Marriage vs. Common-Law Marriage: An Overview
There are many things you and your partner have to think about when you're making a life together from where you're going to live, who will take charge of the cooking, and whether or not you're going to have kids. But that's not all.
Couples also have to decide what they'll do with their finances, including how to split the bills, joint debt, and how to plan for the future. But there is another major decision couples have to make: whether to get married officially or remain in a common-law marriage.
An official marriage is a legal union between two people that requires a license and ceremony in most states. Legally married couples are able to take advantage of a number of financial benefits, including being able to file joint tax returns, splitting income and pensions, and being entitled to certain government benefits.
But you and your partner may choose not to get married and enter instead into what is known as a "common-law marriage". This type of relationship can give you many of the same benefits as married couples, but only in certain states - and it's not always automatic. There are rules you may have to follow.
Although they may seem quite the same, there are distinct differences between them. A legal marriage guarantees many benefits even after the relationship is over. Although common-law marriages do qualify for many of the same rights as a legal marriage with a state license, there are others that may not apply—especially after a common-law couple separates.
- Marriage is a legal union between two individuals while a common-law marriage involves two people who live together and present themselves as a couple without getting married.
- Fewer than a dozen states and the District of Columbia recognize common-law marriages.
- Common-law spouses who meet their states' requirements are eligible for most of the financial benefits of a married couple, including Social Security.
- Those who move outside a state in which they established a common-law marriage should check with an attorney regarding their status after the move.
- Divorce is a possibility for married couples but isn't for common-law marriages.
What is Common Law?
Getting legally married requires being wed by an officiant in many jurisdictions. This is a person who has the authority to carry out a legal marriage, such as a religious leader, judge, clerk, judicial officer, or justice of the peace. This can be done either in a religious setting or in a non-denominational or secular setting such as a city hall or courthouse.
A marriage license is issued and officially recorded once the ceremony is complete. In the U.S., most states require a legal marriage in order for a couple to exercise spousal benefits such as filing a joint tax return, sharing financial accounts, and so on.
Legal marriage has many benefits. And it doesn't necessarily just mean having a joint bank account. In fact, many of the rules are favorable for married couples. For instance, you can choose to file your taxes jointly as a couple. Filing as a couple not only allows you to earn more income and end up in a higher tax threshold, but you can also take advantage of many tax deductions, including:
- American Opportunity Tax Credit (AOTC)
- Child and Dependent Care Tax Credit
- Earned Income Tax Credit (EITC)
- Lifetime Learning Credit (LLC)
Married couples are also entitled to each others' Social Security benefits. One partner can collect as much as 50% of the other's benefits. And if your spouse dies, you are eligible to receive their benefits, provided they were older than 60 before their death.
Estate planning, retirement, and insurance become easier and, often, cheaper. For example, combining health insurance policies may reduce the amount you have to pay in monthly premiums compared to those you would pay individually.
These benefits do not necessarily end if the marriage does. Divorce often means you are entitled to a settlement. It may require a lot of work, but there is the possibility of a division of property.
Some people may choose to forgo the legalities of marriage for a variety of reasons. They may opt instead for a common-law relationship. This type of union recognizes a couple as somewhat equivalent to legally married even if the pair never said their vows in a civil or religious ceremony and lack a marriage license. But this definition doesn't necessarily apply in all states. A full list of states that recognize common-law marriages is listed below.
Those states that do allow it may not have official rules about common law marriage, but there are certain conditions that still have to be met for a couple to be considered married by common law. For instance, individuals must:
- Be a couple living together in a state that recognizes common-law marriages.
- Live together for a significant period of time. Although many people believe seven or 10 years is the requisite time span, no state provides a specific time frame for cohabitation.
- Introduce themselves to friends, neighbors, and coworkers as a married couple, calling each other “my husband” or “my wife” and even using the same last name.
- Maintain joint finances such as leases/mortgages, bank accounts, and credit cards.
- Be of sound mind.
- Not be married to someone else.
Common-law couples may enjoy some of the same benefits as married couples. But there are certain downsides. For example, if one spouse buys property on their own and doesn't put the other one on the deed, it can be sold without the other's consent. Couples should consider purchasing major assets using co-ownership agreements to avoid this. And it's also a good idea to review rights and obligations with an attorney who understands common law marriage.
But what happens if the relationship is over? Not much. That's because there is no such thing as a common-law divorce. Anything you bring into the relationship is generally yours to keep. But you may have a claim to any assets and responsibility for any debts held in both of your names. But that may not work if your spouse contests the relationship as a common-law marriage, in which case you may need to settle things in court.
Note, however, that common law couples cannot file joint tax returns with the IRS. Instead, they must either file separately or as head of household.
Although you can't divorce your common-law spouse, you should consider legally dissolving the relationship to resolve any liability for the support of an ex-spouse.
States That Recognize Common-Law Marriages
Fewer than a dozen states and the District of Columbia recognize common-law relationships, and each of those states has specific requirements that must be met:
- Colorado: If contracted on or after Sept 1, 2006. Common-law spouses must be 18 or older and not prohibited by other laws.
- Iowa: Intended for the purposes of support for dependents, but otherwise not prohibited.
- Kansas: Couples must be mentally capable of making a commitment, must be 18 or older to marry, and must represent themselves as married in the community.
- Montana: Not prohibited and not invalidated by the state’s marriage chapter.
- New Hampshire: The statute uses the phrase “cohabitation” not “common-law marriage," saying such unions can be recognized solely for inheritance purposes. For instance, this may occur when an estate is being settled after one of the partners dies if the couple lived together for three years prior to the death.
- Oklahoma: Aside from unions formed prior to Nov. 1, 1998, common-law marriage has been the subject of conflict between state law and the courts. Overall, though, there is some validity to this kind of relationship. To be recognized as a qualified common-law marriage, the individuals must attest to the fact that they are living together, financially interdependent, not related by blood to a degree that would prohibit marriage, and are age 18 or older.
- Rhode Island: Both man and woman must intend to be married and act as if they are married. This means they must live together and present themselves as married to friends and family.
- South Carolina: The state allows for marriage without a valid license. There are no specific laws on common law marriage.
- Texas: Both parties in an informal marriage must consent to be married, live together, and tell others they are married.
- Utah: For a "marriage not solemnized," both partners must be able to agree to the marriage, and others must know them as a married couple.
Some states have ruled that only those unions that met the state requirements for a common-law marriage by a specified date will be recognized—not those that happened later. Those states and dates are:
- Alabama: Jan. 1, 2017
- Georgia: Jan. 1, 1997
- Idaho: Jan. 1, 1996
- Ohio: Oct. 10, 1991
- Pennsylvania: Jan. 1, 2005. Partners must also exchange vows to be married uttering "words in the present tense, uttered with the view and for the purpose of establishing the relation of husband and wife."
If a state recognizes common law marriage, and a couple does not want to be seen as married, they need to sign a living together contract—especially if they own property together or use the same last name.
History of Common-Law Marriage
Up until Lord Hardwicke's Act of 1753, common-law unions were recognized as legal in England. However, because Scotland was exempt from the law, couples continued to cross the border north of the border for many years to avoid the prohibition. Common-law unions were prevalent on the European continent in the Middle Ages, but the Council of Trent, which mandated that weddings be performed in front of a priest and two witnesses, outlawed them in the Roman Catholic nations.
In October 1855, the concept of a common law marriage was defended at the New York Surrogate's Court. The case involved the passing of John Tummalty who, though unmarried, had a long-standing relationship with someone in which he did not have a formal ceremonial marriage with. The court ruled that society would not benefit if such relationships (in which children could be born) was no longer considered valid in the eyes of the law.
The U.S. Supreme Court ruled in Meister v. Moore in 1877 that unless a state's law specifically prohibited it, a non-ceremonial marriage was lawful and enforceable. Because it was challenging to find someone who could officiate a marriage ceremony and because traditionally it was stigmatizing to be unmarried and have children, common law weddings in the United States were actually only a convenience.
Pros and Cons of Common-Law Marriage
Cons of Common-Law Marriage
As noted above, couples recognized as married by common law enjoy many of the same benefits as legally married couples, provided they have lived in a state that recognizes common law for most of their marriage. These benefits include:
- Eligibility to receive Social Security benefits as long as they can prove the number of years they lived together in a common-law state
- Qualifying for employer benefits through their spouse, such as health insurance
- Exemption from the gift tax for gifts to each other
- Unlimited marital exemptions for their estate up to the federal estate tax limit
- Claiming deductions for mortgage interest (if they co-own a house) and children (if applicable)
- Inheritance of their spouse’s property as long as there is a valid will (but if a spouse dies without a will, their children and other family members assume the inheritance rights, leaving the surviving common-law spouse with none)
- Use of a medical power of attorney (POA) designating their common-law spouse as the person (rather than another family member) to make medical decisions when they are incapable.
Cons of Common-Law Marriage
There are unfortunately some downsides to common-law marriage as well. These downsides include:
- Not being fully, universal recognition, as you might not enjoy the same legal rights and protections as someone who is legally married if you live in a state or country that does not recognize common law marriage.
- Being complicated by the law, as it can be difficult to judge if a common law marriage exists.
- May offer less legal protections than legally recognized marriages. For instance, accessing benefits like health insurance, Social Security benefits, and some tax benefits that are normally connected to legal marriage may be more difficult in the absence of a formal marriage certificate.
- The necessary to acquire proof and possibly go through legal procedures, which can be expensive, emotionally taxing, and time-consuming.
May receive favorable tax treatments for certain circumstances such as gift taxes
Ease of inheritance of their spouses' goods under certain circumstances
Potential qualification of health care benefits through a spouse's workplan
Receives many other standard tax and financial benefits received by legal marriage couples
Is not legally recognized in all locations
May pose uncertainty in whether a common law situation is present
May result in more limited legal protections
May result in a burden of proof and the necessity to validate a common law marriage which may be difficult to substantiate
The question of common-law marriages applying to same-sex couples is a little murky. Some legal authorities feel that the same factors that apply to opposite-sex couples in common-law marriages apply to LGBTQ+ couples as well. As of 2021, only Iowa, Rhode Island, and the District of Columbia specifically allow for same-sex common-law marriages. In 2021, Colorado joined their ranks.
Don't confuse a common-law marriage with a civil union. The latter is a legal relationship between two people that confers rights only on the state level. Civil unions were primarily a way for same-sex couples to have a legally recognized relationship before same-sex marriage became legal in all 50 states after the Supreme Court made its ruling in the 2015 case of Obergefell v. Hodges.
Not all states recognize civil unions. This means yours may not be valid if you move to another state. And whether a couple is same- or opposite-sex, a civil union provides no right to federal protections or benefits. It may be a good idea to check with an attorney if you're unsure about the status of your relationship if and when you move.
What Is a Common-Law Marriage?
The term common-law marriage refers to a relationship between two people who decide to cohabitate and present themselves as a married couple without the benefit of a legal ceremony and marriage certificate.
Does Common-Law Marriage Still Exist?
Common-law marriage still exists in many jurisdictions. Fewer than a dozen states and the District of Columbia recognize common-law marriages in the United States.
Is There Common-Law Marriage in the U.K.?
Many people choose to live with their partners in the United Kingdom just as spouses do after they get married. But there is no definitive law surrounding common-law marriages in England and Wales. Couples in Scotland are able to make limited claims in the event of a separation or death while those in Northern Ireland only have access to legal protection in certain cases.
The Bottom Line
Couples who move out of the state in which they established a common-law marriage need to be aware that all states recognize a common-law marriage that a couple legally entered into in another state.
Still, they may want to sit down with an attorney in their new state after they move to be sure they meet the legal obligations required to maintain their rights as a married couple. Keeping good records can help when it comes to claiming federal benefits—especially if they move around a lot.
And if a common-law couple decides to part ways, even though there is no common-law divorce, they still need to have their relationship legally dissolved. This relates to the fact that a person in a common-law marriage could be liable for providing the same type of support for their ex-spouse as someone in a legally binding marriage might be required to do after divorce.
Correction—Sept. 19, 2022: A previous version of this article incorrectly stated that common law couples must file joint federal tax returns. The IRS only allows legally-married couples to do so.