Common-law marriage

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Common-law marriage (sometimes spelled without a hyphen), and also known as sui juris marriage, informal marriage or marriage by habit and repute, is an irregular form of marriage that can be legally contracted in an extremely limited number of jurisdictions.

The original concept of a common-law marriage is a marriage that is considered valid by both partners, but has not been formally registered with a state or church registry, or a formal religious service. In effect, the act of the couple representing themselves to others as being married acts as the evidence that they are married. In jurisdictions recognizing common-law marriages, such a marriage is not legally distinct from a traditional ceremonial marriage enacted through a civil or religious ceremony in terms of the couple's rights and obligations to one another.

The term "common-law marriage" is sometimes also used as a synonym for legal agreements including domestic partnerships, reciprocal beneficiaries relationships and non-marital relationship contracts. In these cases, two people live together without considering themselves each other's spouses, but do still create a legal agreement to manage their relationship, obligations to one another or shared assets. In some cases, such partnerships may be created because the couples do not have the ability to marry one another legally. "Common-law marriage" is also often used colloquially or by the media to refer to cohabiting couples, regardless of any rights that these couples may have, which can create public confusion both in regard to the term and in regard to the rights of unmarried partners. [1]

Non-marital relationship contracts are not necessarily recognized from one jurisdiction to another, whereas common-law marriages are legally valid marriages worldwide if the parties complied with the requirements to form a valid marriage while living in a jurisdiction that allows this form of marriage to be contracted. In some cases, traditional common-law or Sui juris marriages may be recognized as one of these other interpersonal relationships in foreign jurisdictions, especially if the parties are not able to prove that they conformed to the requirements to contract a common-law marriage in their home jurisdiction.[2]

The concept of common-law marriages originates from the common law of the English and American legal systems. However, registration of a marriage in order for it to be considered legitimate is a requirement of a large and growing number of jurisdictions.

Terminology[edit]

The term common-law marriage is often used incorrectly to describe various types of domestic partnerships or to refer to cohabiting couples. Although these interpersonal statuses are often called "common-law marriage" they differ from true common law marriage in that they are not legally recognized as "marriages" but are a parallel interpersonal status, known in most jurisdictions as "domestic partnership", "registered partnership", "conjugal union", "civil union", etc. In Canada, for instance, the term "common-law marriage" is widely used to describe cohabiting relationships; while these do grant couples many of the rights and responsibilities of a marriage (laws vary by province), these are not marriages; couples in common-law partnerships are not legally considered married, although for many purposes (such as taxes, financial claims, etc.) they are treated as if they were.[3][4] Similarly, the term "common-law marriage" is used in England and Australia to describe de facto relationships. A de facto relationship is not a common-law marriage.

A true common-law marriage is a fully legal marriage that has been contracted in an irregular way. In the United States, nine states and the District of Columbia permit this irregular form of marriage. People in these true common-law marriages are considered legally married for all purposes and in all circumstances.

Essential distinctions from statutory marriage[edit]

Common law and statutory marriage have the following characteristics in common:

  1. Both parties must freely consent to the marriage
  2. Both parties must be of legal age to contract a marriage or have parental consent to marry
  3. Neither party may be under a disability that prevents him or her from entering into a valid marriage - e.g. they must both be of sound mind, neither of them can be currently married, and some jurisdictions do not permit prisoners to marry.

Otherwise, common law marriage differs from statutory marriage as follows:

  1. There is no marriage license issued by a government and no marriage certificate filed with a government
  2. There is no formal ceremony to solemnize the marriage before witnesses
  3. The parties must hold themselves out to the world as husband and wife (this is not a requirement of statutory marriage)
  4. Most jurisdictions require the parties to be cohabiting at the time the common law marriage is formed. Some require cohabitation to last a certain length of time (e.g. three years) for the marriage to be valid. But cohabitation alone does not create a marriage. The parties must intend their relationship to be, and to be regarded as, a legally valid marriage.

History[edit]

In ancient Greek and Roman civilization, marriages were private agreements between individuals and families. Community recognition of a marriage was largely what qualified it as a marriage. The state had only limited interests in assessing the legitimacy of marriages. Normally civil and religious officials took no part in marriage ceremonies, nor did they keep registries. There were several more or less formal ceremonies to choose from (partly interchangeable, but sometimes with different legal ramifications) as well as informal arrangements. It was relatively common for couples to cohabit with no ceremony; cohabiting for a moderate period of time was sufficient to make it a marriage. Cohabiting for the purpose of marriage carried with it no social stigma.[citation needed]

In medieval Europe, marriage came under the jurisdiction of canon law, which recognized as a valid marriage one where the parties stated that they took one another as wife and husband, even in absence of any witnesses.[citation needed]

The Catholic Church forbade clandestine marriage at the Fourth Lateran Council (1215), which required all marriages to be announced in a church by a priest. The Council of Trent (1545–1563) introduced more specific requirements, ruling that in the future a marriage would be valid only if witnessed by the pastor of the parish or the local ordinary (i.e., the bishop of the diocese), or by the delegate of one of said witnesses, the marriage being invalid otherwise, even if witnessed by a Catholic priest. The Tridentine canons did not bind the Protestants or the Eastern Orthodox, but clandestine marriage was impossible for the latter, since marriage required the presence of a priest for validity. England abolished clandestine or common law marriages in the Marriage Act 1753,[citation needed] requiring marriages to be performed by a priest of the Church of England unless the participants in the marriage were Jews or Quakers. The Act applied to Wales. The Act did not apply to Scotland because by the Acts of Union 1707 Scotland retained its own legal system. To get around the requirements of the Marriage Act, such as minimum age requirements, couples would go to Gretna Green, in southern Scotland, to get married under Scots law.

Marriages by Per Verba De Praesenti, sometimes known as common law marriages, were an agreement to marry, rather than a marriage.[5]

The Marriage Act of 1753 also did not apply to Britain's overseas colonies of the time, so common law marriages continued to be recognized in the future United States and Canada. In the United States, common law marriage can still be contracted in Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah, the District of Columbia,[6] or under military law.[7] Except for same-sex interpersonal unions contracted by habit and repute, all jurisdictions recognize common law marriages that were validly contracted in the originating jurisdiction, because they are valid marriages in the jurisdiction where they were contracted.

All other European jurisdictions having long abolished "marriage by habit and repute", Scotland became the last to do so in 2006.[8]

Legislation[edit]

Australia[edit]

In Australia the term de facto relationship is often used to refer to relationships between any two persons who are not married but are effectively living in certain domestic circumstances. Since March 1, 2009 de facto relationships have been recognized in the Family Law Act for participating states that conferred their power on de facto couples to the federal jurisdiction. For limitations on recognition of de facto couples outside of Australia see Section 51(xxxvii) of the Australian Constitution. For states that have not conferred their power over de facto couples the state legislation is still valid. The legal term for such relationships varies by state and territory (however common law marriage is not used anywhere in Australia):

State Name Law
New South Wales "Domestic relationship", encompassing "de facto relationships" and "close personal relationships" Property (Relationships) Act 1984
Victoria "Domestic relationship", defined to mean "de facto relationships" Property Law Act 1958 Part IX
Queensland "De facto relationship" Property Law Act 1974
South Australia "Close personal relationship" Domestic Partners Property Act 1996
Western Australia "De facto relationship" Family Court Act 1997, Part 5A
Tasmania "Personal relationship", encompassing "significant relationships" and "caring relationships" Relationships Act 2003
Australian Capital Territory "Domestic relationship" and "domestic partnership" Domestic Relationships Act 1994, Legislation Act 2001 s 169
Northern Territory "De facto relationship" De Facto Relationships Act 1991

Although property aspects of these relationships are dealt with under state law, the law relating to children of such relationships is contained in the federal Family Law Act 1975. Most laws dealing with taxation, social welfare, pensions, etc., treat de facto marriages in the same manner as solemnized marriages.

The Family Law Act states that a de facto relationship can exist between two people of different or the same sex and that a person can be in a de facto relationship even if legally married to another person or in a de facto relationship with someone else. Family property laws however, are excepted from jurisdiction when a person is both married and in a de facto relationship at the same time. This exception is due to federal polygamy laws. Same-sex de facto relationships have been recognized in New South Wales since 1999. There are a number of methods by which these relationships are recognized in Australian law and they include the same entitlements as "Christian" marriage.

The federal Marriage Act 1961 provides for marriage, but does not recognize 'common law marriages'. During the term of the former Howard government, the Parliament of Australia defined marriage as being between a man and a woman. This allowed for the overriding of marriage laws instituted in the Act but did not impinge on the legal standing of de facto relationships.

Canada[edit]

In Canada, the legal definition and regulation of common law relationships fall under provincial jurisdiction. With the exception of Saskatchewan, a couple must meet the requirements of their province's "capacity to marry" within the Marriage Act for their common law relationship to be legally recognized under civil jurisdiction. Saskatchewan does allow married persons to have same time multiple recognized partners when one conjugal union is a civil marriage and the other conjugal union is a common law relationship (at the same time).

Citizenship & Immigration Canada states that a Common-law partner refers to a person who is living in a conjugal relationship with another person (opposite or same sex), and has done so continuously for a period of at least one year. [9] A conjugal relationship exists when there is a significant degree of commitment between two people. This can be shown with evidence that the couple share the same home, that they support each other financially and emotionally, that they have children together, or that they present themselves in public as a couple. Common-law partners who are unable to live together or appear in public together because of legal restrictions in their home country or who have been separated for reasons beyond their control (for example, civil war or armed conflict) may still qualify and should be included on an application.

Canada Revenue Agency states, as of 2007, a common law relationship is true if at least one[citation needed] of the following applies: [10]

  1. the couple has been living in a conjugal relationship for at least 12 continuous months;
  2. the couple are parents of a child by birth or adoption;[citation needed] or
  3. one of the couple has custody and control of the other partner's child (or had custody and control immediately before the child turned 19 years of age) and the child is wholly dependent on that person for support.

For a full, up to date CRA description go here: Marital Status

In many cases common law couples have the same rights as married couples under federal law. Various federal laws include "common law status," which automatically takes effect once two people (of any gender) have lived together in a conjugal relationship for five full years. Common law partners may be eligible for various federal government spousal benefits. As family law varies between provinces, there are differences between the provinces regarding the recognition of common law relationship. No province, other than Saskatchewan, sanctions married persons to be capable in family law of having more than one recognized partner at the same time.

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. In Saskatchewan, Queen's Bench justices have sanctioned common law relationships as simultaneously existing in Family law while one or more of the spouses were also civilly married to others.

Ontario[edit]

In Ontario, the Ontario Family Law Act specifically recognizes common law spouses in §29, dealing with spousal support issues; the requirements are living together for no less than three years[11] or having a child in common and having "cohabited in a relationship of some permanence". The three years must be continuous, although a breakup of a few days during the period will not affect a person's status as common law. The law apparently doesn't require both parties to give informed consent to incurring responsibilities to another's debts, or losing control over one's wealth.

No married person may become eligible to begin the three-year countdown to have a recognized common law spouse until divorce from the first spouse occurs. However, the part that deals with marital property excludes common law spouses, as §2 defines spouses as those who are married together or who entered into a void or voidable marriage in good faith. "Good faith" in a voidable marriage cannot occur if one or more of the persons are already married to another. 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.

Quebec[edit]

The Civil Code of Quebec has never recognized a common law partnership as a form of marriage. However, many laws in Quebec explicitly apply to common law partners (called conjoints de fait) in "de facto unions" (marriages being "de jure unions"), as they do to marriage spouses.[12] Same-sex partners are also recognized as "conjoints de fait" in de facto unions, for the purpose of social benefit laws.[13] However, common law partners do not have any legal rights between them, such as alimony, family patrimony, compensatory allowance and matrimonial regime. The Quebec Court of Appeal ruled this restriction to be unconstitutional in 2010; and on January 25, 2013 the Supreme Court of Canada ruled that common law couples do not have the same rights as married couple .[14]

A 2002 amendment to the Civil Code recognizes a type of domestic partnership called a civil union that is similar to marriage and is likewise available to same-sex partners.

Further information: Civil unions in Quebec

No citizen of Quebec can be recognized under family law to be in both a civilly married state and a "conjoints de fait" within the same time frame. Divorce from one conjugal relationship must occur before another conjugal relationship may occur in family law.

Same-sex partners can also marry legally in Quebec, as elsewhere in Canada.

Other provinces[edit]

The requirements in some other provinces are as follows:

  • In British Columbia, a person who has lived and cohabited with another person, for a period of at least two years is considered a common law spouse, unless one or both of them were married to another person during this time, according to the "Estate Administration Act".[15] This creates an automatic right to wealth or property accumulated, and will also make each spouse automatically responsible for half the other’s debt, whether they helped incur it or not.[16]
  • In Nova Scotia, a couple must cohabit for two years in a marriage-like relationship, and may not have been married to another person during this time.
  • In New Brunswick, a couple must live together for three years or have a natural or adopted child together. They cannot have been married to another person during this time.[17]
  • In Alberta, common law relationships have been subsumed since 2003 under the terms of the Adult Interdependent Relationship Act,[18] which may additionally apply to any two unrelated people living together in a mutually dependent relationship for three years. Only one interdependent relationship is allowed at a time. In the event either of the common law spouses are married to other persons during this time, neither of the common law couple can begin to be "interdependent" until divorce from other spouses occurs.

United Kingdom[edit]

See also Living Together as Husband and Wife

England and Wales[edit]

The term "common law marriage" has been used in England and Wales to refer to unmarried, cohabiting heterosexual relationships.[19] However, this is merely a social usage. The term does not confer on cohabiting parties any of the rights or obligations enjoyed by spouses or civil partners. Unmarried partners are recognized for certain purposes in legislation: e.g., for means-tested benefits. For example, in the Jobseekers Act 1995, "unmarried couple" was defined as a man and woman who are not married to each other but who are living together in the same household as husband and wife other than in prescribed circumstances. But in many areas of the law cohabitants enjoy no special rights. Thus when a cohabiting relationship ends ownership of any assets will be decided by property law. The courts have no discretion to reallocate assets, as occurs on divorce.

It is sometimes mistakenly claimed[20] that before the Marriage Act 1753 cohabiting couples would enjoy the protection of a "common law marriage". In fact, neither the name nor the concept of "common law marriage" was known at this time.[19] Far from being treated as if they were married, couples known to be cohabiting risked prosecution by the church courts for fornication.[21]

It is equally mistakenly claimed that couples who lived together without undergoing a marriage ceremony before the Marriage Act 1753 would be presumed to have undertaken a "contract marriage" by mutual consent. However, contract marriages (or more strictly contracts per verba de praesenti), were not understood as having the legal status of a valid marriage until the decision in Dalrymple in 1811.[22] This decision had an impact on the subsequent development of English law due to the fact that the Marriage Act 1753 did not apply overseas. English courts later held that it was possible to marry by a simple exchange of consent in the colonies although most of the disputed ceremonies involved the ministrations of a priest or other clergyman.

The English courts also upheld marriages by consent in territories not under British control but only if it had been impossible for the parties to marry according to the requirements of the local law.[23] The late 1950s and early 1960s saw a spate of cases arising out of the Second World War, with marriages in prisoner-of-war camps in German-occupied Europe posing a particular problem for judges.[19] (Some British civilians interned by the Japanese during the Second World War were held to be legally married after contracting marriages under circumstances where the formal requirements could not be met.) To this limited extent, English law does recognize what has become known as a "common law marriage". English legal texts initially used the term to refer exclusively to American common law marriages.[19] Only in the 1960s did the term "common law marriage" begin to be used in its contemporary sense to denote unmarried, cohabiting heterosexual relationships[24] and not until the 1970s and 1980s did the term begin to lose its negative connotations.[24] The use of the term is likely to have encouraged cohabiting couples to believe falsely that they enjoyed legal rights. By the end of the 1970s a myth had emerged that marrying made little difference to one’s legal rights, and this fuelled the subsequent increase in the number of couples living together and having children together outside marriage.[25]

Scotland[edit]

Main article: Marriage in Scotland

Under Scots law, there have been several forms of "irregular marriage", among them:

  1. Irregular marriage by declaration de presenti—declaring in the presence of two witnesses that one takes someone as one's wife or husband.
  2. Irregular marriage conditional on consummation.
  3. Marriage contracted by correspondence.
  4. Irregular marriage by cohabitation with habit and repute.

The Marriage (Scotland) Act 1939 provided that the first three forms of irregular marriage could not be formed on or after 1 January 1940. However, any irregular marriages contracted prior to 1940 can still be upheld. This act also allowed the creation of regular civil marriages in Scotland for the first time. (The civil-registration system started in Scotland on 1 January 1855.)

Until this act, the only regular marriage available in Scotland was a religious marriage. Irregular marriages were not socially accepted and many people who decided to contract them did so where they were relatively unknown. In some years up to 60% of the marriages in the Blythswood Registration District of Glasgow were "irregular".

In 2006, "marriage by cohabitation with habit and repute", the last form of irregular marriage that could still be contracted in Scotland, was abolished in the Family Law (Scotland) Act 2006. Until that act had come into force, Scotland remained the only European jurisdiction never to have totally abolished the old-style common law marriage. For this law to apply, the minimum time the couple have lived together continuously had to exceed 20 days.

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. Their friends and neighbors, for example, must have known them as Mr. and Mrs. So-and-so (or at least they must have held themselves out to their neighbors and friends as Mr. and Mrs. So-and-so). Also, like American common law marriages, it is a form of lawful marriage, so that people cannot be common law spouses, or husband and wife by cohabitation with 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 American legal thought and English colloquial usage that, in a study conducted by the Scottish Executive in 2000, 57% of Scots surveyed believed that couples who merely live together have a "common law marriage". In fact, that term is unknown in Scots law, which uses "marriage by cohabitation with habit and repute". "Common law marriage" is an American term.

Otherwise, men and women who otherwise behave as husband and wife do not have a common law marriage or a marriage by habit and repute merely because they set up housekeeping together, but they must hold themselves out to the world as husband and wife. (In many jurisdictions, they must do so for a certain length of time for the marriage to be valid.) The Scottish Survey is not clear on these points.[26] It notes that "common law marriage" is not part of Scots law, but it fails to note that "marriage by cohabitation with habit and repute", which is the same thing but in name, was part of Scots law until 2006.

United States[edit]

Common-law marriages can certainly be contracted in nine states (Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, and Utah) and the District of Columbia. The legal status of common-law marriages in Oklahoma is much controverted but as of February 19, 2014, several Oklahoma executive agencies continue to represent it as legal,[27] and a reputed ban in 2010 cannot be found in its statutes.[28] New Hampshire recognizes common-law marriage for purposes of probate only, and Utah recognizes common-law marriages only if they have been validated by a court or administrative order.[29] Otherwise, common-law marriages can no longer be contracted in any of the other states. All states, however, recognize common-law marriages that were validly contracted in other states, under the full faith and credit clause of the U.S. Constitution, principles of comity and their rules for choice of law and conflict of laws. In California, for example, a marriage validly contracted in another jurisdiction is valid even if it could not be legally contracted within California; and a marriage that is not validly contracted in another U.S. jurisdiction is not valid in California, even if it could have been legally contracted in that state. The only exceptions to this rule, in many states, are polygamous marriages, same-sex marriages (only in some states), and any other marriages that are deemed "odious to public policy". The requirements for a common-law marriage to be validly contracted differ from state to state and among Native American tribes. The Navajo Nation, for example, permits common-law marriage and allows its members to marry through tribal ceremonial processes and traditional processes.[30]

English-speaking Caribbean[edit]

Due to their colonial past, the islands of the English-speaking Caribbean have similar statutes concerning common law marriage to those in England. However, in the Caribbean, the term "common law" marriage is also widely described, by custom as much as by law, to any long term relationship between male and female partners. Indeed, such informal unions are widespread, making up a significant percentage of the families many of which have children and indeed may last for many years. The reasons for these informal but durable units is a matter of considerable debate in sociological literature. Likewise although the acceptance of this type of union varies, men being more inclined to consider them as legitimate than women, there is a high degree of recognition of such unions that they amount to an institution.[31][32]

See also[edit]

References[edit]

  1. ^ http://www.parliament.uk/briefing-papers/sn03372
  2. ^ "Common Law Marriage FAQ." Nolo. July 31, 2009. http://www.nolo.com/article.cfm/objectID/709FAEE4-ABEA-4E17-BA34836388313A3C/118/304/192/FAQ/
  3. ^ http://www.court.nl.ca/supreme/family/faq.html#Q13
  4. ^ http://www.commonlawrelationships.ca/
  5. ^ "The Misunderstood Contract Per Verba De Praesenti". Rebecca Probert, University of Warwick,School of Law. 
  6. ^ "Marriage Laws of the Fifty States, District of Columbia and Puerto Rico". Wex. Legal Information Institute. Retrieved 24 July 2009. 
  7. ^ U.S. v. Juillerat, 2000, MacDill AFB. A ceremonial marriage had been declared invalid by the state because it was not filed as required by law, but the marriage became valid under military law (the parties were not residents of a common law marriage state).
  8. ^ "Abolition of marriage by cohabitation with habit and repute". Family Law(Scotland) Act 2006. UK Statute Law Database. Retrieved 30 April 2011. 
  9. ^ "Citizenship and Immigration Canada". Citizenship and Immigration Canada. Retrieved 19 October 2013. 
  10. ^ http://www.cra-arc.gc.ca/bnfts/mrtl/menu-eng.html
  11. ^ "Definitions". Family Law Act, R.S.O. 1990, c. F.3. Canadian Legal Information Institute. 20 July 2009. Retrieved 24 July 2009. 
  12. ^ De Facto Unions, Justice Québec
  13. ^ "L'union de fait: votre couple et la loi", Réseau juridique du Québec
  14. ^ "'Canada top court: Quebec common law couples do not have rights of married couples". [JURIST Legal News & Research], January 25, 2012.
  15. ^ "Definition of Spouse Amendment Act, 1999"
  16. ^ BC's new law erases line between marriage and common-law by Niko Bell of Xtra February 14, 2013
  17. ^ http://www.cic.gc.ca/english/sponsor/familymembers.html#common[dead link]
  18. ^ http://www.canlii.org/en/ab/laws/stat/sa-2002-c-a-4.5/latest/sa-2002-c-a-4.5.html
  19. ^ a b c d Probert, R., Common Law Marriage: Myths and Misunderstandings, Child & Family Law Quarterly vol.20 issue 1 p.1
  20. ^ Barlow, A., Duncan, S., James, G., and Park, A., (2005) Cohabitation, Marriage and the Law: Social Change and Legal Reform in the 21st Century (Oxford, Hart), p.53
  21. ^ Probert, R. (2012) The Legal Regulation of Cohabitation, 1600–2012: From Fornicators to Family (Cambridge: Cambridge University Press), ch. 2.
  22. ^ Dalrymple v Dalrymple (1811) 2 Hag. Con. 54; 161 ER 665
  23. ^ See, e.g., the case of Phillips v Phillips (1921) 38 TLR 150
  24. ^ a b Ibidem
  25. ^ Probert, R. (2012) The Legal Regulation of Cohabitation, 1600–2012: From Fornicators to Family (Cambridge: Cambridge University Press), chs. 7 and 8.
  26. ^ "Family formation and dissolution: Trends and attitudes among the Scottish population" on the Scottish government website
  27. ^ For example, the Department of Corrections and the Tax Commission
  28. ^ Oklahoma Statutes
  29. ^ http://www.law.cornell.edu/wex/table_marriage
  30. ^ Lopez, Antoinette Sedillo (2000). "Evolving Indigenous Law: Navajo Marriage—Cultural Traditions and Modern Challenges". Arizona Journal of International and Comparative Law 17 (2): 283–307. 
  31. ^ Hyman Rodman, "Illegitimacy in the Caribbean Social Structure: A Reconsideration," American Sociological Review 31 (1966): 673–83.
  32. ^ Benjamin Schlesinger, "Family Patterns in the English-Speaking Caribbean," Journal of Marriage and Family 30 (1968): 49–54.

External links[edit]