What is a Common Law Marriage?

A common-law marriage refers to an informal marriage by agreement. There has been no formal ceremony. A man and a woman have entered into an agreement without compliance of statutory guidelines governing marriage licenses.  A common-law marriage agreement can legally contract a marriage. The difference between a common-law marriage and a ceremonial marriage is there are no witnesses and it has not been pronounced by an individual who has legal authority to conduct marital ceremonies. Traditionally, it has been presumed that two people are married when they cohabit together and are generally believed to be husband and wife.

A common-law marriage can only become valid if there is a contract or mutual agreement between the man and woman to become husband and wife. The persons entering into the contract or agreement have to be legally able to enter into such contract or agreement. In light of cohabitation and reputation, both of these have to be shown to raise a presumption of marriage. In most situations, these requirements have to be constant and continuous. There can be inferences made from the character and duration of cohabitation to show existence of a mutual agreement for common-law marriage.

The courts have held that a common-law marriage can be established by showing that the following elements existed: (1) capacity, (2) present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships; and (3) public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation. In circumstances where a party is asserting the existence of a marriage, the party must prove that “(1) the parties were competent to enter into a marriage; (2) the parties assumed a marital relationship by mutual assent and agreement; and (3) the parties confirmed their marriage by cohabitation and public repute.”

A common-law marriage is to be determined by looking at the marriage as the formation of an ordinary contract. First, was there mutual assent between the parties to be married to one another and did both parties understand the others intent. Second, there has to be consideration which would be a willingness to participate in the marriage.

A common-law marriage is not recognized in every state. A marriage between a husband and wife without obtaining a marriage license as required by statutes is not valid. Within states that do recognize common-law marriage, the courts disfavor it. The idea of common-law marriage is not encourage, but they are upheld.

A common-law marriage is disfavored by the courts; therefore, it has been described as a source of perjury and fraud. Any claim of common-law marriage will be closely reviewed in every aspect by the courts. This is strongly held in cases were one party to the allege marriage is deceased and the living party would look to gain financially if a marriage existed. However, public policy tends to favor the finding of common-law marriage between persons who were married, divorced, and later began to live with each other. If children were born of the relationship, the finding has an even stronger favor.

A common-law marriage issue should be considered based on the laws of individual states.


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