Is Common Law Marriage Valid?

Most states have done away with common law marriage. Today, only a handful of states still say a common law marriage is valid. In general terms, common law marriage requires that the couple assume that they are married and hold themselves out as man and wife publicly and professedly.

Additional Common Law Marriage Requirements

This definition protects, to a certain degree, fraudulent claims of common law marriage. Often, there is even a requirement of marital cohabitation which provides additional objective evidence of a marriage under common law. Many jurisdictions will contain a statute that prevents a “wife” from purporting such a marriage after her “husband” has already died, in order to claim a share of the deceased husband’s estate.

Evidence Common Law Marriage is Valid

In addition, the evidence of a valid marriage by common law often has to be “clear and convincing.” Elements involved in determining common law marriage include that there is no agreement to be husband and wife in writing but that there is a marriage based on the evidence that the couple lived as husband and wife for many years. Evidence can include testimony from family members, friends, acquaintances and others that they were reputed to be married. Habit and repute often will be enough to support a finding of common law marriage.

Impediment to Marriage Test

One common law test of marriage will be the impediment test. Under these cases, if there is an impediment to a couple getting married, like if one spouse is still married to someone else, and decides to live with another as husband and wife for many years. If, subsequently, the spouse does get divorced and the couple living together remains living as though they were husband and wife after the impediment has been removed, they couple may have a valid common law marriage.

Common Law Variations from State-to-State

The law can get rather complex from state to state, so if you need more information regarding common law marriage, check with an attorney licensed in your state with knowledge of matrimonial law so he or she can inform you specifically regarding your issue or question. For example, if a couple begins to reside together in a state where common law marriage is not recognized and then they subsequently move to a state that does, what effect does that have on their marital status? The same issues arise if they couple resided in a common law state for years and then moves to a state that does not recognize common law marriage. These are important issues through which an attorney will be able to help guide you.

By Christopher Yannon