stephen Parker had misconstrued as “contract marriages”) were never accorded the legal status of a valid marriage[16].
The mistaken assumption that it had once been possible to create a “common-law marriage” by a simple exchange of consent in England and Wales dates only from a nineteenth century case [17]. This decision would have had no impact on the subsequent development of English law had it not been for the fact that the Marriage Act 1753 did not apply overseas. English courts later held that it was possible to marry by a simple exchange of consent in the colonies, although most of the disputed ceremonies involved the ministrations of a priest or other clergyman. The influence of American law led to such marriages being described as “common-law marriages”.
The English courts also upheld marriages by consent in territories not under British control, though only if it had been impossible for the parties to marry according to the requirements of the local law[18]. The late 1950s and early 1960s saw a spate of cases arising out of the Second World War, with marriages in prisoner-of-war camps in Nazi-occupied Europe posing a particular problem for judges[14]. (Some British civilians interned by the Japanese during the Second World War were held to be legally married after contracting marriages under circumstances where the formal requirements could not be met.) To this limited extent English law does recognise what has become known as a “common-law marriage”. English legal texts initially used the term to refer exclusively to American common-law marriages[14]. Only in the 1960s did the term “common-law marriage” begin to be used in its contemporary sense to denote unmarried, cohabiting heterosexual relationships [19] and not until the 1970s and 1980s did the term begin to lose its negative connotations [19]. The use of the term may have encouraged cohabiting couples to believe that they enjoyed legal rights when this was not in fact the case.
.Scotland
Under Scots law, there have been several forms of "irregular marriage":
- Irregular marriage by declaration de presenti—Declaring in the presence of two witnesses that one takes someone as one's wife or husband.
- Irregular marriage conditional on consummation.
- Irregular marriage by cohabitation with habit and repute.
The Marriage (Scotland) Act 1939 provided that the 1st and 2nd forms of irregular marriage could not be formed on or after 1 January 1940. However, any irregular marriages contracted prior to 1940 can still be upheld. This act also allowed the creation of regular civil marriages in Scotland for the first time. (The civil-registration system started in Scotland on 1 January 1855.) Until this act the only regular marriage available in Scotland was a religious marriage. Irregular marriages were not socially accepted and many people who decided to contract them did so where they were relatively unknown. In some years up to 60% of the marriages in the Blythswood Registration District of Glasgow were "irregular".
In 2006 "marriage by cohabitation with habit and repute" was also abolished in the Family Law (Scotland) Act 2006. Until that act had come into force, Scotland remained the only European jurisdiction never to have totally abolished the old-style common-law marriage. For this law to apply, the minimum time the couple have lived together continuously had to exceed 20 days.
As in the American jurisdictions that have preserved it, this type of marriage can be difficult to prove. It is not enough for the couple to have lived together for several years, but they must have been generally regarded as husband and wife: e.g., their friends and neighbours must have known them as "Mr. and Mrs. So-and-so" (or at least they must have held themselves out to their neighbours and friends as Mr. and Mrs. So-and-so). And, like American common-law marriages, it is a form of lawful marriage, so that people cannot be common-law spouses, or husband and wife by cohabitation with habit and repute, if one of them was legally married to somebody else when the relationship began.
It is a testament to the influence of American legal thought and English colloquial usage that, for a study conducted by the Scottish Executive in 2000, 57% of Scots surveyed believed that couples who merely live together have a "common-law marriage". In fact, that term is unknown in Scots law, which uses "marriage by cohabitation with habit and repute". "Common-law marriage" is an American term. Otherwise, men and women who otherwise behave as husband and wife do not have a common-law marriage or a marriage by habit and repute merely because they set up housekeeping together, but they must hold themselves out to the world as husband and wife. (In many jurisdictions, they must do so for a certain length of time for the marriage to be valid.) The Scottish Survey is not clear on these points.[20] It notes that "common-law marriage" is not part of Scots law, but it fails to note that "marriage by cohabitation with habit and repute"—which is the same thing but in name—was part of Scots law until 2006.
.United States
The tradition of common-law marriage was affirmed by the United States Supreme Court in Meister v. Moore (96 U.S. 76 (1877)), which ruled that Michigan had not abolished common-law marriage merely by producing a statute establishing rules for the solemnization of marriages. Since Michigan did not require marriages to be solemnized, the court held, the right to marry that existed at common-law existed until state law affirmatively changed it. The Court held that in order to bar common-law marriage, a state's general marriage statute must indicate that no marriage would be valid unless the enumerated statutory requirements were followed.
Common-law marriage is still valid in 13 states (Alabama, Colorado, Georgia, Idaho [only if before 1-1-96], Iowa, Kansas, Montana, Ohio [only if before 10-10-91], Oklahoma, Pennsylvania, Rhode Island, South Carolina and Texas) and the District of Columbia, can no longer be contracted in 26 states, and was never permitted in 11 states. The requirements for a common-law marriage to be validly contracted differ from state to state. Nevertheless, all states—including those that have abolished the contract of common-law marriage within their boundaries—recognize common-law marriages lawfully contracted in those jurisdictions that still permit it. The Navajo Nation allows common-law marriage and allows its members to marry using tribal ceremonial processes as well as traditional processes.[21] Some U.S. states, however, such as Colorado, more rigorously enforce public policy exceptions to their general duty to recognize foreign state or foreign country marriages valid where entered into in the case of common-law marriages.
There is no such thing as "common-law divorce"—that is, it is far easier to get into than it is to get out of. Only the contract of the marriage is irregular; everything else about the marriage is perfectly regular. People who marry per the old common-law tradition must petition the appropriate court in their state for a dissolution of marriage.
Texas, however, permits common-law marriages to be effectively annulled, if not established legally within a specified time after the parties separate. Likewise, common-law legal presumptions that a person who obtains a marriage license has obtained a divorce from all prior marriages before remarrying, in the absence of proof to the contrary, can have a similar practical effect.
While a number of U.S. states recognize domestic partnerships with the same legal incidents, as marriage, no U.S. state except Iowa, where the law is untested, currently recognizes same sex common-law marriages. The Federal Defense of Marriage Act permits any state not to recognize same-sex marriages from another state, and provides that the federal government will not recognize any same-sex marriages.
.Income tax
The IRS does recognize common-law marriages, Practitioners should be alert to the specific state requirements necessary for their clients contemplating filing joint returns under common-law marriage statutes.
.
|