Common-law marriage

Family law
Entering into marriage
Marriage
Common-law marriage
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Common-law marriage (or common law marriage), sometimes called informal marriage or marriage by habit and repute is, historically, a form of interpersonal status in which a man and a woman are legally married without need of official certification. The term is often mistakenly understood to indicate an interpersonal relationship that is not recognized in law. In fact, a common-law marriage is just as legally binding as a statutory or ceremonial marriage in most jurisdictions—it is just formed differently.

However, common-law marriage is becoming a thing of the past. It is difficult to show that a man and woman are truly husband and wife, with all the attendant responsibilities, without a clear ceremony and documentation marking the beginning of such a significant relationship. Thus, while common-law marriage may be legally acceptable, it may not satisfy the requirements of a true union of husband and wife that is foundational to human society.

Essential requirements

The essential requirements of a common-law marriage, distinguishing it from other relationships, are:

1. Common-law marriages are not licensed by government authorities.
2. Common-law marriages are not necessarily solemnized.
3. There is no public record of a common-law marriage (no marriage certificate).
4. Cohabitation alone does not amount to common-law marriage; the couple in question must hold themselves out to the world to be husband and wife.
5. In some jurisdictions, a couple must have cohabited and held themselves out to the world as husband and wife for a minimum length of time for the marriage to be recognized as valid.

Otherwise, the requirements are the same for common-law marriage as they are for statutory marriage, namely, the parties must mutually consent to be married, be of legal age or have their parents' permission, and so forth.

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 only be dissolved by a legal proceeding in the pertinent court (usually family court or probate court). 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 dissolution of marriage.

Since the mid-1990s, the term "common-law marriage" has been used in parts of Europe, notably Hungary, 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 arrangements are often 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" or "registered partnership."

Putative spouses

Many jurisdictions that do not have common-law marriage, and some that do, recognize the status of a "putative spouse." Unlike someone in a common-law marriage, a putative spouse is not actually married. Instead, a putative spouse believes himself or herself to be married in good faith and is given legal rights as a result of this person's reliance upon this good faith belief.

In Colorado, which is typical, "Any person who has cohabited with another person to whom he is not legally married in the good faith belief that he was married to that person is a putative spouse until knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights" (Section 14-2-111, Colorado Revised Statutes).

In the United States, a number of states followed the example of the Uniform Marriage and Divorce Act (also sometimes called the Model Marriage and Divorce Act) to establish the concept of a "Putative Spouse" by statute. The concept has been codified in California, Colorado, Illinois, Louisiana, Minnesota and Montana. Case law provides for putative spouse rights in Nebraska, Washington state and Nevada. Colorado and Montana are the only U.S. states to have both common-law marriage and to formally recognize putative spouse status. Putative spouse concepts, called "deemed marriages" are also recognized under the Social Security program in the United States.

The putative spouse concept is likewise recognized in Australia.

Unlike a common-law marriage, which is possible only when both spouses are legally eligible to marry, putative spouse status can be unilateral. For example, if a husband is already married, but goes through a marriage ceremony without informing the woman with whom he goes through with the ceremony of that fact, the husband is not a putative spouse, because he knows that he has no right to marry. This second wife, however, is a putative spouse because she in good faith believes that she is married, and has no knowledge that she is not legally married (Carndell v. Resley, 804 P.2d 272 (Colo. App. 1990) and Williams v. Fireman's Fund Ins. Co., 670 P.2d 453 (Colo. App. 1983)).

In this example, the putative wife who believed she was married could seek the property division and alimony awards that a legal spouse could have, when the putative spouse discovers that she is not legally married. However, the man could not seek a property division of property in the putative wife's name or alimony from her, because he knew that they were not married.

Putative spouse status is thus a remedial doctrine designed to protect the reasonable expectations of someone who acts on the belief that they are married, and generally entitles a putative spouse to the rights a legal spouse would have for the period from the putative marriage until discovery that the marriage was not legal. It is possible that a person could have both a legal spouse and someone is a putative spouse, in which case, courts are directed to do what seems appropriate in the circumstances.

History

Most marriages in Europe were common-law marriages until the Council of Trent convened 1545–1563. Thereafter, a marriage was only legal in Roman Catholic countries if it were witnessed by a priest of the Roman Catholic Church. This was not accepted in the newly Protestant nations of Europe, of course; nor by Protestants who lived in Roman Catholic countries or their colonies in the Americas or elsewhere; nor by Eastern Orthodox Christians.

Nevertheless, all Protestant and Eastern Orthodox countries in Europe eventually abolished "marriage by habit and repute," with Scotland being the last to do so, in 2006. Scotland had long been the sole exception in Europe.

The practice persevered in Scotland because the Acts of Union 1707 provided it retained its own legal system separately from the rest of the United Kingdom. Thus, Lord Hardwicke's Act, passed by the British Parliament in 1753, did not apply to Scotland. It did apply to England and Wales, however (and to Ireland, after the Act of Union 1800), where marriages were only valid in law if they were performed by a priest of the Church of England, unless the participants in the marriage were Jews or Quakers, both of whom were exempt from that provision.

Lord Hardwicke's Act did not apply to British overseas colonies at that time, so the practice of common-law marriage continued in the United States and Canada.

Practice

Australia

In Australia the term de facto marriage is often used to refer to relationships between men and women who are not married but are effectively living as husband and wife for a period of time, however "common-law marriage" is sometimes heard. The Federal parliament has power to legislate for marriages, which it first did in 1959 with the Matrimonial Causes Act (which covered divorces) and in 1961 with the Marriage Act, both of which were replaced by the 1975 Family Law Act. The Federal parliament has no power over de-facto marriages, and thus all Australian states and territories have legislation covering aspects of de-facto marriages, such as property distribution, custody of children, and so forth if a relationship ends. Most laws dealing with taxation, social welfare, pensions, and so forth, treat de-facto marriages in the same manner as solemnized marriages.

Canada

Under Canadian law, 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.

However, 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 one full year. 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 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 three years or having a child in common and having "cohabitated in a relationship of some permanence." The three-years must be continuous; however a breakup of a few days during the one-year period will not affect a person's status. 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.

The requirements in some other provinces are as follows: In British Columbia and Nova Scotia you must cohabit for two years in a marriage-like relationship. In New Brunswick, you must live together continuously in a family relationship for three years.

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.

Québec

Québec, which unlike the other provinces has a Civil Code, has never recognized common-law partnership as a kind of marriage. However, many laws in Québec explicitly apply to common-law partners (called "de facto unions" or conjoints de fait) as they do to spouses.

Same-sex partners can also have recognized "de facto unions" in Québec. A recent amendment to the Civil Code of Québec recognizes a type of domestic partnership called "civil union" that is similar to common-law marriage and is likewise available to same-sex partners.

Israel

Israeli law recognizes common-law marriage (:he:ידוע בציבור|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 unclear 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

The term "common-law marriage" is frequently used in England and Wales, however such a "marriage" is not recognized in law and it does not confer any rights or obligations on the parties. Genuine (that is, legal) common-law marriage was for practical purposes abolished under the Marriage Act, 1753. Prior to that point, marriage was by consent under Roman Law, and by consummation under canon law. "Common-law marriage" survives in England and Wales only in a few highly exceptional circumstances, where people who want to marry but are unable to do so any other way can simply declare that they are taking each other as husband and wife in front of witnesses. British civilians interned by the Japanese during World War II who did so were held to be legally married.

Unmarried partners are recognized for certain purposes in legislation, for example for means-tested benefits. For example, in the Jobseekers Act 1995, '"unmarried couple" means a man and woman who are not married to each other but are living together as husband and wife otherwise than in prescribed circumstances.

Scotland

Under Scots law, there were several forms of "irregular marriage" (including marriage by correspondence), but all but one of them was abolished by 1947. 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 abolished the old style common-law marriage. For this law to apply the minimum time the couple has lived together continuously had to have exceeded 20 days.

As in the American jurisdictions that have preserved it, this type of marriage was difficult to prove while they were still recognized. 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. And, as with American common-law marriages, it was a form of lawful marriage, so that nobody could say they are 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.

United States

Generally, common-law marriage was recognized in the United States, due to the connection with the United Kingdom. However, the following states never permitted common-law marriage: Arkansas, Connecticut, Delaware, Louisiana, Maryland, North Carolina, Oregon, Tennessee, Vermont, Virginia, Washington, West Virginia, and Wyoming. Note that Louisiana is a French civil or code law jurisdiction, not an English common law jurisdiction. As such, it is a former Council of Trent jurisdiction and common-law marriage was never known there.

Subsequently, common-law marriage was abolished in the majority of states. It is no longer recognized in the following states, as of the dates given: Alaska (1917), Arizona (1913), California (1895), Florida (1968), Georgia (1997), Hawaii (1920), Idaho (1996), Illinois (1905), Indiana (1958), Kentucky (1852), Maine (1652, when it became part of Massachusetts; then a state, 1820), Massachusetts (1646), Michigan (1957), Minnesota (1941), Mississippi (1956), Missouri (1921), Nebraska (1923), Nevada (1943), New Mexico (1860), New York (1933, also 1902-1908), New Jersey (1939), North Dakota (1890), Ohio (1991), Pennsylvania (2005), South Dakota (1959), and Wisconsin (1917).

Nevertheless, all states, including those that have abolished common-law marriage, continue to recognize common-law marriages lawfully contracted in those U.S. jurisdictions that still permit this irregular contract of a marriage. States recognize each other's marriages, and those from foreign countries, under their own conflict and choice-of-law rules. In general, a marriage that is validly contracted in the foreign state will be recognized as valid in the forum state, unless the marriage is odious to the public policy of the forum state.

The requirements for a common-law marriage to be valid differ from state to state. There are many common stipulations among the states which include:

• Legal age and capable of giving consent
• Mutual consent into a marriage like relationship.
• Public recognition of the existence of the marriage
• Cohabitation for a period of time (usually a number of years)

Conclusion

Common-law marriage is an alternative form of marital union which does not involve a marriage license nor any sort of officiator. While this form of marriage is not accepted everywhere there are many areas that do recognize common-law marriage, each with its own rules and regulations. Most of these regulations include an amount of required time living together as a married couple, two mutually consenting adults, and other stipulations. If all of the criteria are met the couple would have all of the rights and responsibilities of a married couple.

Common-law marriage recognizes that marriage is not solely a legal union of two individuals, and is instead a coming together of loving partners, and allows a government to recognize that union as such. However, in many cases it has proved difficult for couples to qualify for a common-law marriage due to the nature of these stipulations.

Thus, while certain requirements may not be necessary for the legal recognition of marriage, such as officiators of a particular religion, it is clear that simply agreeing to be married is not sufficient to enter into the significant relationship of husband and wife, with its many attendant responsibilities. To clarify that a relationship is not merely one of cohabitation, but a union of two people entered into with full preparedness to take responsibility for each other's well-being and that of ensuing children, the ceremony and certification (regardless of whether civil or religious) has many advantages.

External links

All links retrieved January 7, 2024.

• Treatise on Common Law Marriage

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