Common Law Marriage in Ohio

Learn about common law marriage in Ohio.

By , Retired Judge

Ohio Marriage Laws

Marriage laws vary from state to state. Ohio law provides that males may marry at the age of 18 and females at the age of 16. Those who are younger must first obtain consent to marry. (Ohio Rev. Code §3101.01.) You can't marry someone who's related to you closer than a second cousin. And, of course, you can't get married if you're currently married to someone else.

Same-sex marriage is permitted in Ohio, despite the marriage statute's language to the contrary. That's because the United States Supreme Court's decision in Obergefell v. Hodges, 576 U.S. 644 (2015) legalized same-sex marriages in every state.

In order to enter into a marriage today in Ohio, you'll have to obtain a formal marriage license. But there's also a concept known as "common law marriage," which doesn't require a traditional license or marriage ceremony.

What Is Common Law Marriage?

Common law marriage is a legal concept that applies to couples who are in a relationship that has the appearance of a marriage, but hasn't been formally sanctioned by the state (such as by the issuance of a marriage certificate). A valid common law marriage typically confers both the benefits and obligations of a formal marriage.

Whether a common law marriage exists depends on a number of factors. First and foremost, a state has to acknowledge the legitimacy of common law marriages. It if does, then the validity of the marriage will hinge in large part on how the couple view the relationship, and how they act on that perception.

Does Ohio Have Common Law Marriage?

When it comes to common law marriage, Ohio law won't permit it for any relationship entered into after October 10, l991. (Ohio Rev. Code §3105.12 (B) (1).) However, Ohio will recognize common law marriages validly entered into after that date in other states or countries that permit them.

Relationships that existed prior to the cutoff date will qualify if they comply with Ohio's common law marriage standards. (Ohio Rev. Code §3105.12 (A).) For example, the couple must meet the age and degree of kinship requirements, referenced above. There must also be proof of cohabitation. (Contrary to popular belief, there's no minimum amount of time the couple has to be living together.)

The couple must also prove the "reputation of the marriage". (Ohio Rev. Code §3105.12 (A).) That's kind of a vague term, but what it refers to is how the couple view their relationship (in other words, whether they consider themselves married) and how they present themselves to the public.

How Do You Prove a Common Law Marriage in Ohio?

Some of the elements of common law marriage are fairly easy to prove, like age, degree of kinship, and the fact that the couple are living together. But it's the "reputation of the marriage" that can be a little tricky, because it's highly fact-specific.

There are steps you can take to facilitate meeting your burden of proof, both as to the fact that you consider yourselves married, and that you've held yourselves out to the public as being married. Some of these steps are:

  • opening up a joint bank account
  • using the term "spouse" when referring to each other in public
  • wearing wedding rings
  • using the same last name
  • sharing expenses and household duties, and
  • filing joint tax returns.

In attempting to prove a valid marriage, you might need to obtain the cooperation of friends or family members who can corroborate your claims, either by submitting affidavits (sworn statements) or testifying in court on your behalf.

One way to eliminate the guesswork of how you see your relationship is to execute an affidavit of common law marriage. This is a notarized statement in which you affirm your mutual agreement to have your relationship considered a common law marriage. You'll also state some of the facts that would serve to prove the marriage's existence, such as noted in the list above. You might also include copies of documents to back up your claim, such as joint bank accounts, a lease in both names, or a deed to property you jointly own.

What Is the Legal Effect of Common Law Marriage?

Once you prove the existence of a common law marriage, it's just as valid as a traditional ceremonial marriage in which the state issued a license. The only way a legal common law marriage can end is by the death of one of the spouses, or divorce.

If a spouse in a common law marriage dies without a will, the surviving spouse is normally entitled to the inheritance benefits provided for in the state's law, as well as other death benefits that may exist, such as through a deceased spouse's pension.

If you're in a common law marriage, and you want to end it, you'll have to go through the formal divorce process. This means that all of the divorce laws that impose responsibilities and allocate rights around dividing marital property, alimony, child support, and child custody, will apply to you and your common law spouse.

If you have specific questions, contact a local family law attorney for advice.

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