|Marriage and other
equivalent or similar unions and status
|Validity of marriages|
|Dissolution of marriages|
|Private international law|
|Family and criminal code
(or criminal law)
Common-law marriage, also known as sui iuris marriage, informal marriage, marriage by habit and repute, or marriage in fact, is a legal framework in a limited number of jurisdictions where a couple is legally considered married, without that couple having formally registered their relation as a civil or religious marriage. The original concept of a "common-law marriage" is a marriage that is considered valid by both partners, but has not been formally recorded with a state or religious registry, or celebrated in a formal religious service. In effect, the act of the couple representing themselves to others as being married, and organizing their relation as if they were married, acts as the evidence that they are married.
The term common-law marriage has wide informal use, often to denote relations that are not legally recognized as common-law marriages. The term common-law marriage is often used colloquially or by the media to refer to cohabiting couples, regardless of any legal rights that these couples may or may not have, which can create public confusion both in regard to the term and in regard to the legal rights of unmarried partners.
- 1 Terminology, misuse of the term, and public misconceptions
- 2 Essential distinctions from statutory marriage
- 3 History
- 4 Legislation
- 5 See also
- 6 References
Terminology, misuse of the term, and public misconceptions
The term "common-law marriage" is often used incorrectly to describe various types of couple relationships, such as cohabitation (whether or not registered), or other legally formalized relations. Although these interpersonal relationships 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, while couples in "marriage-like relationships" may have many of the rights and responsibilities of a marriage (laws vary by province), couples in such partnerships are not legally considered married, although they may be legally defined as "unmarried spouses" and for many purposes (such as taxes, financial claims, etc.) they are treated as if they were married. In recent years, the term common-law marriage has gained increased use as a generic term for all unmarried couples – however, this term has a narrow legal meaning. First of all, one can only talk of "common-law marriage" if such marriage was formed in a jurisdiction which actually applies the common law. A 2008 poll in the UK showed that 51% of respondents incorrectly believed that cohabitants had the same rights as married couples.
Non-marital relationship contracts are not necessarily recognized from one jurisdiction to another, and neither are de facto couples, whereas common-law marriages, being a legal marriage, are 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).
Essential distinctions from statutory marriage
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Common-law and statutory marriage have the following characteristics in common:
- Both parties must freely consent to the marriage
- Both parties must be of legal age to contract a marriage or have parental consent to marry
- 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:
- There is no marriage license issued by a government and no marriage certificate filed with a government
- There is no formal ceremony to solemnize the marriage before witnesses
- The parties must hold themselves out to the world as spouses (this is not a requirement of statutory marriage)
- 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.
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.
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.
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, 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, or other border villages such as Coldstream, to get married under Scots law.
Marriages per verba de praesenti, sometimes known as common-law marriages, were an agreement to marry, rather than a marriage.
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. All other European jurisdictions have long abolished "marriage by habit and repute", Scotland became the last to do so in 2006.
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 (Commonwealth), applicable in states that have referred their jurisdiction on de facto couples to the Commonwealth's jurisdiction. In Western Australia, the only state that has not referred its jurisdiction, state legislation is still valid. There is also no federal recognition of de facto relationships existing outside of Australia (see Section 51(xxxvii) of the Australian Constitution), and so this is also a state matter.
The legal term for such relationships varies by state and territory; however, common-law marriage is not used anywhere in Australia.
|New South Wales/Norfolk Island||"Domestic relationship", encompassing "de facto relationships" and "close personal relationships"||Property (Relationships) Act 1984. Since July 1, 2016 all NSW laws also apply to the approximately 2,000 residents on Norfolk Island, under both the Norfolk Island Legislation Amendment Act 2015 and the Territories Legislation Amendment Act 2016 - because the Norfolk Legislative Assembly was abolished on July 1, 2015.|
|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 de jure marriage.
The federal Marriage Act 1961 provides for marriage, but does not recognize 'common-law marriages'. Since midnight 9 January, 2018 same-sex marriage became legally effective throughout Australia.
Canada does not have true common-law marriage (as in parts of the US), although common-law relationships are recognized for certain purposes across Canada. In Canada, the legal definition and many implications of marriage-like relationships fall under provincial jurisdiction. The term "common law" appears informally in documents from the federal government.
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. 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.
- the couple has been living in a conjugal relationship for at least 12 continuous months;
- the couple are parents of a child by birth or adoption; or
- 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.
The complete CRA definitions for marital status is available.
In many cases, couples in marriage-like relationships have the same rights as married couples under federal law. Various federal laws include "common-law status," which automatically takes effect when 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 and British Columbia 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.
In Ontario, the Ontario Family Law Act specifically recognizes common-law spouses in section 29, dealing with spousal support issues; the requirements are living together continuously for no less than three years 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.
However, common-law spouses do not have automatic rights under the Family Law Act to their spouses' property because section 29 of the Act (which extends the definition of spouses beyond those who are married) applies only to the support sections of the Act. Thus, common-law partners do not have a statutory right to divide property in a breakup, and must ask courts 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.
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. Same-sex partners are also recognized as "conjoints de fait" in de facto unions, for the purpose of social benefit laws. 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.
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.
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.
The term "common-law marriage" does not appear in BC law. A distinction is made between being a spouse and being married. Married couples include only those who have engaged in a legal marriage ceremony and have received a marriage licence. Spouses include married couples as well as those, of same or opposite gender, who satisfy criteria for being in a marriage-like relationship for a time period that depends on the law that is being considered. Hence the meaning of the term unmarried spouse in BC depends on the legal context. The criteria for a relationship being accepted as marriage-like include cohabitation for at least the specified period, unbroken by excessively long intervals that are unexplained by exigent circumstances. If dispute arises about whether the relationship was marriage-like, a court would consider a comprehensive set of further criteria including the domestic and financial arrangements, degree and nature of intimacy, and the sense of the relationship presented to friends and families (especially by each spouse to his/her own family). "Mere roommates will never qualify as unmarried spouses. There needs to be some other dimension to the relationship indicative of a commitment between the parties and their shared belief that they are in a special relationship with each other." The criteria do not exclude the existence of a previous marriage to a third person during the period of the marriage-like relationship of the unmarried spouses. Hence a person may have more than one spouse at the same time.
The implications of becoming an unmarried spouse include:
- Child support. A spouse is responsible for contributing towards support of a child and possibly the other spouse if he/she is a biological or adoptive parent, or has contributed to support of the child for at least one year during the "marriage-like relationship" with the child's parent and the parent applies to the court for continuing support after separation and within one year of the last support contribution. (The contribution towards child support expected from a non-parent is not as great as from a parent.)
- Financial support and division of property and debts after separation. If the "marriage-like relationship" has continued for two years, the laws that apply upon separation are the same as those that apply to married couples, according to the "Estate Administration Act". All property and debts acquired prior to the relationship are exempt. If no agreement between the partners about property and/or debts is written during or after the relationship, then the law specifies equal sharing of all acquired during the relationship, as well as any changes in the value of those brought into the relationship. (There is an exemption from equal sharing for certain categories, such as gifts and inheritances received by one spouse.) The degree of participation of each spouse in the acquisition of property or debt does not affect the sharing. Financial support may also be requested from the former spouse. A claim for financial support or the division of property and debt must be made within two years of the date of separation.
- Inheritance. A spouse is eligible for inheritance if the "marriage-like relationship" has existed for at least two years immediately prior to the death of the other spouse. All property and debts held in common are fully inherited automatically by the surviving spouse. Those brought into the relationship are subject to any existing valid will, which may be vulnerable to challenge if it does not provide for the surviving spouse and any children.
- Benefits from government programs. Access to benefits from government programs or policies can become more (or less) available upon becoming an unmarried spouse. In general, these become similar or identical to those of married couples, but the criteria for qualifying as unmarried spouses, such as longevity of the relationship, differ for the various programs. Social assistance is often immediately reduced when there is perceived to be a "spouse in the house", regardless of the nature of the relationship.
The requirements in some other provinces are as follows:
- 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.
- In Alberta, common-law relationships have been subsumed since 2003 under the terms of the Adult Interdependent Relationship Act, 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.
In Israel, courts and a few statutes (such as social security which grants death and disability benefits) have recognized an institute of yeduim batsibur (ידועים בציבור) meaning a couple who are "known in the public" (lit. translation) as living together as husband and wife. Generally speaking the couple needs to satisfy two tests which are: 1) "intimate life similar to married couple, relationship based on same emotions of affection and love, dedication and faithfulness, showing they have chosen to share their fate" (Supreme Court of Israel, judge צבי ברנזון (intimacy test)), and 2) sharing household (economic test). In addition courts usually are more likely to recognize such relationship as marriage for granting benefits if the couple could not get married under the Israeli law. 
Ireland does not recognize common-law marriage, but the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 gives some rights to unmarried cohabitants.
England and Wales
The term "common-law marriage" has been used in England and Wales to refer to unmarried, cohabiting heterosexual relationships. 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 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. Far from being treated as if they were married, couples known to be cohabiting risked prosecution by the church courts for fornication.
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. This decision affected 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. 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. (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. Only in the 1960s did the term "common-law marriage" begin to be used in its contemporary sense to denote unmarried, cohabiting heterosexual relationships and not until the 1970s and 1980s did the term begin to lose its negative connotations. 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.
Under Scots law, there have been several forms of "irregular marriage", among them:
- Irregular marriage by declaration de presenti—declaring in the presence of two witnesses that one takes someone as one's wife or husband.
- Irregular marriage conditional on consummation.
- Marriage contracted by correspondence.
- 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. 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.
In the United States, common-law marriage can be contracted in eight states and the District of Columbia. Once they meet the requirements of common-law marriage, couples in those true common-law marriages are considered legally married for all purposes and in all circumstances.
Common-law marriage can still be contracted in Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia. Common law marriage may also be valid under military law for purposes of a bigamy prosecution under the Uniform Code of Military Justice.
All U.S. 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. see: Full Faith and Credit Clause. However, absent legal registration or similar notice of the marriage, the parties to a common law marriage or their eventual heirs may have difficulty proving their relationship to be marriage. Some states provide for registration of an informal or common-law marriage based on the declaration of each of the spouses on a state-issued form.
Due to their colonial past, the islands of the English-speaking Caribbean have statutes concerning common-law marriage similar 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.
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- ע"א 621/69 קרול נסיס נגד קוינה יוסטר, פד"י כד(1) עמ' 617
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- Dalrymple v Dalrymple (1811) 2 Hag Con 54, 161 ER 665 (16 July 1811), Consistory Court, Doctors' Commons
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- Hyman Rodman, "Illegitimacy in the Caribbean Social Structure: A Reconsideration," American Sociological Review 31 (1966): 673–83.
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