Common-law marriage

There are two classes of interpersonal status known today as common-law (or common law) marriage. The first is lawful marriage as it existed under the common law of England prior to Lord Hardwicke's Act (1753), as well as elsewhere in Europe before abolished by statute or, in the case of Roman Catholic countries, by the Council of Trent (1545-1563). In Europe, this form of marriage survived only in Scotland, where it is called "marriage by habit and repute." In North America, it survives in about a dozen U.S. states.

The second class of common-law marriage is actually a type of domestic partnership or civil union, created or recognised by statute in many European countries, Canada, and a few other nations around the world apparently starting with a decision of the Hungarian Constitutional Court in 1996. Most of this article is concerned with the first class of common-law marriage, however, not the second.

Neither class of common-law marriage (which may, respectively, be termed "Old Style" and "New Style," or "classical" and "modern") should be confused with non-marital relationship contracts (famously or infamously dubbed "palimony agreements" by news media reporters). A non-marital relationship contract, if permitted under a jurisdiction's law, is not an interpersonal status but a contract between two or more people, either or both/all of whom can at least theoretically be married - because it is legally an ordinary contract, not a marriage or a domestic partnership. Domestic partnership, like marriage, registered partnership, civil union, and reciprocal beneficiaries relationship, is an interpersonal status.

The non-marital relationship contract apparently originated in California, as a by-product of the California Supreme Court's decision in Marvin v. Marvin(1976). Courts in England, Ireland, and the New York State Court of Appeal have all subsequently refused to recognise non-marital relationship contracts, whether express or implied, oral or written.

Conversely, all U.S. jurisdictions recognise (Old Style) common law marriages that are validly contracted in another U.S. jurisdiction. Contrary to popular belief, they do not do this in obedience to the full faith and credit clause of the U.S. Constitution (Article IV, Section 1 - which does not actually apply to marriages) but under their own policies of comity, and their own choice and conflict of law rules.

The old style or classical common-law marriage creates a legally binding marriage (provided there are no impediments to it) that can only be dissolved by a court of law (i.e., through a divorce action). The only difference between this type of common-law marriage and statutory marriage is the way the marriage is contracted. Statutory marriage invariably requires the issuance of a marriage licence by the government, a civil or religious ceremony to solemnise the marriage conducted by a person or persons authorised by government to solemnise marriages, and then the filling out and filing with government of the marriage certificate. Common-law marriage, by that or any other name, skips all that "red tape." Otherwise, there are no differences whatsoever between a marriage contracted according to statute and a marriage contracted, as one might say, "the very old-fashioned way."

The rights that attach to the modern or new style of common-law marriage, however, vary from jurisdiction to jurisdiction. Because this type of "marriage" is really domestic partnership and, more importantly, is a creature of modern statute, the rights, benefits, responsibilities, and obligations that attach to this interpersonal status depend entirely upon the statutory law that creates in. For example, in Canada - including Québec, which never knew the old style common-law marriage because it did not become a British colony until after 1753 and was previously a colony of France, a Council of Trent country - the statutes passed by the federal Parliament and the Québec Assemblé National created an interpersonal status substantially identical to statutory marriage except that it was available to both same- and opposite-sex couples. In some jurisdictions, such as Portugal, neither statutory marriage nor statutory common-law marriage are available to same-sex couples. In others, statutory common-law marriage is only available to same-sex couples, because opposite-sex couples can contract an ordinary statutory marriage.

So, depending on the jurisdiction, a new style common-law marriage may provide special benefits, such as filiation and adoption, inheritance, and division of property. In some cases the law will impose detriments upon the couple, for instance see rights and responsibilities of marriages in the United States. In all jurisdictions that still recognise old style common-law marriage (whether or not they still permit such a marriage to be contracted within its boundaries), the rights, benefits, responsibilities, and obligations of an old style common-law marriage are precisely the same as those of a statutory marriage.

Contents

1 Australia 2 Canada 3 United Kingdom 4 United States

Australia

In Australia the term de facto marriage is used to refer to relationships between men and women who are not married but are effectively living as husband and wife for a period of time. Many laws make provision for such relationships, such as social support laws.

Canada

Canadian federal law does not have "common law marriage", but various federal laws include "common law status," which automatically takes effect once two people (of any gender) have lived together in a romantic relationship for one full year. Partners may be eligible for various government benefits of married spouses based upon their relationship with the individual who is eligible for some type of family based benefit. As family law varies between provinces, there are differences between the provinces regarding the recognition of common law marriage.

In Ontario, a common law province, the Ontario Family Law Act specifically recognizes common law spouses in sec. 29 dealing with spousal support issues; the requirements are living together for three years or having a child in common and having "cohabitated in a relationship of some permanence." However, the part that deals with marital property excludes common law spouses as sec. 2 defines spouses as those who are married together or who entered into a void or voidable marriage in good faith. Thus common law partners do not always evenly divide property in a breakup, and the courts have to look to concepts such as the constructive or resulting trust to divide property in an equitable manner between partners. Another difference that distinguishes common law spouses from married partners is that a common law partner can be compelled to testify against his or her partner in a court of law.

In 1999, after the court case M. v. H., the Supreme Court of Canada decided that same-sex partners would also be included in common law relationships.

Québec, which unlike the other provinces has a Civil Code, has never recognized common-law partnership as a kind of marriage. See about De Facto Marriage in Québec (http://www.justice.gouv.qc.ca/english/publications/generale/union-a.htm). However, many laws in Québec explicitly apply to common-law partners (called "de facto unions" or conjoints de fait) as they do to spouses. See a List of These Rights and Freedoms (http://www.justice.gouv.qc.ca/english/publications/generale/union-a.htm#free) As in the other provinces, same-sex partners may become common-law spouses in Québec.

A recent amendment to the Civil Code of Québec recognizes a type of domestic partnership called civil union that is similar to common-law marriage and is likewise available to same-sex partners.

Presently, the Government of Canada plans to introduce a bill to Parliament to make statutory marriage equally available to same-sex and opposite-sex couples. This follows upon the decisions of several federal courts that have struck down, within the provincial bounds of their jurisdiction, that portion of the federal Marriage Act which limits statutory marriage to opposite-sex couples. As of March 2005, same-sex marriages, which must be recognised across the country, are legally performed in the provinces of Newfoundland and Labrador, Nova Scotia, Québec, Ontario, Manitoba, Saskatchewan, New Brunswick, British Columbia, and The Yukon Territory.

United Kingdom

The term "common law marriage" is frequently used in England and Wales, however such a "marriage" is not recognised in law, and it does not confer any rights or obligations on the parties. See also English law. Genuine (that is, legal) common-law marriage was for practical purposes abolished under the Marriage Act, 1753. (It survives only in a few highly exceptional circumstances, where people who want to marry but are unable to do so any other way can simply declare that they are taking each other as husband and wife in front of witnesses. British civilians interned by the Japanese during World War II who did so were held to be legally married.)

Under Scots law, there were several forms of "irregular marriage" (including marriage by correspondence), but all but one of them was abolished by 1947. Today, Scotland remains the only European jurisdiction never to have abolished the old style common-law marriage or, as it is known in Scots Law, "marriage by habit and repute". As in the American jurisdictions that have preserved it, this type of marriage can be difficult to prove. It is not enough for the couple to have lived together for several years, but they must have been generally regarded as husband and wife, e.g., their friends and neighbours must have known them as "Mr. and Mrs. So-and-so" (or at least they must have held themselves out to their neighbours and friends as Mr. and Mrs. So-an-so). And, as with American common-law marriages, it is a form of lawful marriage, so that nobody can say they are common-law spouses, or husband and wife by habit and repute, if one of them was legally married to somebody else when the relationship began. 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). See Year 2000 Scottish Survey (http://www.scotland.gov.uk/cru/resfinds/lsf43-00.asp).

United States

All U.S. jurisdictions recognize common-law marriages where they have been validly contracted in another jurisdiction that still permits the common law contract of a marriage. Only a dozen jurisdictions, however, still permit marriages to be contracted in this way. They are: Alabama, Colorado, the District of Columbia, Iowa, Kansas, Montana, Oklahoma, Rhode Island and Providence Plantations, South Carolina, Texas, and Utah. Additionally, New Hampshire recognises common-law marriage solely for probate purposes.

That is, when a party to a common-law marriage dies, the state of New Hampshire will posthumously recognise the marriage to ensure the surviving spouse inherits without any difficulty; but the marriage will not be recognised by the state while the parties are both still living.

In Utah, in the event of common-law marital breakup, the law requires the parties get a declaration of marriage from a court of competent jurisdiction not later than one year after the breakup of the common-law marriage, or the state will not recognise the marriage, e.g., for purposes of hearing disputes over division of marital property in the family court as a divorce question, instead of the civil court as a contract question.

U.S. States that recently abolished the contract of a common-law marriage include: Pennsylvania, September 2003; Georgia, January 1997; Idaho, January 1996; and Ohio, October 1991.

In general, any couple who present themselves as husband and wife will be presumed to be husband and wife until proven otherwise - it's just how people behave. For a couple who contracted their marriage as a common-law marriage, since they can pull out no marriage certificate, there are a number of ways they might be required to prove they have a valid contracted marriage. These vary from jurisdiction to jurisdiction but generally include one or more of the following:

1. The parties hold themselves out to society as husband and wife
   1. This cannot be unintentional or play-acting, but they must also behave as husband and wife when society is not around to see them.
   2. Change of name of one spouse to that of the other (or amalgamation of names, with Mr. Smith and Ms. Jones becoming Mr. and Ms. Smith-Jones), filing of tax returns under "married" status, consistent address of each other as spouses, and so on. The action cannot be inadvertant or caused by others.
2. The parties must mutually consent and have agreed to be presently married
   1. An agreement to be married in the future, i.e., an engagement or a hand-fasting, is generally proof that the parties are NOT married yet.
   2. As in statutory marriage, if either party does not consent to the marriage but is, or feels, coerced into it in some way, then the marriage is not valid.
3. The parties often must cohabit for a specified minimum period of time.
4. Some states require a declaration be made before a judge or filed with the county clerk for the marriage to be recognised.

As noted above, a jurisdiction may permit common-law marriage, but no place allows "common-law divorce." Because an old style common-law marriage is a legally binding marriage, the only way to get out of it is to go to court and file a petition for dissolution of marriage (sometimes called, if archaically so, a bill of divorcement).

In Texas, for example, if a couple do not commence a proceeding to prove their relationship was in fact a real common-law marriage within two years of the end of the relationship, the law decrees and acknowledges the marriage never existed in the first place, and no agreement to be married was ever present. (viz., by virtue of finding the parties never agreed to be married). See Sec. 2.401 of the Texas Family code at Tex. Fam. Code Sec. 2.401 (http://www.capitol.state.tx.us).