Common-law marriage
Common-law marriage, also known as non-ceremonial marriage, sui iuris marriage, informal marriage, de facto marriage, more uxorio or marriage by habit and repute, is a marriage that results from the parties' agreement to consider themselves married, followed by cohabitation, rather than through a statutorily defined process. Not all jurisdictions permit common law marriage, but will typically respect the validity of such a marriage lawfully entered into in another state or country.
The original concept of a "common-law" marriage is one considered valid by both partners, but not formally recorded with a state or religious registry, nor celebrated in a formal civil or religious service. In effect, the act of the couple representing themselves to others as being married and organizing their relationship as if they were married, means they are married.
The term common-law marriage has wider informal use, often to denote relations that are not legally recognized as marriages. It is often used colloquially or by the media to refer to cohabiting couples, regardless of any legal rights or religious implications involved. This can create confusion in regard to the term and to the legal rights of unmarried partners.
Terminology
Common-law marriage is a marriage that takes legal effect without the prerequisites of a marriage license or participation in a marriage ceremony. The marriage occurs when two people who are legally capable of being married, and who intend to be married, live together as a married couple and hold themselves out to the world as a married couple.Common-law marriage vs. cohabitation
The term "common-law marriage" is often used incorrectly to describe various types of couple relationships, such as cohabitation or other legally formalized relations. Although these interpersonal relationships are often called "common-law marriage", they differ from its original meaning in that they are not legally recognized as "marriages", but may be a parallel interpersonal status such as a "domestic partnership", "registered partnership", "common law partner", "conjugal union", or "civil union". Non-marital relationship contracts are not necessarily recognized from one jurisdiction to another.In Canada, while some provinces may extend to couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married. They may be legally defined as "unmarried spouses" and, for many purposes such as taxes and financial claims and within those contexts, treated the same as married spouses.
A 2008 poll in the UK showed that 51% of respondents incorrectly believed that cohabitants had the same rights as married couples.
In Scotland, common-law marriage does not exist, although there was a type of irregular marriage called 'marriage by cohabitation with habit and repute' which could apply to couples in special circumstances until 2006, and was abolished by the Family Law Act 2006.
History
In ancient Greece and Rome, marriages were private agreements between individuals and estates. Community recognition of a marriage was largely what qualified it as a marriage. The state had only limited interests in assessing the legitimacy of marriages. Normally, civil and religious officials took no part in marriage ceremonies and did not keep registries. There were several more or less formal ceremonies to choose from as well as informal arrangements. It was relatively common for couples to cohabit with no ceremony; cohabiting for a moderate period of time was sufficient to make it a marriage. Cohabiting for the purpose of marriage carried with it no social stigma.In medieval Europe, marriage came under the jurisdiction of canon law, which recognized as a valid marriage one in which the parties stated that they took one another as wife and husband, even in the absence of any witnesses.
The Catholic Church forbade clandestine marriage at the Fourth Lateran Council, which required all marriages to be announced in a church by a priest. The Council of Trent introduced more specific requirements, ruling that future marriages would be valid only if witnessed by the pastor of the parish or the local ordinary or by the delegate of one of said witnesses, the marriage being invalid otherwise, even if witnessed by a Catholic priest. The Tridentine canons did not bind the Protestants or the Eastern Orthodox, but clandestine marriages were impossible for the latter since their validity required the presence of a priest. England abolished clandestine or common-law marriages in the Marriage Act 1753, requiring marriages to be performed by a priest of the Church of England unless the participants in the marriage were Jews or Quakers. The Act applied to Wales but not to Scotland, which retained its own legal system by the Acts of Union 1707. To get around the requirements of the Marriage Act, such as minimum age requirements, couples would go to Gretna Green, in the south of Scotland, or other border villages such as Coldstream, to get married under Scots law. The Marriage Act 1753 also did not apply to Britain's overseas colonies of the time and so common-law marriages continued to be recognized in what are now the United States and Canada.
Contracts per verba de praesenti, sometimes known as common-law marriages, were viewed in Anglican Great Britain as promise of marriage rather than actual marriage, that required ceremony in Church before consummation, in opposition to high Middle Ages times when a couple who exchanged vows without a priest was considered to be validly married.
Legislation
Australia
does not have common law marriage as it is understood under common law. The term used for relationships between any two persons who are not married but are living in certain domestic circumstances, may vary between states and territories, although the term de facto relationship is often used.Since March 1, 2009, de facto relationships have been recognized in the Family Law Act, applicable in states that have referred their jurisdiction on de facto couples to the Commonwealth's jurisdiction. In Western Australia, the only state that has not referred its jurisdiction, state legislation is still valid. There is also no federal recognition of de facto relationships existing outside of Australia, and so this is also a state matter. Regulation of de facto relations is a combination of federal and state/territory laws.
Canada
does not have the institution of common-law marriage, where a couple can be legally married by living together with an intention to be married, and without a formal ceremony. However, informal cohabitation relationships are recognised for certain purposes in Canada, creating legal rights and obligations.Denmark
§ 27 of the historical Jyske Lov, which covered Funen, Jutland and Schleswig in the years 1241–1683, reads:India
In the case of D. Velusamy v D. Patchaiammal, the Supreme Court of India defined, with reference to the Domestic Violence Act of 2005, "a relationship in the nature of marriage" as "akin to a common law marriage". The Supreme Court declared that the following are required to satisfy the conditions for a common-law marriage or a relationship in the nature of marriage:- Must be of marriageable age.
- Must not be already married and be qualified to marry.
- Must be living together in a way that seems to society that the couple is married
- Must have cohabited for a "significant" period of time.
- Must be living together voluntarily.
Ireland
does not recognize common-law marriage, but the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 gives some rights to unmarried cohabitants. Following the Marriage Act 2015 which legalized same-sex marriage in Ireland, civil partnerships are no longer available in Ireland; couples already in a civil partnership may apply to convert their civil partnership into marriage or may remain in a civil partnership which will continue to be valid, if contracted before November 2015. A constitutional amendment that would have recognised family as including unmarried 'durable' relationships, proposed in March 2024, failed by 67%.Israel
In Israel, courts and a few statutes have recognized an institute of yeduim batsibur meaning a couple who are "known in the public" "intimate life similar to married couple, relationship based on same emotions of affection and love, dedication and faithfulness, showing they have chosen to share their fate", and 2) sharing household. In addition, courts usually are more likely to recognize such relationships as marriage for granting benefits if the couple could not get married under Israeli law.Israel's common-law status grants Israeli couples virtually the same benefits and privileges as married couples.