A lot of people have misconceptions about common law marriage—what it means, whether and where it still exists, how to prove that your relationship qualifies, and how to end a common law marriage. Learn the real facts here.
Common law marriage—sometimes called informal marriage—is a marriage that's established without legal formalities like taking out a marriage license or having a religious or civil ceremony. The basic features of a common law marriage are:
Once a couple meets these criteria for a common law marriage (discussed in more detail below), their legal status is just like any other marriage. That means they enjoy all the rights and benefits of marriage, including:
Couples in common law marriages also have the same legal obligations as any other married couples, such as the duty to support each other and to protect marital property. But if you want to take advantage of these rights and responsibilities, you'll have to prove that your relationship meets the requirements for a common law marriage.
The first thing to understand about common law marriage is that it's no longer common. Over the years, most states in the U.S. have stopped allowing these informal marriages, through either their laws or court decisions (known as "case law"). Below, we list where common law marriages are recognized, as well as how it works when a couple in one of these marriages moves to another state.
In addition to living in the right place, you must meet the basic requirements under the marriage laws in your state, such as:
Even once you've met those hurdles, you'll have to prove that your relationship meets the other criteria for common law marriages.
This may seem obvious, but it's worth emphasizing that both partners must intend to establish a common law marriage—to share their life in a committed, intimate relationship with all the legal and social responsibilities of marriage.
Of course, if one person in the relationship denies agreeing to be married—or one of them has died—the question arises: How do you prove someone's state of mind without a marriage license or ceremony? That might be easy if the couple signed an agreement or other written document. For instance, Texas allows couples to register their informal marriage filing a declaration with the county clerk. (Tex. Fam. Code §§ 2.401, 2.402 (2022).)
Most of the time, however, judges have to look at a couple's actions to decide if they had a valid common law marriage.
What does it mean to hold yourselves out as a married couple? Usually, judges must decide this, based on the specific circumstances in each case as well as the standards that have been established in their state's statutes and—more often—in case law. These standards can vary from state to state. They may also change over time. For instance:
Some of the conduct that can demonstrate your intention to be in a common law marriage include:
Of course, couples might do some of these things and not others. Judges have to weigh all the evidence—including how family and friends view the relationship—and make a decision based on the total picture. That's why it can sometimes be difficult and complicated to prove that your relationship qualifies as a valid common law marriage.
The myth that you're in a common law marriage if you live together for seven years is just that—a myth. None of the states that recognize these marriages have set a minimum amount of time that you and your partner must live together before your relationship qualifies. And no matter how long you've shared a home, you won't be considered married unless you've met the requirements (discussed above) for a common law marriage.
Only eight states in the U.S. (plus Washington, D.C.) allow couples to establish new common law marriages in those states for all purposes. But that doesn't necessarily mean you can't be in a valid common law marriage if you live elsewhere. Some other states recognize these marriages if they existed before a certain date, and one state recognizes them for a limited purpose. Also, all states should recognize common law marriages that were established in other states that allow them. Here's the breakdown.
The following states currently recognize valid common law marriages—regardless of when they were established—either in state laws or as a result of court rulings:
New Hampshire also recognizes common law marriage, but only for the purpose of inheriting property from a deceased partner, and only if the pair lived together as a married couple for three years until one of them died. (N.H. Rev. Stat. § 457:39 (2022).) In other words, your the common law marriage won't legally exist in New Hampshire until your partner dies, which then allows you to claim any inheritance as a surviving spouse.
It's worth pointing out that states could drop off this list any time, whether because the legislature rewrites the law or because of a court decision. For instance, South Carolina allowed common law marriage until 2019, when the state's supreme court held that, going forward, couples could no longer enter into a valid marriage without getting a marriage license. (Stone v. Thompson, 833 S.E.2d 266 (S.C. Sup. Ct. 2019).) And while Rhode Island's high court didn't take that action on its own, the justices practically begged the state's legislature to abolish the "outmoded doctrine" of common law marriage. (Luis v. Gaugler, 185 A.3d 497 (2018).)
Sometimes, a state's law and its court decisions appear to contradict each other. For instance, Oklahoma's statute says that you must get a marriage license if you want to be married in the state. (Okla. Stat. tit. 43, § 5 (2022).) But the Oklahoma Supreme Court has said that if the legislature wants to abolish common law marriage—which has long been recognized in the state—it must do so explicitly. (Erlandson v. Coppedge, 451 P.3d 909 (Okla. Sup. Ct. 2019).)
Many states recognize only those common law marriages that existed before the state abolished this type of marriage. The following list includes the states where cut-off date was after 1940. (Presumably, almost no one who entered into a common law marriage before then is still alive.)
If you have a legitimate common law marriage in a state that allows these informal marriage, and you move to a state that doesn't permit them, your marriage should still be valid where you live now. This is because Article IV of the U. S. Constitution requires states to give "full faith and credit" to the laws in other states—including marriage laws.
In the wake of the U.S. Supreme Court's ruling that legalized same-sex marriage (Obergefell v. Hodges, 576 U.S. 644 (2015)), courts have consistently held that the high court's decision applies to common law marriages, just as it does to any other marriages. And several courts have explicitly ruled that Obergefell applies retroactively to same-sex couples who established valid common law marriages under state law before 2015. (For example, see Ranolls v. Dewling, 223 F.Supp.3d 613 (E.D. Tex. 2016).)
Same-sex partnerships could affect some of the factors that courts have traditionally considered when deciding whether a couple's behavior demonstrated their intention to be in a common law marriage. For example, as the Colorado Supreme Court pointed out, before same-sex marriage was legal, gay couples wouldn't be able to show that they filed tax returns as a married couple or listed their partners as "spouse" on beneficiary designations or other formal documents. Also, their "precarious legal and social status" may have prevented them from holding themselves out to the larger public as a married couple. Still, they must have engaged in other conduct that demonstrated their shared intention to establish a marital relationship. (Hogsett v. Neale, 478 P.3d 713 (Co. Sup. Ct. 2021).)
There's no such thing as "common law divorce." If you had a valid common law marriage and then split up, you generally need to get divorced under your state's laws that apply to ending all marriages, particularly if you want the court to issue orders dividing your property or awarding alimony.
Often, you have to file a legal or administrative proceeding to have your common law marriage recognized, such as when you're requesting alimony or a property division in a divorce, but your former partner denies ever agreeing a common law marriage. Some states have set time limits on these claims.
For instance, Texas law says that if you don't start a proceeding like this within two years after you separated from your partner, the law will consider that you weren't in a common law marriage. (Tex. Fam. Code § 2.401(b) (2022).) And in Utah, you must file a petition for an "unsolemnized marriage" while you're still in the relationship or within one year after you've split up. (Utah Code § 30-1-4.5(2) (2022).)
You don't have to be married to change your name. In theory, many states allow you to legally change your name by usage only—meaning that you simply start using your new name, without any court action. Practically speaking, however, if you're in a common law marriage, you'll need an official court order changing your name before you can get government agencies and many private companies, such as banks and title companies, to accept your new name.
If you live together in a state that recognizes common law marriages but don't wish to be married to your live-in partner, it's a good idea for you both to sign a living together agreement (sometimes called a "cohabitation agreement"). In the agreement, you can:
It's particularly important to have an agreement like this if you use the same last name, mix your property together, or take any other actions that could later be considered evidence of establishing a common law marriage.