The Difference between Common Law Marriage and Legal Marriage

Under Legal on The Free Dictionary, a common law marriage is the “A union of two people not formalized in the customary manner as prescribed by law but created by an agreement to marry followed by Cohabitation.”  That is, more or less, what many think of when they think of common law, but many may also not be aware of the implications.

Anyone who has ever uttered the expression “It’s only a piece of paper” should reconsider that remark.   Yes, it is a piece of paper, however it should be stressed that it is a legal piece of paper with all the accompanying rights and obligations carried with it.  The lack of such a “piece of paper” can severely impact one’s ability to care for, inherit from or conduct business in the name of a significant other.

It is a common misconception that all unions involving living together of a sufficient length of time would qualify legally as a marriage even without the requisite legal documents to back it up.  That would be an erroneous view, and it may surprise the average person to learn that most states actually do not recognize common law marriages, and much of the reason is because of the legal entanglements that otherwise unrecognized marriages cause.

The National Conference of State Legislatures (NCSL) has an article on “Common-Law Marriage” which lists only nine states and Washington DC as territories that currently recognize common-law marriages: Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma and Texas.  There are five others which used to but now only recognize those that occurred before a specific date: Georgia, Idaho, Ohio, Oklahoma and Pennsylvania.  These may or may not have specific stipulations and there are two other states in which specific circumstances may legally allow the status of common law marriage but only in very narrow circumstances.

If it seems to be confusing, that’s because there is no one national standard for marriage, although there is one interesting prohibition against bigamy.  In fact, outside of the Defense of Marriage Act (DOMA), which is narrowly defined and has itself come under recent scrutiny even then, there never has been a national standard for what constitutes a marriage and what does not.

For example, even polygamy was recognized by Utah until a series of federal legislation was passed that specifically targeted the LDS church in the late 1800s.  In Reynolds v United States, criminalization of bigamy was upheld, but challenges continue due to the fact that the definition and legality of marriages is usually delegated to the state level.  Recent news about same sex marriages and/or unions have illustrated the fact that legislatively it has been up to each state whether or not to enact legislation to allow, bar or even define certain types of marriages.

Cornell University Law School has published a summary chart on “Marriage Laws” which also list the states that allow common law marriage.  Obviously, such a chart should be used as a starting point only, in that compiling such information could result in unintended mistakes or misunderstandings, and laws change all the time.  However, it is a handy reference for those who do social work, legal work or are otherwise studying topics involving marriage overall.

If someone lives in a state where common law marriages are not recognized, then problems can develop in several areas.  First of all, if the couple separates, there will be little legal ground for alimony.  That may include no access to retirement funds, even if the ex-partner dies.  Second, there are no inheritance rights.  In many states, the estate can pass automatically to a surviving spouse.  Without a legally recognized marriage in place, the partner may be totally cut out of any inheritance, especially if there is no will, and may end up suing if the will is challenged.

Even if the couple lives in a state where such unions are recognized, it still requires a court to recognize it, albeit after the fact.  There may be specific guidelines for recognition.  In addition, if the matter is urgent, such as a partner with a sudden disability, all sorts of problems can surface all the while the legalities are being ironed out.  Even carrying out the duties associated with a deceased spouse may be complicated without the legal protection of a marriage certificate.

The problems associated with not having legally recognized proof of a relationship intended to be lifelong and exclusive are more than one article can cover.  In most states, the cost of the “piece of paper” is minimal, the cost of an official conducting some sort of ceremony is minimal and there are no requirements for a large and extravagant event.  However, the amount of time and money involved could literally save thousands of dollars and hundreds of hours of time later on when an emergency occurs, even in states where common law marriages are recognized.