Common Law Marriage in the United States

Does any state in the United States recognize common law marriage?[1]  The answer to this question is somewhat complex.

  1. Colorado,[2] Iowa,[3] Kansas,[4] Montana,[5] Oklahoma,[6] Rhode Island,[7] South Carolina,[8] Texas,[9] and the District of Columbia[10] recognize common law marriages regardless of when they were contracted.
  2. Utah legalized common law marriage in 1987, but also accords validity to common law marriages initiated before, and continued through, that date.[11] However, the state does not recognize any common law marriage that both started and ended before 1987.[12]
  3. New Hampshire only recognizes common law marriages for purposes of inheritance, and accords them no validity in other contexts (e.g., divorce law).[13]
  4. The following states each abolished common law marriage on a specified date, but still recognize any such marriage contracted before that date.

State Abolition Date
Alabama January 1, 2017[14]
Florida January 1, 1968[15]
Georgia January 1, 1997[16]
Idaho January 1, 1996[17]
Illinois June 30, 1905[18]
Indiana January 1, 1958[19]
Michigan January 1, 1957[20]
Minnesota April 26, 1941[21]
Mississippi April 5, 1956[22]
Nebraska 1923[23]
Nevada March 29, 1943[24]
New Jersey December 1, 1939[25]
New York April 29, 1933[26]
Ohio October 10, 1991[27]
Pennsylvania January 1, 2005[28]
South Dakota July 1, 1959[29]
  1. The remaining states do not recognize common law marriage.[30]

 

[1] I am referring to common law marriages performed in-state.  Even a state that voids in-state common law marriages may still recognize common law marriages contracted in other states.  See, e.g., Smith v. Mangum, 155 Ariz. 448, 450 n.1 (Ct. App. 1987) (“Arizona does not recognize a common law marriage unless it was entered into in a state that authorizes common law marriages.”); Farah v. Farah, 429 SE 2d 626, 629 (Va. Ct. App. 1993) (citation omitted) (“Virginia does not recognize common-law marriages where the relationship is created in Virginia. Virginia does recognize a common-law marriage that is valid under the laws of the jurisdiction where the common-law relationship was created.”).

[2] See Colo. Rev. Stat. § 14-2-109.5 (2016) (imposing certain conditions on common law marriage); People v. Lucero, 747 P.2d 660, 663 (Colo. 1987) (quoting Klipfel’s Estate v. Klipfel, 92 P.26, 28 (Colo. 1907) (quoting Taylor v. Taylor, 10 Colo.App. 303, 305 (1897))) (“[I]n this state a marriage simply by agreement of the parties, followed by cohabitation as husband and wife, and such other attendant circumstances as are necessary to constitute what is termed a common-law marriage, may be valid and binding.”).

[3] See In re Estate of Fisher, 176 N.W.2d 801, 804 (Iowa 1970) (“Iowa has recognized common-law marriage for well over a century.”); In re Stopp’s Estate, 57 N.W.2d 221, 222 (Iowa 1953) (“[W]e are not persuaded common-law marriages have never been recognized in Iowa, or that if they have been our previous decisions should be overruled.”).

[4] See Kan. Stat. Ann. § 23-2502 (2015) (“The state of Kansas shall not recognize a common-law marriage contract if either party to the marriage contract is under 18 years of age.”); Anguiano v. Larry’s Electrical Contracting, 241 P.3d 175, 178 (Kan. Ct. App. 2010) (“To establish a common-law marriage in Kansas, a plaintiff must prove (1) capacity of the parties to marry; (2) a present marriage agreement between the parties; and (3) a holding out to the public as husband and wife.”).

[5] See Mont. Code Ann. § 40-1-403 (2015) (“Common-law marriages are not invalidated by this chapter.”); In re Estate of Ober, 62 P.3d 1114, 1115 (Mont. 2003) (“The State of Montana recognizes common-law marriages.”).

[6] See Davis v. State, 103 P.3d 70, 82 (Okla. Crim. App. 2004) (“To establish a valid common law marriage, there must be evidence of an actual mutual agreement between the spouses to be husband and wife, a permanent relationship, an exclusive relationship — proved by cohabitation as man and wife, and the parties to the marriage must hold themselves out publicly as man and wife.”).

[7] See Sardonis v. Sardonis, 261 A.2d 22, 24 (R.I. 1970) (citation omitted) (“[R]espondent attacks the trial justice’s finding that he and petitioner were validly married at common law. Such a marriage has long been recognized in this state.”).

[8] See S.C. Code Ann. § 20-1-360 (2016) (“Nothing contained in this article shall render illegal any marriage contracted without the issuance of a license.”); State v. Ward, 204 S.C. 210, 216 (1944) (“A common-law marriage is valid in this State . . . . [S]uch marriage is not void because the formalities prescribed by statute concerning the procurement of a license and solemnization, have not been observed.”).

[9] See Tex. Fam. Code Ann. § 2.401(2) (2015) (“[T]he marriage of a man and woman may be proved by evidence that . . . the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.”); Russell v. Russell, 865 S.W.2d 929, 931 (Tex. 1993) (citation omitted) (“Common law marriages have been recognized in Texas since 1847. From this beginning, Texas has rejected the necessity of ritual formalities to establish the marriage relationship.”); Collora v. Navarro, 574 S.W.2d 65, 68 (Tex. 1978) (citations omitted) (“The validity of the common-law marriage has always been recognized in Texas. It is authorized by statute.”).

[10] See Coates v. Watts, 622 A.2d 25, 27 (D.C. 1993) (“The District of Columbia has long recognized common law marriages.”); Hoage v. Murch Bros. Const. Co., 50 F.2d 983, 986 (D.C. Cir. 1931) (“[T]he decision of the lower court that common-law marriages in the District are invalid is not supported by law, and is wrong.”).

[11] See Utah Code § 30-1-4.5(1) (2016) (“A marriage which is not solemnized according to this chapter shall be legal and valid . . . .”); Whyte v. Blair, 885 P.2d 791, 793 n.2 (Utah 1994) (noting that prior decisions “considered the validity of a common law marriage in Utah prior to 1987. Because such marriages were prohibited prior to 1987, they were not valid. By contrast, in the present case the relationship that possibly establishes a common law marriage existed well after 1987.”); Bunch v. Englehorn, 906 P.2d 918, 920 n.2 (Utah Ct. App. 1995) (“[R]elationships that began and ended prior to 1987 were not valid, since common-law marriages were not recognized in Utah prior to the enactment of section 30-1-4.5. Because the parties’ relationship indisputably lasted beyond 1987, the statute could apply in the present case.”).

[12] See Layton v. Layton, 777 P.2d 504, 505 (Utah Ct. App. 1989) (footnote omitted) (“The complaint in this case was filed in 1983, about four years before section 30-1-4.5 was enacted. . . . [T]hat section . . . has only prospective, and not retroactive, effect. Thus, the trial court mischaracterized the Laytons’ relationship as a marriage.”).

[13] See N.H. Rev. Stat. Ann. § 457:39 (2016) (“Persons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for the period of 3 years, and until the decease of one of them, shall thereafter be deemed to have been legally married.”); S. v. S., 121 N.H. 96 (1981) (denying a petition for alimony and child support because “the status of ‘common law’ spouse obtains only as to the survivor of two people who” complied with this provision.).

[14] Mattison v. Kirk, 497 So.2d 120, 122 (Ala. 1986) (citations omitted) (“Common law marriages are valid in Alabama, and are co-equal with ceremonial marriages.”); H.B. 332, Reg. Sess. § 1(a) (Ala. 2016) (enacted) (“No common-law marriage may be entered into in this state on or after January 1, 2017.”); id. § 1(b) (“An otherwise valid common-law marriage entered into before January 1, 2017, shall continue to be valid in this state.”).

[15] Fla. Stat. § 741.211 (2016) (“No common-law marriage entered into after January 1, 1968, shall be valid”); Williams v. Dade County, 237 So.2d 776, 777 n.1 (Fla. Dist. Ct. App. 1970) (“Common law marriages are recognized in this state if their inception is prior to January 1, 1968.”).

[16] Ga. Code Ann. § 19-3-1.1 (2015) (“No common-law marriage shall be entered into in this state on or after January 1, 1997. Otherwise valid common-law marriages entered into prior to January 1, 1997 . . . shall continue to be recognized in this state.”); King v. Lusk, 633 S.E.2d 350, 353 (Ga. Ct. App. 2006) (“Although common-law marriages entered into on or after January 1, 1997, are not recognized in Georgia, common-law marriages entered into prior to January 1, 1997, are not affected and continue to be recognized. The period of Lusk and Herron-King’s relationship began years before 1997.”).

[17] Idaho Code § 32-201(2) (2015) (“The provisions . . . requiring the issuance of a license and a solemnization shall not invalidate any marriage contract in effect prior to January 1, 1996, created by consenting parties through a mutual assumption of marital rights, duties or obligations.”); id. § 32-301 (“On and after January 1, 1996, any marriage contracted or entered into in violation of the provisions of this title shall be void.”); Wilkins v. Wilkins, 48 P.3d 644, 649 (Idaho 2002) (“Common law marriages were recognized in Idaho prior to January 1, 1996. . . . [A] valid common law marriage may not be formed after that date.”); Metro. Life Ins. Co. v. Johnson, 645 P.2d 356, 359 (Idaho 1982) (“We note that Idaho is among the dwindling minority of states which continue to recognize common law marriage.”).

[18] 750 Ill. Comp. Stat. 5/214 (2016) (“Common law marriages contracted in this State after June 30, 1905 are invalid.”).

[19] Ind. Code § 31-11-8-5 (2015) (“A marriage is void if the marriage is a common law marriage that was entered into after January 1, 1958.”); In re Estate of Parrish, 293 N.E.2d 62, 63 (Ind. Ct. App. 1973) (noting that this “statute . . . became effective January 1, 1958. Thus, in the instant case the defendant, as proponent of the common law marriage, had to establish that such marriage existed prior to the effective date of the statute.”).

[20] Mich. Comp. Laws § 551.2 (2016) (“Consent alone is not enough to effectuate a legal marriage on and after January 1, 1957.”); Tigner v. Tigner, 90 Mich. App. 787, 789 (1979) (“Although MCL 551.2; MSA 25.2 invalidated common-law marriages entered into on or after January 1, 1957, this in no way affects the validity of a valid common-law marriage entered into before that date.”).

[21] Minn. Stat. § 517.01 (2015) (“A lawful civil marriage may be contracted only when a license has been obtained . . . and when the civil marriage is contracted in the presence of two witnesses and solemnized  . . . . Marriages subsequent to April 26, 1941, not so contracted shall be null and void.”).

[22] Miss. Code. § 93-1-15(2) (2015) (“Nothing contained in this section shall be construed to affect the validity of any marriage, either ceremonial or common law, contracted prior to April 5, 1956.”); Pickens v. Pickens, 490 So.2d 872, 875 (Miss. 1986) (“Cohabitation which had not ripened into a common law marriage prior to April 5, 1956, is wholly ineffective to vest marital rights in either party thereto.”).

[23] Neb. Rev. Stat. § 42-104 (2016) (“No marriage hereafter contracted shall be recognized as valid unless such license has been previously obtained and used within one year from the date of issuance and unless such marriage is solemnized by a person authorized by law to solemnize marriages.”); Bourelle v. Soo-Crete, 87 N.W.2d 371, 376 (Neb. 1958) (“A common-law marriage is not valid in this state unless entered into prior to the adoption of section 42-104, R.R.S. 1943, in 1923.”).

[24] Nev. Rev. Stat. § 122.010(2) (2016) (“The provisions of subsection 1 requiring solemnization shall not invalidate any marriage contract in effect prior to March 29, 1943, to which the consent only of the parties capable in law of contracting the contract was essential.”).

[25] N.J. Stat. § 37:1-10 (2015) (“Nothing in this chapter shall be deemed or taken to render any common law or other marriage, otherwise lawful, contracted before December first, nineteen hundred and thirty-nine, invalid by reason of the failure to take out a license as herein provided.”).

[26] In re Benjamin, 34 N.Y.2d 27, 30 (1974) (citation omitted) (“Although common-law marriages were abolished in New York on April 29, 1933, common-law marriages contracted by competent parties prior to that date are recognized and remain valid.”); People v. Massaro, 288 N.Y. 211, 215 (1942) (“a common law marriage . . . if contracted before April 29, 1933 . . . is just as valid as a solemnized marriage.”).

[27] Ohio Rev. Code § 3105.12(B) (2016) (“On and after October 10, 1991 . . . common law marriages are prohibited in this state . . . . Common law marriages that occurred in this state prior to October 10, 1991 . . . remain valid on and after October 10, 1991.”); State v. Phelps, 100 Ohio App.3d 187, 192 (1995) (“Common-law marriages that occurred prior to October 10, 1991 remain valid unless terminated by death, divorce, dissolution of marriage, or annulment.”).

[28] 23 Pa. Cons. Stat. § 1103 (2016) (“No common-law marriage contracted after January 1, 2005, shall be valid. Nothing in this part shall be deemed or taken to render any common-law marriage otherwise lawful and contracted on or before January 1, 2005, invalid.”); Moser v. Renninger, 40 A.3d 156, 159 n.2 (Pa. Super. Ct. 2012) (“Wife alleged the parties entered into a common-law marriage on June 8, 1985, and therefore, the plain language of the amended statute does not prohibit a lawful common-law marriage in the case sub judice.”).

[29] S.D. Codified Laws § 25-1-29 (2016) (“Marriage must be solemnized, authenticated, and recorded as provided in this chapter provided, however, that noncompliance with its provisions does not invalidate any lawful marriage consented to and subsequently consummated prior to July 1, 1959.”); In re Estate of Miller, 243 N.W.2d 788 (S.D. 1976) (affirming common law marriage contracted before 1959).

[30] See Patty Funaro, Leg. Serv. Agency, Legislative Guide to Marriage Law 11, 34-41 (2005).

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