Fiction – “If I live together with my boyfriend for over seven years then we automatically have a common law marriage.”

This is a popular urban myth that is completely false. In fact, a couple could live together for 35 years in Rhode Island and still not be married under the common law. However, another couple could live together for 7 days and be married!

How can this be true?

In order to establish a common law marriage in Rhode Island, a couple must have “seriously intended to enter into the husband-wife relationship.” Demelo v. Zompa, 844 A.2d 174. “The parties conduct also must be of such a character as to lead to a belief in the community that they were married.” Id. “The prerequisite serious intent and belief is demonstrable by inference from cohabitation, declarations, reputation among kindred and friends, and other circumstantial evidence.” Id.

A crucial element to common law marriage is whether a couple holds themselves out to the community as husband and wife.

I believe that courts look to several factors in determining if there is a common law marriage. The court looks at the totality of the circumstances rather than focusing exclusively on any one particular factor. In other words, if one of the following factors doesn’t apply, there could still be a common law marriage.

Establishing a common law marriage in Rhode Island is analogous to building a brick wall. A single brick alone will not build the wall. Pulling out any particular brick will not cause the wall to fall. Similarly, no one factor usually creates a common law marriage (perhaps, and I emphasize perhaps, the only exception to this is filing as married on federal income tax returns). The absence of a single factor usually does not defeat a common law marriage. The exception to this may be lack of cohabitation, depending on the facts, but that is not set in stone.

The court may look at whether the alleged wife took the husband’s last name. The woman’s use of a man’s last name indicates that the parties were holding themselves out to the community as married and exhibiting a serious intent to enter into a marriage. If a woman takes a man’s last name and uses the name in public, then that will go a long way in establishing a common law marriage. Conversely, a woman not taking her significant other’s last name will not be fatal to establishing the marriage. Judges are keenly aware that in this day and age, it is common for a woman to use her maiden name after a valid marriage.

The court will look to see if the parties introduce each other as “my husband” or “my wife” in social settings or when appropriate. Courts are well aware that married couples usually do not introduce each other by first names.

Medical treatment forms, financing applications, and other forms may be important to see whether the parties listed the other person as their spouse or even admitted that there was a marriage.

The length of time that the parties have lived together may be very relevant. An economic partnership between the parties is also very significant. Joint bank accounts, joint ownership of property, other joint accounts, beneficiary designations on retirement plans, and insurance applications could all be bricks in a wall of establishing a common law marriage. Note that these factors alone (such as having a joint bank account) will NOT establish a common law marriage, as today it is not unusual for boyfriends and girlfriends to live together with joint bank accounts or even to own property together without intending to enter into marriage. However, the above-mentioned factors take on importance in conjunction with other significant factors set forth in this article.

There are a myriad of other factors that could be very important in determining whether there is a common law marriage. This includes whether a diamond ring or other ring was given and what hand the ring was worn on.

This article in no way establishes all the factors that could be important.

If the parties cannot agree that there was a marriage, then witnesses will need to testify in court to establish a belief and reputation in the community that the parties were married. In other words, does your social circle (friends, family, acquaintances, etc.) believe that you and your significant other are married?

One of the most crucial elements of common law marriage is the tax status that the parties claim on their federal and state income tax forms. If the parties filed “married filing jointly” or “married filing separately” then some judges would say that the common law marriage is established. A federal tax document is a very significant document and most people know the importance of being truthful when filling it out. I would tend to agree that if the parties filed their taxes as married, then they are probably, in fact, married! If the parties filed as “married filing jointly” and then one of them denies the common law marriage, there is a perjury problem. The individual either lied to the IRS or to the court. Filing single will not be helpful in establishing a common law marriage; however, it is not fatal.

How could a party be married under the common law after only 7 days? Hypothetically, a boyfriend and girlfriend could invite all their friends to a party which is not officially a wedding. No marriage certificate is sought or obtained by the couple. However, at the party, the couple announces to all friends and family in attendance that they are married. They move in together the next day. The girlfriend puts him on her health insurance. They are probably married by common law after just a week!

If you believe that you are in a common law marriage and want to terminate the relationship, then you need to file for divorce in Rhode Island Family Court and establish the appropriate elements.