Attorneys at Law

Disclaimer: The information contained in this FAQ is provided for general information purposes only and is not intended to be a legal opinion, legal advice or a complete discussion of the issues related to the area of common-law marriage. Every individual's factual situation is different and you should seek independent legal advice from an attorney familiar with the laws of your state or locality regarding specific information.

Before the advent of modern domestic relations statutes, parties became married by a variety of means that developed from ancient custom. These became the elements of a "common-law marriage," or one that arose by operation of law through the parties' conduct, rather than pursuant to a formal ceremony. In many ways, the theory of common-law marriage is one of estoppel--that parties who have themselves told the world they are married should not be heard to claim that they are not married in a dispute between the parties themselves.

Common-law marriage is generally a nonceremonial relationship that requires "a positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, cohabitation sufficient to warrant a fulfillment of necessary relationship of man and wife, and an assumption of marital duties and obligations." Black's Law Dictionary 277 (6th ed. 1990). Common-law marriages were recognized in some of the colonies prior to independence, and in many states after independence.

Currently, only 13 states (Alabama, Colorado, Kansas, Ohio, Rhode Island, South Carolina, Georgia, Idaho, Iowa, Montana, Oklahoma, Pennsylvania and Texas and the District of Columbia) recognize common-law marriages contracted within their borders. (See, Piel v. Brown, 361 So. 2d 90, 93 (Ala. 1978); Deter v. Deter, 484 P.2d 805, 806 (Colo. Ct. App. 1971); Johnson v. Young, 372 A.2d 992, 994 (D.C. 1977); Smith v. Smith, 161 Kan. 1, 3, 165 P.2d 593, 594 (1946); In re Estate of Zurbrugg, 34 Ohio Misc. 84, 86, 296 N.E.2d 847, 848 (C.P. 1972); Sardonis v. Sardonis, 106 R.I. 469, 472, 261 A.2d 22, 23 (1970); Johnson v. Johnson, 235 S.C. 542, 550, 112 S.E.2d 647, 651 (1960); GA. CODE ANN. Sec. 19-3-1 (1982); IDAHO CODE Sec. 32-301 (1963); IOWA CODE ANN. Sec. 595.11 (West 1981); MONT. CODE ANN. Sec. 26-1- 602, 40-1-403 (1985); OKLA.STAT. ANN. tit. 43, @ 1 (West 1979); PA. STAT. ANN. tit. 48, Sec. 1-23, (Purdon 1953); TEX. FAM. CODE ANN. @ 191 (Vernon 1975).

New Hampshire has a limited form of common law marriage effective only at death. See N.H. REV. STAT. ANN. Sec. 457:39 (1983).

Tennessee has employed a doctrine of "estoppel to deny marriage." See Note, Informal Marriages in Tennessee--Marriage by Estoppel, by Prescription and by Ratification, 3 VAND. L. REV. 610, 614-15 (1950).

Most states have abolished common-law marriage by statute. Common-law marriage was seen as encouraging fraud and condoning vice, debasing conventional marriage, and as no longer necessary with increased access to clergy and justices of the peace. See, e.g., Cal. Civ. Code Sec. 4100 (West 1983); N.Y. Dom. Rel. Law Sec. 11 (McKinney 1988 & Supp. 1992); Furth v. Furth, 133 S.W. 1037, 1038-39 (Ark. 1911); Owens v. Bentley, 14 A.2d 391, 393 (Del. Super. Ct. 1940); Milford v. Worcester, 7 Mass. 48 (1910); Ira M. Ellman et al., Family Law: Cases, Text, and Problems 21 (1986).

Among those states that permit a common-law marriage to be contracted, the elements of a common-law marriage vary slightly from state to state. The indispensable elements are (1) cohabitation and (2) "holding out." "Holding out" means that the parties tell the world that they are husband and wife through their conduct, such as the woman's assumption of the man's surname, filing a joint federal income tax return, etc.

Texas calls it an "informal marriage," rather than a common-law marriage. Under section 1.91 of the Texas Family Code, an informal marriage can be established either by declaration (registering at the county courthouse without having a ceremony), or by meeting a 3-prong test showing evidence of (1) an agreement to be married; (2) cohabitation in Texas; and (3) representation to others that the parties are married. The 1995 update adds an evidentiary presumption that there was no marriage if no suit for proof of marriage is filed within two years of the date the parties separated and ceased living together.

While it is presently only possible to conclude a common-law marriage in a limited number of jurisdictions, it was formerly much more widely possible. Many valuable estate rights today continue to depend the right to inherit through a common-law marriage concluded in the past in a state which subsequently abolished common-law marriage.

And every other state is Constitutionally required to recognize as valid a common-law marriage concluded in a state where such marriages are legal.

Copyright (c) 1996 Hilary B. Miller