Common Law Marriage – What is it?

Marriage has not always been as formal as we see it today. In fact, marriages were once private agreements between individuals and families. In 1753, Britain passed The Marriage Act, the first statutory legislation in England to require formal marriage ceremonies, but this did not apply to Britain’s overseas colonies of the time, so common law marriage continued to be recognized in the future United States. Common law marriage can still be contracted in the U.S. in Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah and Washington D.C.

The Missouri legislature has rejected the idea of common law marriage. BUT, Missouri may recognize common law marriages properly contracted in the states listed above. This sounds simple enough, but picture this:

Joe and Sally were “common law married” in Colorado. They lived together and called each other husband and wife. Sally even took Joe’s last name and they bought a house together, opened a few bank accounts in joint names and bought a couple of cars. A few years down the road, Joe and Sally had a son, Johnny.

One day Sally realizes she wants a divorce and moves to Missouri. That sounds normal enough until Joe says, “Hey, we never got married.” With no valid marriage, Sally can’t have a divorce and the family is now left in flux. What is Sally to do now? Who will get the house? Will she keep her car? Will they divide the retirement? Will Sally get alimony from Joe? In order for the court to address these issues, Sally has to prove that she and Joe did, in fact, enter into a common law marriage in Colorado.

Generally states allowing contracts of common law marriage have certain requirements for recognition. For example, Colorado requires that the couple has done a few things: (1) Cohabitate, (2) Mutually agree to be married, and (3) Openly hold themselves out to the public as married. Most other states recognizing contracts of common law marriage have similar requirements and, obviously, each of these requirements could be up for debate in court between husband and wife.

Although these situations are somewhat uncommon, if Sally is able to show that there was a valid common law marriage in Colorado, she may be able to receive a divorce in Missouri.

Be aware every situation is unique. If you have questions about your individual situation, please contact an attorney. This post should not be considered to have formed an attorney/client relationship and should not be considered legal advice.