Common law marriage is still marriage

Posted Wednesday, June 24th, 2015 by Gregory Forman
Filed under Divorce and Marriage, Law and Culture, Of Interest to General Public, South Carolina Specific

I am amazed at the number of folks contacting my office who have inadvertently gotten themselves married via common law marriage. I am also amazed at the folks who ask how they can get common law married because they don’t want to go through the trouble or expense of a ceremonial marriage. Such questions or situations can only occur because folks misunderstand common law marriage. Within the general public common law marriage is considered some middle form of a relationship: more committed than mere cohabitation but less committed than ceremonial marriage. The thinking is:

cohabitation < common law marriage < ceremonial marriage

This thinking is not correct. The distinction between common law marriage and ceremonial marriage isn’t a distinction in the rights and responsibilities inherent in a marital relationship but in the method of proving a marital relationship. And the method of proving a common law marriage is vastly more expensive and complicated.

In Charleston County, where I live and practice, the cost of a marriage license is $70.00 and any person authorized to administer oaths–this includes Notaries Public–can perform the marriage ceremony. Many family law attorneys will perform marriages for little or no charge [I will for friends and former clients]. In contrast, proving a marriage was entered through common law requires a court case with a filing fee of $150.00–and often requires substantial attorney’s fees even when the “fact” of the marriage is uncontested.

No one should enter a common law marriage. Anyone wanting to be married should enter a ceremonial marriage. Folks not intending to be married shouldn’t fall into common law marriage in the expectation that they are entering a relationship with fewer rights and responsibilities.

11 thoughts on Common law marriage is still marriage

  1. I wish our Legislators would abolish common law marriage because the need for it no longer exists. Yet, because it exists, some people find out they are married when they did not intend to be married.

    Greg, your example is very good, and I meet many people with the same misunderstanding that common law marriage is simply a more serious relationship than dating but does not have the obligations of a formal marriage. I actually had lunch recently with a good friend with a masters degree. He was divorced but had some lingering financial issues, and he wanted to resolve them before he and his live-in girlfriend married. However, he told me that she is uncomfortable telling others they are not married since they live together so they routinely introduce themselves as husband and wife.

    It was quite awkward to tell him that if they both held themselves out to others, particularly many people on numerous occasions, that they were likely married by common law and any financial issues that he was trying to protect her from may need a different resolution to fix. He was shocked and I have not heard how the news went over when he arrived home for dinner to let his gf know she was already his wife.

    I think this situation is much more common than any of us realize especially since most states have abolished this antiquated law. Other problems arise for Plan Administrators of Qualified Retirement Plans. Is there a spouse or not? Think of the issues that come up in Probate Court and someone tries to claim they are the spouse of the deceased to the surprise of the deceased children. If the law required affirmative actions as simply as obtaining a license so marriages are registered and both parties are signatories on the license and affirm their desire to marry, the unintentional marriage would be avoided.

      1. Latwanna A. says:

        Thanks for this recent post on common law marriage. While I agree that common law marriage can be more of a headache than ceremonial marriage, I disagree with the idea that a man and woman need a license to live a life together before God in the same way that we need a license to drive a car. I do not like the trouble my husband and I have to go through to prove our common law marriage, but we refuse to get a marriage license when the original reason for the marriage license was to keep blacks and whites from marrying. Few know this history, but I rest my case. Now, we have the right for gays to be married when really no person should have to get a license to marry because Adam and Eve never did. For those that are evolutionists, I’m sure the cavemen didn’t need a marriage license either. Something as simple as “marriage registration” would solve the problem for everyone and I think it is time we make this the standard across the country. No more marriage licenses! Just people deciding who they want to be married to and keeping it on record. Too easy! :)

        1. I think a “marriage license” and a “marriage registration” is a distinction without a difference. Unlike a drivers license, no test is required for a marriage license.

          The licensing requirement is simply a method of insuring that folks realize they are becoming married and a way for government to know which folks are married. Knowing who’s married becomes important when folks attempt to benefit from the myriad benefits the government grants that are predicated on marriage.

          The caveman wasn’t seeking government benefits and therefore needed no license.

          1. Latwanna A. says:

            Sure. I am well aware of the need for the government to verify who is married and who is not for purpose of insurance and survivor benefits. This is important. However, why do people need permission to marry before they can get benefits?

            It seems the government waited until they could make money off of marriages to create the marriage license. Marriage licenses originally had nothing to do with government benefits, but the government found a way to benefit. The Latin root of the word license means to be allowed. Miscegenation Laws was not long ago and it took marriage licenses before blacks and non-whites could marry. It was once a felony to do so. Consider how first marijuana is evil and people go to prison for selling or smoking it, but now the government has found a way to BENEFIT.

            This talk of licenses for benefits is just a cover up of marriage license history. Remember Loving v. Virginia? Whites did not need marriage licenses before intermarrying started. I like to look at the big picture and not one aspect.

            Black’s Law Dictionary keeps getting updated to reflect the changing marriage laws of this country. Older editions reveal the truth.

            In my humble opinion, it is not licenses granting permission to marry that is necessary, but simple government recording of marriages. The same way that folks can register their common law marriage with their county court.

            With all due respect, this nation has to come to terms with why we find ourselves in these court cases in the first place. It started with interracial marriage. We have dealt with gay marriage and soon we will have to deal with plural marriages.

            No more licenses and government involvement in marriage except for establishment of official records of marriage.

            Thanks for the good conversation. Enjoy the rest of summer!

          2. Latwanna A. says:

            I do appreciate your response and forgive me if offended in any way. I do not practice law, but I serve the Creator of the heavens and the earth. Until His kingdom comes, we have to put up with these man-made laws in this country along with many injustices across the globe. I’m okay with living peaceably with all men, but I refuse to be married to the government. :)

        2. Latwanna A. says:

          Correction: Miscegenation Laws was not long ago and it took marriage licenses before whites and non-whites could marry. (blacks are non-whites!)

  2. MJ Goodwin says:

    I added to your wisdom. I am seeing this more and more lately.

  3. Conrad Falkiewicz says:

    The problem has also risen because some larger medical providers are having individuals sign a form stating and establishing that they are common law married so that one or the other of the individuals can access insurance benefits….there is no discussion of marriage, alimony, debts, tax issues, social security or the termination of SSI benefits and other pretty large issues that flow from getting married…they just shove a document across a table and the desperate people sign it and abracadabra, another match made somewhere other than heaven that has huge and sometimes devastating results. The providers do this so they can collect bills and do not think any further than their own bottom line….and it is reprehensible.

  4. Erik R. Bogart says:

    Even though I don’t practice family law, sometimes I get random phone calls from people who simply have seen the words “law firm” in the Yellow Pages and my office phone number, and are under some strange belief that I am the free “legal hotline.” (I guess they don’t know any better.) But anyway, a few weeks ago I received a call from a woman who said, “I’ve been living with my boyfriend for four years and yesterday he dumped me for a younger woman and kicked me out of his place. Aren’t I common law married?” After getting the general facts it was clear that her situation did not meet the criteria to establish a common law marriage, as defined in the case law and as explained so well in Greg Forman’s blogs. I told her to call a family law attorney but said that it was unlikely she would prevail based on what I know about the subject (I have read the case law and I remember that this was tested on the Bar exam). So I found it both interesting and troubling that attorneys Brown and Goodwin (see above comments) have seen examples in their practice in which someone was able to establish common law marriage based simply on things like the way one or two forms were filled out for health insurance and the like (which would seem to fall short of the usual standard that is required). [I agree with Ms. Brown and Ms. Goodwin that the legislature should get rid of common law marriage once and for all.] But I am a little confused as to how a party (say the unwitting boyfriend) could find himself in a marriage that he wasn’t aware he was in, simply by virtue of things like health insurance paperwork, when there isn’t something more (like an exchange of rings, conscious “holding one out as married,” etc.). Marriage is a contract, and I am curious how a court could find a common law marriage in a situation where there wasn’t really a “meeting of the minds.” Thanks in advance for your comments – even though I don’t practice in this area (yet), it would be quite educational for me if anyone out there who concentrates in family law could share their thoughts about it on this comment page. (BTW Mr. Forman your website and blogs are simply incredible).

  5. Danny Louis says:

    As read,common law marriage is not followed in most states today. So regardless of how many years you live together, you don’t have to worry about a common law marriage.Couples who do marry under common law are likely to have their marriage recognized.Common law marriage is a serious relationship than formal marriage it’s true.

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