Proving a Common Law Marriage

If you've considered yourself to be married—even though you and your partner never got a marriage license or had a ceremony—you might have a common law marriage. But that will depend on where you lived when you established your relationship and whether you can prove you meet the legal requirements for valid common law marriages.

When Do You Need to Prove That You Have a Valid Common Law Marriage?

You might need to prove that you have a valid common law marriage in a number of situations, including when you:

• are separating from your partner and want a divorce so that a judge may issue orders dividing your property or awarding alimony, but your partner claims you were never married
• are trying to inherit property from your partner's estate or to pursue other estate planning benefits
• want to claim insurance benefits, Social Security benefits, or other retirement or employment benefits through your spouse, or
• want to claim tax and other legal benefits available to married couples.

Basic Requirements for a Common Law Marriage

Couples in valid common law marriages generally have the same legal rights and obligations as any other married couple. If you want to take advantage of those rights, you'll typically need to prove that:

• you established your marriage relationship while living in a state that recognized common law marriages for all purposes
• both of you meant for your relationship to be a marriage, and
• you lived together and held yourself out in public as a married couple.

State Recognition of Your Common Law Marriage

For your common law marriage to be valid, the state where you live must recognize your relationship as a legitimate common law marriage. States have different laws on common law marriage, which generally fall into one of these categories:

• States that recognize all valid common law marriages. Common law marriage has fallen out of favor in the United States, and most states no longer allow it. Only a few states (including Colorado and Texas) still recognize common law marriage for all purposes, regardless of when or where the marital relationship began.
• States that recognize common law marriages established before a certain date. Many states only recognize common law marriages that existed before the state abolished these informal marriages (usually through changing a statute, but sometimes through a court decision). Several of these states changed their laws many years ago, so few (if any) couples would still be around to qualify. But some states banned common law marriage more recently. In South Carolina, for instance, courts will recognize common law marriages established in the state before July 24, 2019, but not after that. (Stone v. Thompson, 833 S.E.2d 266 (S.C. 2019).)
• States that don't recognize common law marriage (except those established in other states). Most states don't recognize any common law marriages established within their borders. However, they still should recognize valid common law marriages established in other states that allow the practice. This is because Article IV of the U.S. Constitution requires states to give "full faith and credit" to the laws of other states. Some couples have tried to establish a common law marriage by holding themselves out as married while traveling to a state that recognizes common law marriage, but they've generally been unsuccessful. Most courts have found that a temporary visit to another state isn't enough to establish a common law marriage that otherwise wouldn't be valid in the state where the couple resides.

Mutual Intention to Create a Common Law Marriage

For a common law marriage to be valid, both partners must intend to live as a married couple during their relationship. This generally means that you and your partner voluntarily entered into a long-term, committed, intimate relationship with the intention to take on the social and legal responsibilities of marriage.

Holding Yourself Out to the Public as a Married Couple

Typically, you and your partner must have "held yourself out" to the public as a married couple. The exact standard will depend on your state, but a judge will generally look at all the circumstances and consider whether you both consistently presented yourselves as a married couple to family, friends, and members of the community.

Living Together or Assuming the Responsibilities of Marriage

To establish a valid common law marriage, you and your partner must generally have lived together (or "cohabitated") consistently during the marriage. Contrary to popular belief, there's no rule that you must live together for seven years, or for any set amount of time.

Because it's now more common for unmarried couples to live together without planning to get married, some courts have said that cohabitation is becoming a less important factor in determining whether a common law marriage exists. However, it's still generally a minimum requirement.

In addition to living together, you'll need to show that you mutually assumed the responsibilities of a marriage, by doing things like sharing your income and expenses, leasing or owning a home together, raising children together, or both contributing to the upkeep of your home. You don't necessarily need to do all of these things to qualify. A judge will consider all the circumstances and decide whether, on whole, you lived and acted like a married couple.

Other Marriage Requirements

To qualify for a common law marriage, you'll typically need to satisfy the other general marriage requirements in your state. For example, in most states both spouses must be at least 18 years old (or sometimes younger than that with a parent's consent) and have the mental capacity to understand the commitment and consequences of marriage.

All states also have laws that prohibit marriage between close relatives (incest) or marriage to more than one person at the same time (bigamy).

The details of these requirements vary, and the laws may change over time—so it's important to understand the specific requirements that apply in your state.

Evidence Required to Prove a Common Law Marriage

The exact evidence you'll need to prove a common law marriage will depend on your state's laws. But here are some examples of evidence that may help to prove a valid common law marriage:

• an agreement or other official document signed by both partners declaring your intention to marry
• affidavits or testimony in court from you or your partner (ideally both) swearing to the existence of your informal marriage, explaining the nature of your relationship, and describing actions you took that demonstrated your intention to be married (such as exchanging rings and celebrating anniversaries)
• affidavits from friends, family, or neighbors explaining their knowledge of your relationship, your living arrangements, and your reputation in the community as a married couple, including whether you participated in community activities as a family and referred to each other as "husband," "wife," or "spouse"
• financial statements from any joint bank or credit accounts
• tax returns that you filed as a married couple
• leases, deeds, or mortgage documents showing that you jointly held property
• insurance, employment, or other benefit forms or policies listing your partner as your spouse
• school records, birth certificates, or religious records like baptismal certificates that list both partners as the child's parents, and
• documents showing that you or your children assumed your partner's last name.

Common Law Marriages for Same Sex Couples

Same-sex marriage has been legal in all 50 states since the U.S. Supreme Court's ruling in the Obergefell case in 2015. (Obergefell v. Hodges, 576 U.S. 644 (2015).) Other courts have consistently held that this decision applies equally to common law marriages between same-sex couples.

Although same-sex couples have the same legal right as opposite-sex couples to establish a common law marriage, gay and lesbian partners may have a harder time gathering the evidence required to prove that their relationship qualifies. For instance, these couples didn't have the option to file joint tax returns or list their partner as their spouse on many official documents before same-sex marriage was legalized. Also, because gays and lesbians often faced discrimination in social and professional settings, same-sex couples haven't always had the ability to hold themselves out in public as a married couple.

Some courts have held that judges should take a broad view that considers these realities when assessing evidence of a same-sex common law marriage. Even so, same-sex partners will still need to show, through their conduct, that they both intended to live together as a married couple.

Getting Help Proving You Have a Valid Common Law Marriage

Proving that your relationship qualifies as a valid common law marriage can be challenging. If you have any questions or concerns, you should consider consulting with an experienced lawyer who can help you understand your state's specific requirements.

If you can't afford a lawyer, you may be eligible for free or low-cost legal services through your local legal aid organization. Court employees at the self-help desk or civil clerk's office at your local courthouse can also answer questions and direct you to the forms you'll need to begin the process.