Common-Law Marriage By Stephen Kolodny

In family law, common-law marriage describes a legally recognized relationship between two people in the absence of formal marriage commitments, such as signing a marriage contract or registering in a civil registry. However, individuals engaged in a common-law marriage enjoy many of the same rights as people who have entered into a formal marriage. The treatment and recognition of common-law marriages vary substantially from country to country, with each jurisdiction setting its own requirements and conferring its own set of rights and privileges.

In the United States, the 1877 U.S. Supreme Court case Meister v. Moore established that individuals had the right to marry according to the common law precedents of the state in question. As such, the right to marry existed through common law until the state passed a law that explicitly changed it. Simply put, the Supreme Court allowed states to determine their respective common law contracts for marriage. Although common-law marriage requirements still vary among states, as long as the state recognizes the marriage as valid, the parties involved enjoy all the federal tax benefits associated with traditional marriage.


In the majority of U.S. states that allow the practice, a couple qualifies for a common-law marriage as long as the individuals fulfill three requirements: living together, presenting themselves as a married couple, and establishing an intent to become married. In terms of cohabitation, some states, such as New Hampshire, require couples to live together for a certain number of years before they qualify for common-law marriage. However, New Hampshire allows common-law marriage only for probate purposes, ensuring that surviving spouses can inherit without any undue difficulty. To present themselves to others as a married couple, individuals can take the same last name, file a joint tax return, or refer to one another as husband and wife.


In English-speaking countries, the term common-law marriage is often colloquially used to refer to a man and a woman who have lived together for an extended period of time. However, cohabitation satisfies only one of the conditions of common-law marriage, and, as such, is insufficient to guarantee a couple the rights enjoyed by traditional spouses. In recent decades, many states and countries have outlawed common-law marriages, claiming the institution promoted fraud and debased the conventional notion of marriage.


About the Author:


An experienced family law attorney in the Southern California area, Stephen Kolodny specializes in custody litigation issues and complex property characterization. Mr. Kolodny currently serves as a Founding Partner of Kolodny & Anteau in Beverly Hills, a position he has held for more than 15 years.


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