Common law marriage allows persons who live together as man and wife for a sufficient time and with the intent of having an exclusive relationship akin to a marriage to have the legal rights of formally married persons. Not all states recognize common law marriages.
Among those states that permit a common-law marriage to be contracted, the elements of a common-law marriage vary slightly from state to state. The necessary elements are (1) cohabitation and (2) "holding out." "Holding out" means that the parties tell the world that they are husband and wife through their conduct, such as the woman's assumption of the man's surname, filing a joint federal income tax return, etc. That means that mere cohabitation can never, by itself, rise to the level of constituting a marriage. Of course, many disputes arise when facts (such as intentions of the parties or statements made to third parties) are in controversy.
Common law marriage is commonly perceived as being created by living together for a certain number of years. However, states generally don't define a number of years of cohabitation for a common law marriage to exist. In order to have a valid common law marriage, there must be proof of all of the following:
- cohabitation for a significant period of time
- hold themselves out as a married couple -- typically this means using the same last name, referring to the other as "my husband" or "my wife" and filing a joint tax return, and
- intent to be married.
In some states, such as Pennsylvania, common law marriage was just another way to create a marriage by exchanging words of present intent, for example vows such as "I take you for my husband." "I take you for my wife." A common law marriage is legally recognized as a marriage and the way to end it is by getting a divorce.
States That Recognize Common Law Marriage
3. District of Columbia
4. Georgia (if created before 1/97)
5. Idaho (if created before 1/96)
9. New Hampshire (for inheritance purposes only)
10. Ohio (if created before 10/91)
12. Pennsylvania (if created before 1/05)
13. Rhode Island
14. South Carolina