Talk:Common-law marriage/Archive 1

Canada

Canada doesn't have "common law marriage." What it does have is "common law status" which automatically kicks in after two people have lived together for two years. What changed in 1999, after M. vs., H. is that same-sex couples could also have common-law status. — Preceding unsigned comment added by 216.113.216.137 (talk • contribs) 18:37, 16 July 2003‎

This subject is a bit more complicated. From what I can see the reference above are to common law relationships under federal law, which does not really have the proper constitutional competence to deal with effects of marriage issues. The provinces have laws that vary, so I have put in a paragraph about Ontario. What is the difference between saying that someone has common law status v. common law marriage? I am not sure. Alex756 20:24, 21 August 2003

Actually, it is inaccurate to say that common law status automatically kicks in after two years. "Common-law status" is simply the status of recognition as applied to a couple for the purposes of a particular law. For example, in British Columbia, a common-law spouse under the Family Relations Act (and only for some purposes under that Act) must have cohabitated for a period of at least two years. Meanwhile, under the BC and federal student loans legislation, a common-law spouse is defined as someone who has cohabitated for at least 12 months. So it is more accurate to say that one is a common-law spouse for the purposes of a particular law.

Obligations

I see that there are rights for these couples. Are there obligations such as going thru some process of divorce to break up? — Preceding unsigned comment added by 80.58.3.170 (talk • contribs) 15:47, 17 September 2004

Yup (at least in the US; dunno about other places). Once a couple is "common-law married", they are married just the same as any other method of marriage. Jpgordon 15:53, 17 Sep 2004 (UTC)

Yes, once a marriage is established a divorce is necessary. However if you just shack up for a couple years and are never married no divorce is necessary. You just break up like any other breakup. Once you break up and a year passes it proof no marriage ever existed.

• I see that in the text: "Additionaly after the relationship dissolves a statute of limitations of 1‒2 years proves a marriage never existed. After said time it is positively shown that an agreement to be married never existed." But this isn't the common use of the term statute of limitations. If one files a tax return as married (under common law) and then breaks up and a year passes, do they have to ammend the return? When I was trained in tax preparation I was told that a couple who is married under common law must continue to file a tax return as married until they receive a court order. Now it's perfectly possible that I was taught incorrectly, but http://www.ct-divorce.com/Commlaw.htm says the same thing I was taught: "There is no such thing as common-law divorce. Once parties are married, regardless of the manner in which their marriage is contracted, they are married and can only be divorced by appropriate means in the place where the divorce is granted. That means, in all 50 states of the United States, only by a court order." I've done a quick google search for "statute of limitations common law marriage" and couldn't find anything, so I'd definitely like to see a link. anthony 警告 19:19, 17 Nov 2004 (UTC)

OK, here's a quote: "Statute of Limitations: If a lawsuit alleging a common law marriage is not commenced within two years after the parties separated and ceased living together, it is 'rebuttably presumed' that they did not agree to be married." That is incredibly different from saying that this "proves a marriage never existed". I'll update the article...somehow... anthony 警告 19:23, 17 Nov 2004 (UTC)

Last year, I read about a case in a Dutch court of law, where an African woman living in the Netherlands claimed to be married to somebody in a common-law marriage that had been performed in their native country in Africa. The man claimed that they had never been married (probably because he did not want to support her financially). The woman could produce declarations from witnesses to prove that they had been married in a common-law marriage. Allthough common-law marriages are virtually unknown in the Netherlands, this marriage was recognized by the Dutch court. Johan Lont 16:14, 4 January 2006 (UTC)

However, I am starting to doubt whether that constitutes a 'common-law marriage'. There had actually been some sort of 'solemnization', but no involvement of any state-official or other official formally recognized by the state. Nor had there been any document in writing.

Johan Lont 16:23, 4 January 2006 (UTC)

United States Jurisdictions

This section would be greatly improved, IMHO, by a list of the '10 jurisdictions'. I'd do it myself, but as an Aussie, there's not a lot I know about US law. Lokicarbis 03:45, Mar 11, 2005 (UTC)

Why exactly is there a link to the article (Posthumously) in the United States section following the link [New Hampshire]?Samtrost 14:12, 9 February 2006 (UTC)

Introduction

Until a few days ago, I wasn't aware of what a common-law marriage was. Anywho, while I feel this article does a good job of explaining what a common-law marriage is in different areas, it does not seem to provide an adequate introduction to those unfamiliar with the subject. Also, is it necessary to differentiate between the two classes at the top of the article, if one is less common than the other. -- BMIComp (talk, HOWS MY DRIVING) 15:25, 20 August 2005 (UTC)

I have removed "Common law marriages are not blessed by religious authorities." from the distinctive list because, in fact, one important class of commmon law marriages consists of marriages where husband and wife have had a religious marriage ceremony but overlooked the necessity of obtaining a marriage license. This is implicit in the discussion of common law marriage in court cases such as a recent Utah polygamy case taken up by the state supreme court. Opinion here. Ohwilleke 20:24, 29 June 2006 (UTC)

LOLOLOLOLOLOLOLOL

The Navajo Nation allows common law marriage and allows its members to marry using tribal ceremonial processes as well as traditional processes.

Either this needs to be clarified or it is so ironical it is fantabuluously retahded.

LOLOLOLOLOLOLOLOL —Preceding unsigned comment added by 65.96.173.210 (talk) 17:10, 18 December 2008 (UTC)

Massive overhaul of United States section

I have conducted a massive overhaul of the U.S. section to bring it up to Wiki standards, however I am sure it needs more editing. I will try to update the intro section, but I feel that somehow "common law marriage" is possibly being confused with domestic partnership, which I believe to be anything that isn't a solemnized marriage and not otherwise prohibited by law. I am looking for some input regarding this distinction. Assawyer 15:53, 20 Aug 2005 (UTC)

Question about massive overhaul potential

I wonder why not all 50 states are talked about in this text. I assumed that the supreme court case made all states that had not outlawed this form of marriage indeed still recognized it but this does not seem to be a dichotamous truth because not all 50 states are talked about in this article...

Could clarification be offered please?

Feel free to take this blurb out when its addressed Thanks!

• The simple answer is that I was unable to locate any information regarding the some 20 states not mentioned. Either they had already outlawed common-law marriage or did so after the Supreme Court case I cited. From what I have read the states I listed as having common-law marriage are the only ones. If you see what this article looked like before I started editing, you probably would agree it has come a long way. I know it still needs work, but that is what Wikipedia is all about. P.S. If you could sign your post, it would be helpful for everyone, including myself, to know to whom each message belongs. Assawyer 04:47, 1 November 2005 (UTC)

No common law marriage in Illinois at all?

If memory serves, there is an Illinois case which says that Illinois does not recognize common law marriages contracted in other states even if those marriages are legal in those other states. I don't have the citation handy, but if memory serves it involved a couple that was common-law married in Iowa and then later moved to Illinois ("husband" was a dentist, if that helps someone else find the case). Crypticfirefly 05:36, 27 September 2005 (UTC) After further checking, I believe the case is Hewitt v. Hewitt, 77 Ill.2d 49, 394 N.E.2d 1204, 31 Ill. Dec. 827 (1979). Some law student with "free" access to Lexis or Westlaw should check to see if this is still good law.

There is no common-law marriage in Illinois.

If you read s:Hewitt v. Hewitt you will discover that the case involves Mrs. Hewitt attempting to assert a common-law marriage in Iowa from the time she and her husband lived in Illinois. However, the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/214) states that common law marriages contracted in Illinois after June 30, 1905, are invalid. See: Illinois Vital Records: What is a common law marriage? Assawyer 07:12, 27 September 2005 (UTC)

• Thanks for checking that. Note that the Hewitt marriage was not contracted in Illinois, it was contracted in Iowa. If memory serves, the argument was that common law marriage is not a judicial act and therefore full faith and credit does not apply. (Perhaps you could do us a favor and stick Hewitt in Wikisource? I don't believe it is available online anywhere.) Is Illinois law unique in this way? I think the discussion in the article may be incorrect about how full faith and credit applies to marriages. I'm fairly sure, for example, that people who marry their first cousins in one state and then move to another that doesn't permit first cousin marriage don't wind up with their marriages unrecognized. I think it was uncertainty in that regard that led to the "Defense of Marriage Act."

No problem. I will try and post the case in Wikisource. I believe you are correct that Full Faith and Credit only applies to common which are recognized by a court. In Meisher v. Moore which I cited in the article, the United States Supreme Court ruled that marriages are contracts found in common law, so bascially common-law marriages are oral contracts which are entitled to full faith and credit, provided that the state which they are in recognizes such a contract. I do not believe your hypothetical is accurate, since if two first cousins got married in Massachusetts and then moved to New Hampshire, which doesn't allow first cousins to get married, NH would not recognize thier marriage. I believe the DOMA was to provide a common frameword for the Federal government in recognizing marriages, it does not take away the power of the states to regulate marriages how they wish. I am not a legal scholar, but this is my basic understanding of it. P.S. if you could sign your comments by typing ~~~~ at the end of your post that would be helpful. Thanks. Assawyer 23:54, 27 September 2005 (UTC)

• Just to clairify, "full faith and credit" is a constitutional concept that does not apply to contracts. To quote the Constitution: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. Contracts are not "public acts" (that is to say, laws), are not records (though they might be recorded), and are not judicial proceedings. The reason that a common law marriage "contract" is not enforceable in a jurisdiction that does not provide for common law marriages is that they are in a sense illegal contracts. With respect to the recognition of marriages illegal in one state that are performed in another state-- e.g. there is a marriage license involved-- those marriages are recognized in the state that otherwise would not permit the marriage (assuming no public policy problem such as incest). Think about the chaos that would ensue otherwise, and consider the recent situation with Matthew and Crystal Koso That said, many states have a rule that non-residents of the state cannot get a marriage license if the marriage would be illegal in the state where they reside. Agreed that DOMA doesn't restrict states from regulating marriages, as noted it sets an outer limit on what kinds of unions states must recognize as valid marriages. 68.20.28.234 03:31, 29 September 2005 (UTC)

New York

i believe that New York state's rule is that it will recognize a common-law marriage if the marriage occurred in a state other than new york that recognizes common-law marriages, and also if the union satisfies said state's test for common-law marriage. Streamless 21:03, 22 February 2006 (UTC)

North Carolina

Article erroneously cites NC as a state allowing common-law marriage. This is false. Also the wiki article on Common Law Marriage in the US contradicts this article and cites correctly that common law marriage is not recognized in the state of North Carolina. —Preceding unsigned comment added by 70.145.252.232 (talk) 15:10, 26 September 2010 (UTC)

How does this affect polygamy?

So, I remember hearing somewhere that some married guy was living with a woman who he wasn't married to for long enough that he was considered common-law married to the woman, and so he got in trouble for practicing polygamy, or something.

Is this possible under any state or country that any of you know about?

I wish someone who knows about all of the laws relating to this could explain to me about this. Also, if my story is correct, then it would be helpful to then have a section about how common-law marriage deals with things like polygamy or being married to one person, yet being "common-law married" to another. (Sorry for the low quality of my comment ;) ) Robotbeat 21:16, 25 November 2005 (UTC)

Your comment is a good one. I do not know of any states or countries that allow that which you are referring. The only way it could happen, and the marriage be legal, is if the jurisdiction didn't somehow prohibit polygamy by common-law marriage. For example: In South Carolina common-law marriage is permitted. However, in the South Carolina Code of Laws, Sec. 20-1-80 states:

"Bigamous marriage shall be void; exceptions.

All marriages contracted while either of the parties has a former wife or husband living shall be void. But this section shall not extend to a person whose husband or wife shall be absent for the space of five years, the one not knowing the other to be living during that time, not to any person who shall be divorced or whose first marriage shall be declared void by the sentence of a competent court.

Therefore any person who is already married and chooses to have a "common-law marriage" is not legally married to the second person. I believe that all states prohibit polygamy, not sure about those countries which have common-law marriage if they prohibit it. I hope this answers your question. Assawyer 02:58, 28 November 2005 (UTC)

Don't attach much weight to what somebody said in a bar discussion. I can only comment on the Scots law of "marriage by habit and repute" although I expect that this would apply in countries with similar laws. In this situation they would not be done for polygamy, simply the second relationship would not be regarded as a valid "marriage by habit and repute". PatGallacher 22:41, 25 December 2005 (UTC)

What's with all the 'of course's?

Not very encyclopedic at all. I know next to nothing about common law marriage but could somebody who do, snip at least some of the of courses away? Kaleissin 21:57, 25 December 2005 (UTC)

Unclear definition

After reading the definition for the third time, I am no longer sure what it says. I read:

The essential elements of a common law marriage are that a man and woman, both of whom are of legal age to contract a statutory marriage, mutually consent to live together and hold themselves out to the world as husband and wife.

If that are the essential elements, than all the marriages in the USA are common-law marriages, except for

• the marriages where husband and wife do not consent to live together and
• the marriages where husband and wife do not hold themselves out to the world as husband and wife (secret marriages).

In the next sentence, I read:

By definition, there is nothing in writing between the parties.

If that is part of the definition, it should be included in the first paragraph. Johan Lont 16:28, 4 January 2006 (UTC)

johan, it's not that the lack of a writing is part of the definition so much as if there were a writing, it would be a marriage contract or cohabitation agreement. the purpose of common-law marriage is to provide rights to people who may have never agreed verbally or by written agreement to get married, but nevertheless 'behave' in a married fashion. Streamless 20:01, 17 March 2006 (UTC)

Such an agreement only further demonstrates the parties intent to be married. It isn't a per se requirement. --Assawyer 22:19, 9 May 2006 (UTC)

I thank the anonymous user who clarified the definition on 11 May 2006. Johan Lont 10:02, 28 June 2006 (UTC)

The definition is inaccurate. It is implied that the common law recognises a form of marriage which "can be legally contracted in an extremely limited number of jurisdictions and is universally recognized as a valid marriage". Both claims are incorrect. The common law has never recognised "common law marriages" as legal marriages. Any any such irregular "marriage" is not recognised in most countries. The reality is the "common law marriage" is a synomym for what used to be called "living in sin". There are customary and other forms of marriage, but these are different.203.184.41.226 (talk) 00:50, 22 September 2012 (UTC)

Scotland

The first sentence of the last paragraph in the United Kingdom section just doesn't make sense.

"It is a testament to the influence of English and American legal thought that 57% of the Scots surveyed, for a study conducted in year 2000, either believed "common-law marriage" was synonymous with "marriage by habit and repute" (which is correct - indeed, many U.S. jurisdictions legally define "common-law marriage," in whole or in part, as "marriage by habit and repute"); or they believed it was synonymous with domestic partnership, which Hungary and some other countries modernly call "common-law marriage" (which is wrong)."

I don't believe "habit and repute" is what is popularly thought (in the UK at least) to be a common-law marriage. Note that "habit and repute" required the couple to act as if married so that people thought they were (hence the habit and repute) it would be no good for them to live together as if husband and wife but for it to be widely known that they were not. Also it habit and repute required a court order; that wasn't the case with the pre-Hardwicke situation in England, nor with the situation as understood (wrongly) by most people. Francis Davey 16:55, 24 August 2006 (UTC)

"Marriage by habit and repute" in Scotland

This article contradicts itself on the status of "marriage by habit and repute" in Scotland

--- In the United Kingdom section it says: "In 2006 "marriage by habit and repute" was also abolished in the Family Law (Scotland) Act 2006."

--- Later in the United Kingdom section: "It notes that "common law marriage" is not part of Scots Law, but fails to note that "marriage by habit and repute" - which is the same thing - is part of Scots Law."

--- In the General History section: "Nevertheless, all Protestant and Eastern Orthodox countries eventually abolished "marriage by habit and repute" with the sole exception of Scotland, which last considered abolition in 1992, and decided it was not necessary to bother."

Am I right in assuming that a recent law has abolished "marriage by habit and repute" and the second two quotes haven't been updated to reflect this?

This whole article is wildly misleading and confused. Anciently (and certainly pre-1752) in England and Wales (and hence in all common law jurisdictions) there wasn't really a notion of "common law" marriage. The courts accepted that a marriage had taken place, whether or not it had been regularly solemnized by the religious authorities and many "irregular" marriages (a better term at that stage) occurred (indeed may have been the norm). Lord Hardwick's Marriage Act changed that so that a marriage could only be transacted in one of 3 forms (two restricted two Jews and members of the Society of Friends). The term "common law marriage" comes later. It never meant anything in England and Wales although it is used (wrongly) for a situation of cohabiting. Scotland of course never had anything of the sort. "Habit and Repute" required an order of the court to retrospectively establish a marriage, making it quite different from marriages recognised by common law (which could of course be secret). Its nonsense to talk about Hungary having "common law" marriages - its not a common law country. Francis Davey 19:53, 17 July 2006 (UTC)

The part about Hungary is definitely fishy, also it doesn't cite references, so I removed it. --89.134.141.176 (talk) 18:23, 19 January 2012 (UTC)

Very poor choice of words in lead

"The term is often mistakenly understood to indicate an interpersonal relationship that is not recognized in law. In fact, a common law marriage is just as legally binding as a statutory or ceremonial marriage in some jurisdictions — it is just formed differently."

In Britain, there is no "common-law marriage" with legal force. Thus "mistakenly" is absolutely incorrect when it comes to the UK. 86.143.52.14 03:16, 15 May 2007 (UTC)

The statement, as you quoted it, says "a common law marriage is just as legally binding as a statutory or ceremonial marriage in some jurisdictions". So it does not claim that they are legally-recognized in all countries - including the UK. What the lead is saying is that, in spite of some misunderstandings to the contrary, true common-law marriages are, in the places and times where they exist(ed), legally recognized. --thirty-seven 05:24, 15 May 2007 (UTC)

Ontario Information Incorrect!

Couples are now common-law in Ontario after 12 months of continuous co-habitation, not 36.220.23.58.94 18:49, 16 May 2007 (UTC)Freemount

"Other Provinces" Now Includes Manitoba

36 months in Manitoba. As of 2004. How often is this updated? 220.23.58.94 18:51, 16 May 2007 (UTC)Freemount

Is this intentional: "The practice persevered in Scotland because the Acts of Union 1707 provided it retained its own legal system separately from the rest of the chicken" ?

Never any common law marriage in Arkansas

Previously there was uncited and totally unfounded information on this page that Arkansas has common law marriage requiring 7 years of continuous cohabitation. About two minutes of searching revealed this to be totally wrong; there never has been common law marriage in Arkansas.

Furth v. Furth 97 Ark. 272, 133 S.W. 1037 (Ark. 1911)

Even if it can be said that a present contract of marriage between a man and a woman, followed by cohabitation, is valid under the common law, we hold that the common law in this respect has never obtained in this state, and follow the ruling of * * * in this respect.

(citations to Massachusetts cases removed)

This was upheld as recently as 2001 in another Arkansas Supreme Court decision, citing Furth: Fryar v. Roberts 346 Ark. 432, 57 S.W.3d 727 (Ark. 2001)

Over the past ninety years, this court has handed down several decisions on the formalities that are necessary to create a valid marriage in Arkansas. We have clearly and consistently reiterated that Arkansas does not recognize common-law marriages contracted in this state. NTK 13:50, 31 August 2007 (UTC)

Looking at the history of this page, it seems that it used to reflect the correct information until an anon (68.51.56.56) unexplainedly changed it on June 28. Such edits should be carefully scrutinized. NTK 14:00, 31 August 2007 (UTC)

Putative spouses section

I think that this section might fit better in the article putative marriage. This is tangential to common-law marriage, since it is not actually marraige, but just a gaurantee of marraige-like benefits. Unless anyone objects, I will move it over in about a week. --Jjamison 04:05, 12 September 2007 (UTC)

I merged the section into putative marriage. --Jjamison 04:04, 19 September 2007 (UTC)

Consummation

Hi, There was a reference to, under the UK, that common law marriage required consummation. ("and by consummation under canon law.") Pope Alexander III in the 12'th century struck this requirement out (See http://uclue.com/?xq=809, "The Medieval Idea of Marriage" by Christopher Nugent Lawrence.") While consummation may have made a marriage non-dissolvable, it was not required to create a marriage. Also see Bishop on Marriage and Divorce, citing that only consent was required to create a marriage). I've removed this from the original entry. —Preceding unsigned comment added by Coderoyal (talk • contribs) 03:11, 17 September 2007 (UTC)

Oklahoma

Just reverted a couple of unsourced edits by an IP regarding Oklahoma. The anon editor contends that common-law marriage does not exist in Oklahoma. Googling turned up the fact that a bill banning recognition of common-law marriage in that state died in committee in 2005; this is the most recent status I could find. I've added a sentence (with a ref) to that effect. Anyone know of more recent changes on this? -- Dethme0w 22:43, 30 September 2007 (UTC)

Texas

TEXAS COMMON LAW MARRIAGE - INFORMAL MARRIAGE: On this site it states that; "While in the actual wording of the law there is no specification on the length of time that a couple must cohabitate to meet the second requirement of the 3-prong test, it is understood within Texas law that cohabitation must occur for an extended period of time, usually two years, but in certain cases where the situation is more complicated and other factors are involved, three years can be the requisite time period.

I cannot find anything to support this part of the 3-prong test. I am currently involved in a case with a woman who is after my money and trying to claim we are married via the Texas Informal Marriage guidelines. I have only known her a few months so if this part of the law is held to be true, I would like to hear from anyone with information that can back this up. —Preceding unsigned comment added by Rusty853 (talk • contribs) 19:45, 6 October 2007 (UTC)

South Carolina

Followed the link for SC information, and could not verify it. Did see where common-law marriages entered into by individuals under the age of 16 are void. Nothing more. No comment in any legal documents about any "recent" changes - save same-sex unions. Any suggestions to find more information?Sed13224 04:36, 2 November 2007 (UTC)

****Update**** As of January 1, 2006 the practices of allowing common law marriages has been removed from state law. The purpose of the bill:" TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 20-1-110 SO AS TO PROVIDE THAT COMMON LAW MARRIAGE IN THE STATE MAY NOT BE RECOGNIZED ON AND AFTER JANUARY 1, 2006, AND TO PROVIDE AN EXCEPTION FOR A COMMON LAW MARRIAGE EXISTING AS OF DECEMBER 31, 2005; AND TO REPEAL SECTION 20-1-360 RELATING TO THE VALIDITY OF A MARRIAGE CONTRACTED WITHOUT THE ISSUANCE OF A LICENSE." http://scstatehouse.net/sess116_2005-2006/bills/3588.htm

That bill did not pass as listed on the most recent SC Code of Laws, Title 20, site: http://www.scstatehouse.net/code/t20c001.htm

April 28, 2005, House read third time and sent to Senate Feb. 3, 2006, Senate referred to Subcommittee...latest wording was to not recognize common-law marriage after June 30, 2007. No more recent information available in Session 117 - 2007/2008.Sed13224 05:12, 2 November 2007 (UTC)

Ontario

I rewrote parts of this section because the existing statements were incorrect statements of law.

e.g. A person CAN have a married spouse and a "common law" spouse at the same time in Ontario (previously the article said the 3 year clock in Ontario doesn't start ticking until a divorce is granted--that is simply not true). There were other problems, which I have corrected.