What is a common law family?
A common law family is a man and a woman living together in a common law marriage situation with children. A common law marriage is an alternative form of marriage. Unlike a traditional marriage, common law marriage does not require that the couple have a ceremony led by a justice of the peace, or that they obtain a marriage license. A common law marriage is instead obtained purely through the conduct and relationship of the two people. While many states outlawed common law marriage by statute in the 1800’s, fifteen states and the District of Columbia still recognize a common law union.
Reasons behind the decision to recognize the common law family vary from state to state. Some states recognize the union for religious freedom purposes. Other states believe that people should have the option to marry without government involvement, and still other states choose to recognize common law marriage to ensure that no one is excluded from marriage for financial reasons.
States that Recognize the Common Law Family
The states that recognize a full common law marriage are Colorado, Alabama, Oklahoma, Iowa, Kansas, Texas, Rhode Island, South Carolina, Utah, Montana, and the District of Columbia. There are other states that recognize a limited form of a common law marriage. Some of these states, including Georgia, Pennsylvania, Ohio, and Idaho, only recognize a common law marriage if the elements of the marriage were met before a certain year. The state of New Hampshire only recognizes the common law family for the purpose of inheritance.
Sometimes a couple will obtain a common law marriage, and then move to a state that does not recognize the common law family. In these cases, states will generally still recognize the couple’s legal union as a marriage. However, this area of law can be complex. While the full faith and credit clause of the U.S. Constitution requires states to give accordance to the laws of other states, many states have statutes outlawing common law marriages. Some of these states have challenged these unions when couples attempt to enforce their marriage rights.
Common Law Family Requirements
The states that do recognize the common law family all require that certain criteria be met before the couple is legally married. Contrary to popular belief, not one state that recognizes common law marriage requires that a couple live together for a specific period of time. Furthermore, if all the couple does is live together, without acting as a married couple in other regards, this will not be recognized as a common law marriage in any state.
While the criteria necessary for a common law marriage differs among states, all states require that the couple have the intent to be married. Aside from intent, states generally require the couple to have the capacity to consent to marriage, to hold themselves out as being married, and to cohabitate for a significant period of time. Some states require that all of these elements are met, and some only require that a couple of them are met. To hold themselves out as being married, the couple must publicly act as they would if they had had a traditional marriage. This could include filing taxes as a married couple, calling each other husband and wife, wearing wedding rings, and changing a last name.
While the common law family is not widely recognized, it is still available to couples and families that live in certain states. Many attorneys suggest that if people live together as a couple in a state that recognizes common law marriage but do not want to be married, they draft a written agreement declaring this intent to stay single. This may protect interests down the road if there is dispute about whether a common law marriage was entered into by a couple. It is also important to remember that there is no common law divorce. Once a common law marriage is recognized, a person must obtain a traditional divorce in order to sever the union.