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The History Of Common Law Marriage

By: Dawn Gould

A common law marriage is one where the parties cohabit with each other, have a mutual agreement to be married, and hold themselves out to be married (evidence of mutual agreement). You are not required to have a civil or religious ceremony, a marriage license, or a marriage certificate to have a common law marriage.

The phrase "common law" originates with England and refers to those non-ceremonial marriages that were valid under English law. In the 1877 case Meister v. Moore, the U.S. Supreme Court held that a non-ceremonial marriage was a valid enforceable marriage, unless a state’s statute forbade it. Common law marriages in the U.S. were really a matter of convenience because it was difficult to locate someone qualified to perform a marriage ceremony and, historically, there was a stigma of not being married and having a child and the common law marriage removed that stigma. Fast forward to today, you can become licensed over the internet to marry people, some states do not require a waiting period or medical tests prior to getting married, and there is no longer a stigma of living together and not being married, even if you do have children together. Therefore, most states no longer recognize common law marriage, but if you move to a state that does not recognize it, you will not be “unmarried”. The Full Faith and Credit Clause of the Constitution requires that states give “full faith and credit” to the laws of other states, otherwise, people would be allowed to avoid legal issues in their own state by fleeing to another and/or prevented from enjoying the privileges and rights they once enjoyed. For example, imagine your marriage being recognized as a common law marriage in one state and then moving to another state that does not recognize it and, because of that, you are prevented from getting divorced because you don’t have a valid marriage in that other state. That would not make sense, nor would it be fair.

As of March 11, 2020, per the National Conference State Legislatures, there are eight states that recognize common law marriage: Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. Though Washington, D.C. is not a state, it does recognize common law marriage. Additionally, there are states that used to allow common law marriages, but no longer do if the marriage was entered into after the date it was abolished:

  1. Pennsylvania won’t recognize it if it was entered into after Jan. 1, 2005,
  2. Ohio won’t recognize it if it was entered into after on or after Oct. 10, 1991,
  3. Indiana won’t recognize it if it was entered into after Jan. 1, 1958,
  4. Georgia won’t recognize it if it was entered into after Jan. 1, 1997,
  5. Florida won’t recognize it if it was entered into after Jan. 1, 1968, and
  6. Alabama won’t recognize it if it was entered into after Jan. 1, 2017.

At The Harris Law Firm we can assist you in proving that there is or is not a common law marriage and we can also assist you with a divorce if needed. Please contact us today at (303) 622-5502 and one of our experienced attorneys will guide you through the legal process and answer any questions that you may have.

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