Common Law Marriage in D.C.

Continue reading to learn more about this alternative path to marriage.

By , J.D. · University of Minnesota School of Law
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When people imagine what it will be like to marry, they usually think of a proper wedding, with blushing brides adorned in beautiful gowns and anxious grooms decked out in tuxedos. This kind of traditional service results in a typical, legally binding "ceremonial" marriage.

But if you live in D.C., it's possible to marry without shelling out a lot of money and hosting an elaborate service. That's because D.C. is one of a handful of American jurisdictions that recognize non-traditional or "common law" marriages. If you and your partner believe you're married and you conduct yourselves accordingly, you can be married without getting a marriage license or having a wedding.

How do I establish a common law marriage in D.C.?

D.C. allows common law marriages in two distinct ways.

First, if you entered into a common law marriage while you were living somewhere else, you can later live in D.C. and have your marriage recognized in the courts. The full faith and credit clause of the United States Constitution requires all American states and the District of Columbia to recognize each other's marriages and give them full legal force and effect. So if you lived in a state that allows common law marriage—Kansas, for example—and you entered into a legally binding common law marriage while you were there, you can later move to D.C. and avail yourself of the marriage laws by, say, getting divorced and asking for alimony.

Second, you can create a brand-new common law marriage while you live in D.C. D.C. has authorized common law marriage for many decades. To form a new common law marriage:

  • You and your spouse must share a "mutual and express agreement" to be married to each other. You have to explicitly intend to be married and promise to be spouses. Your intent to marry also has to be "present," or current. You can sometimes satisfy this element by expressing your intentions to each other. For example, you might refer to each other as "husband," "wife," or "spouse" in your conversations together. You can also satisfy this requirement by showing your "habit or repute" to be married, meaning that you behave in such a way that other people would reasonably conclude that you're a married couple. For instance, you might file your taxes jointly or name each other as survivors or beneficiaries in legal papers.
  • You and your spouse also have to cohabit, or live together. However, the mere fact that you live together doesn't mean that you have a common law marriage; you still have to intend to be married to each other and act accordingly.
  • You and your spouse must have the capacity, or ability, to be married to each other. This simply means that you're both old enough to marry, you aren't closely related, you're physically and mentally able to commit to marriage, and you aren't still married to someone else.

Sometimes people think they have to live together for a certain number of years before they're common law married. But there's no minimum requirement for how long you have to live together before common law marriage kicks in.

The D.C. court system looks at common law marriages with healthy skepticism, to prevent any "accidental" marriages. In one case decided in D.C.'s federal court, a deceased woman's (Hawker's) estate claimed that while she was alive, she was common law married to a man (Marcus). Marcus disputed that claim and argued he was never more than Hawker's romantic partner. The evidence consisted of:

  • a "congratulations" card that Hawker and Marcus signed together, using their first names only
  • unsolicited mail that Hawker received which identified her by the last name "Marcus"
  • testimony that Hawker always referred to Marcus as her boyfriend, not as her husband
  • testimony that Hawker never acknowledged that she was married to Marcus when she was with her relatives or employers
  • testimony that Hawker dated other men while she was with Marcus, and even considered marrying someone else, and
  • the fact that Hawker's INS card, death certificate, and burial expense invoice referred to Hawker by her maiden name.

Under these facts, the court concluded that Hawker and Marcus didn't have a valid common law marriage because the evidence didn't show they ever intended to be spouses.

What is not a common law marriage?

Sometimes people think they signed up for an automatic common law marriage because they live together, have children together, or share a surname. But none of these facts, taken either in isolation or aggregation, is enough to establish a common law marriage if intent to marry is missing.

Platonic relationships that are based on friendship aren't suitable for common law marriage. Real marriage is founded on romantic love, not merely a sense of amity. Similarly, if you or your partner aspire to marry "someday," or if one of you just isn't sure whether you're married, then you aren't. You can't be common law married unless you share a current, mutual intent to be spouses and your behavior is consistent with that intent.

Even if your relationship doesn't rise to the level of a common law marriage, you still have recourse to important legal protections outside of D.C.'s marriage laws. If you have children together, you can go to court and ask a judge to make decisions about paternity, custody, visitation, financial support, and health insurance. If you have other disputes, D.C.'s contract and tort laws might afford you relief. If you're a victim of domestic violence, you're entitled to protection.

What is the legal effect of common law marriage?

In the eyes of the law, there's no difference between a common law marriage and a ceremonial marriage. Both are perfectly valid forms of marriage, and both end only upon divorce or death. If you want to end your common law marriage, you have to go through a divorce—just like the folks who had a big, fancy ceremony. While this may impose a burden on you, on the flip side, you will also receive protections under D.C.'s divorce laws. For instance, the courts have to make a fair and equitable division of your property and will only award alimony if it's warranted under your financial circumstances. If you aren't common law married, you don't have these kinds of rights.

Most jurisdictions don't recognize common law marriage. If you're planning to move away from D.C., or if you have any other questions about your situation, regardless of whether you're already in a common law marriage, please contact an experienced family law attorney for advice.

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