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Common Law Marriage Information
What Is Common Law Marriage?
Common law marriage is a type of domestic partnership or
civil union, created or recognized by statute in many European countries,
Canada, and a few other nations around the world apparently starting with a
decision of the Hungarian Constitutional Court in 1996.
All U.S. jurisdictions recognize common-law marriages where they have been
validly contracted in another jurisdiction that still permits the common law
contract of a marriage. Only a dozen jurisdictions, however, still permit
marriages to be contracted in this way. They are: Alabama, Colorado, the
District of Columbia, Iowa, Kansas, Montana, Oklahoma, Rhode Island and
Providence Plantations, South Carolina, Texas, and Utah. Additionally, New
Hampshire recognizes common-law marriage solely for probate purposes.
That is, when a party to a common-law marriage dies, the state of New Hampshire
will posthumously recognize the marriage to ensure the surviving spouse inherits
without any difficulty; but the marriage will not be recognized by the state
while the parties are both still living.
In Utah, in the event of common-law marital breakup, the law requires the
parties get a declaration of marriage from a court of competent jurisdiction not
later than one year after the breakup of the common-law marriage, or the state
will not recognize the marriage, e.g., for purposes of hearing disputes over
division of marital property in the family court as a divorce question, instead
of the civil court as a contract question.
U.S. States that recently abolished the contract of a common-law marriage
include: Pennsylvania, September 2003; Georgia, January 1997; Idaho, January
1996; and Ohio, October 1991.
In general, any couple who present themselves as husband and wife will be
presumed to be husband and wife until proven otherwise - it's just how people
behave. For a couple who contracted their marriage as a common-law marriage,
since they can pull out no marriage certificate, there are a number of ways they
might be required to prove they have a valid contracted marriage. These vary
from jurisdiction to jurisdiction but generally include one or more of the
following:
1. The parties hold themselves out to society as husband and wife.
2. This cannot be unintentional or play-acting, but they must
also behave as husband and wife when society is not around to see them.
3. Change of name of one spouse to that of the other (or
amalgamation of names, with Mr. Smith and Ms. Jones becoming Mr. and Ms.
Smith-Jones), filing of tax returns under "married" status, consistent address
of each other as spouses, and so on. The action cannot be inadvertent or caused
by others.
4. The parties must mutually consent and have agreed to be
presently married.
5. An agreement to be married in the future, i.e., an
engagement or a hand-fasting, is generally proof that the parties are NOT
married yet.
6. As in statutory marriage, if either party does not consent
to the marriage but is, or feels, coerced into it in some way, then the marriage
is not valid.
7. The parties often must cohabit for a specified minimum
period of time.
8. Some states require a declaration be made before a judge
or filed with the county clerk for the marriage to be recognized.
As noted above, a jurisdiction may permit common-law marriage, but no place
allows "common-law divorce." Because an old style common-law marriage is a
legally binding marriage, the only way to get out of it is to go to court and
file a petition for dissolution of marriage (sometimes called, if archaically
so, a bill of divorcement).
In Texas, for example, if a couple do not commence a proceeding to prove their
relationship was in fact a real common-law marriage within two years of the end
of the relationship, the law decrees and acknowledges the marriage never existed
in the first place, and no agreement to be married was ever present. (viz., by
virtue of finding the parties never agreed to be married). See Sec. 2.401 of the
Texas Family code at Texas Family Code Sec. 2.401.
More on Marriage:
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