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common law marriage vs. real marriage

Posted by on Feb. 9, 2011 at 12:55 PM
  • 33 Replies

This is kind of a lil spin off of that other post about calling your bf your husband. My bf and I have been together for a lil over 2 years now, but its been an off and on thing. Never once have I ever called him a 'hubby'. People like calling us married cause thats how we 'act' so, he gave up correcting people when they call me his wife.We're not married cause Im just not ready to make that leap. And when I do, I want the ceremony to be beautiful. For me, I want the marriage paper, the big ceremony and all the vows taken seriously. You know what I mean?

Now, What is common law marriage? What are the advantages to being really married? Do common law marriages go through divorces? This is really new to me and Im not clear on it at all. 

by on Feb. 9, 2011 at 12:55 PM
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Replies (1-10):
paganbaby
by Ruby Member on Feb. 9, 2011 at 12:57 PM

bump, not sure.

but I lived with my dh for 1yr before we got married


MoM.i.aM
by on Feb. 9, 2011 at 12:57 PM

Common Law marriages are legally binding. You have to go through divorce as well. It is a real marriage.

MoM.i.aM
by on Feb. 9, 2011 at 12:58 PM

Also just living together doesnt mean your common law married. You have to present youself as husband and wife, file taxes together, and mos tof the time use the same last name.

lanceandhailey
by Platinum Member on Feb. 9, 2011 at 12:59 PM

To be defined as a common-law marriage within the states that allow it, the two people must: agree that they are married, live together, and present themselves as husband and wife. Common-law marriage is generally a non-ceremonial relationship that requires "a positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, cohabitation sufficient to warrant a fulfillment of necessary relationship of man and wife, and an assumption of marital duties and obligations." Black's Law Dictionary 277 (6th ed. 1990).

Before modern domestic relations statutes, couples became married by a variety of means that developed from custom. These became the elements of a "common-law marriage," or a marriage that arose through the couple's conduct, instead of through a ceremony. In many ways, the theory of common-law marriage is one of estoppel - meaning that couples who have told the world they are married should not be allowed to claim they aren't when in a dispute between themselves.

Currently, only nine states (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma and Texas) and the District of Columbia recognize common-law marriages. In addition, five states have "grandfathered" common-law marriage (Georgia, Idaho, Ohio, Oklahoma and Pennsylvania) allowing those established before a certain date to be recognized. 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.

  • Alabama
  • Colorado
  • District of Columbia
  • Georgia
  • Idaho
  • Iowa (Iowa Code Ann. §. 595.11)
  • Kansas
  • Montana (Mont. Code Ann. § 26-1-602, 40-1-403)
  • New Hampshire
  • Ohio
  • Oklahoma (Okla. Stat. Ann. tit. 43, § 1)
  • Pennsylvania (23 Penn. Cons. Stat. § 1103)
  • Rhode Island
  • South Carolina
  • Texas (Tex. Fam. Code Ann. § 2.401)
  • Utah (Utah Code Ann.§ 30-1-4.5)

Georgia: Only for common-law marriages formed before January 1, 1997 (1996 Georgia Act 1021).
Idaho: Only for common-law marriages formed before January 1, 1996 (Idaho Code § 32-201).
Kansas: law prohibits recognition of common law marriage if either party is under 18 years of age. (2002 Kan. Sess. Laws, SB 486, §23-101).
New Hampshire: Common law marriages effective only at death. (N.H. Rev. Stat. Ann § 457:39).
Ohio: Only for common-law marriages formed before October 10, 1991 (Lyons v. Lyons 621 N.E. 2d 718 (Ohio App. 1993)).
Oklahoma: Only for common-law marriage formed before November 1, 1998. (1998 Okla. SB 1076).
Pennsylvania: law was amended to read "No common-law marriage contracted after January 1, 2005 shall be valid." (Pennsylvania Statues, Section 1103)
Texas: calls it an "informal marriage," rather than a common-law marriage. Under § 2.401 of the Texas Family Code, an informal marriage can be established either by declaration (registering at the county courthouse without having a ceremony), or by meeting a three-prong test showing evidence of (1) an agreement to be married; (2) cohabitation in Texas; and (3) representation to others that the parties are married. A 1995 update adds an evidentiary presumption that there was no marriage if no suit for proof of marriage is filed within two years of the date the parties separated and ceased living together.
Utah: Administrative order establishes that it arises out of a contract between two consenting parties who: (a) are capable of giving consent; (b) are legally capable of entering a solemnized marriage; (c) have cohabited; (d) mutually assume marital rights, duties, and obligations; and (e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife. The determination or establishment of such a marriage must occur during the relationship or within one year following the termination of that relationship.

Because the doctrine of common-law marriage developed before the advent of modern domestic relations statutes, in some states the law exists in case law rather than legislation. (For example: Piel v. Brown, 361 So. 2d 90, 93 (Ala. 1978); Deter v. Deter, 484 P.2d 805, 806 (Colo. Ct. App. 1971); Johnson v. Young, 372 A.2d 992, 994 (D.C. 1977); Smith v. Smith, 161 Kan. 1, 3, 165 P.2d 593, 594 (1946); Sardonis v. Sardonis, 106 R.I. 469, 472, 261 A.2d 22, 23 (1970); Johnson v. Johnson, 235 S.C. 542, 550, 112 S.E.2d 647, 651 (1960)).

Tennessee has employed a doctrine of "estoppel to deny marriage." See Note, Informal Marriages in Tennessee - Marriage by Estoppel, by Prescription and by Ratification, 3 VAND. L. REV. 610, 614-15 (1950).

Many states have abolished common-law marriage by statute, because common-law marriage was seen as encouraging fraud and condoning vice, debasing conventional marriage, and as no longer necessary with increased access to clergy and justices of the peace. (For example: Cal. Civ. Code § 4100; N.Y. Dom. Rel. Law § 11 ; Furth v. Furth, 133 S.W. 1037, 1038-39 (Ark. 1911); Owens v. Bentley, 14 A.2d 391, 393 (Del. Super. 1940); Milford v. Worcester, 7 Mass. 48 (1910)).

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 indispensable elements are (1) cohabitation and (2) "holding out." "Holding out" means that the couple tells 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. This means that mere cohabitation cannot, 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.

The U.S. Constitution requires every state to accord "full faith and credit" to the laws of its sister states. Thus, a common-law marriage that is validly contracted in a state where such marriages are legal will be valid even in states where such marriages cannot be contracted and may be contrary to public policy.

There is no such thing as common-law divorce. Once parties are married, regardless of the manner in which their marriage is contracted, they can only be divorced by appropriate means in the place where they ask for the divorce. That means, in all 50 states, only by a court order.

For more information regarding marriage and/or divorce, call NCSL at 303-364-7700 or cyf-info@ncsl.org.

msalice_21
by on Feb. 9, 2011 at 12:59 PM

How long do you go before your 'commonly lawed married'? 

Quoting MoM.i.aM:

Also just living together doesnt mean your common law married. You have to present youself as husband and wife, file taxes together, and mos tof the time use the same last name.


momofnhimai
by on Feb. 9, 2011 at 1:00 PM

common law marriage is such Bullshit.


msalice_21
by on Feb. 9, 2011 at 1:01 PM

How do you take your husbands name when your not married????

Quoting :


MoM.i.aM
by on Feb. 9, 2011 at 1:02 PM

You two have to agree your married. if your not wanting to be confused as common law married then I would suggest writting a document stating that you dont see yourselves as married and that you will not be married until you have the proper ceremony.

Its not just a matter of living together.

Quoting msalice_21:

How long do you go before your 'commonly lawed married'? 

Quoting MoM.i.aM:

Also just living together doesnt mean your common law married. You have to present youself as husband and wife, file taxes together, and mos tof the time use the same last name.

 


msalice_21
by on Feb. 9, 2011 at 1:02 PM

Thats how I feel but maybe Im not understanding this right. Thats why Im asking what the heck is the difference and what are the benefits of each.

Quoting momofnhimai:

common law marriage is such Bullshit.


bananahammock1
by on Feb. 9, 2011 at 1:02 PM

 No idea

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