Common Law Marriage: What States Allow Common Law Marriages today?
Today, only nine states and the District of Columbia recognize common-law marriage entered into within their boarders.
Section 1-3-1, Ala. Code 1975. Piel v. Brown, 361 So. 2d 90, 93 (Ala. 1978).
In Campbell's Adm'r v. Gullatt, 43 Ala. 57, 57, 69 (1869), the court held that "[a] marriage good at the common law is a valid marriage in this State." [Section 1-3-1, Ala. Code 1975, provides: The common law of England, so far as it is not inconsistent with the Constitution, laws, and institutions of this state, shall, together with such institutions and laws, be the rule of decisions, and shall continue in force, except as from time to time it may be altered or repealed by the legislature. ]
CRS § 14-2-104(3). Klipfel's Estate v. Klipfel, 92 P. 26 (Colo. 1907). Deter v. Deter, 484 P.2d 805, 806 (Colo. Ct. App. 1971). C.R.S.A. § 14-2-104. [§ 14-2-104. Formalities. (1) Except as otherwise provided in subsection (3) of this section, a marriage is valid in this state if:(a) It is licensed, solemnized, and registered as provided in this part 1; and (b) It is only between one man and one woman.(2) Notwithstanding the provisions of section 14-2-112, any marriage contracted within or outside this state that does not satisfy paragraph (b) of subsection (1) of this section shall not be recognized as valid in this state.(3) Nothing in this section shall be deemed to repeal or render invalid any otherwise valid common law marriage between one man and one woman.]
Shorten v. Judd, 55 P. 286 (Kan. 1898); Smith v. Smith, 161 Kan. 1, 3, 165 P.2d 593, 594 (1946). K.S.A. § 23-101. [§ 23-101. Nature of marriage relation. (a) The marriage contract is to be considered in law as a civil contract between two parties who are of opposite sex. All other marriages are declared to be contrary to the public policy of this state and are void. The consent of the parties is essential. The marriage ceremony may be regarded either as a civil ceremony or as a religious sacrament, but the marriage relation shall only be entered into, maintained or abrogated as provided by law. (b) The state of Kansas shall not recognize a common-law marriage contract if either party to the marriage contract is under 18 years of age.]
Mont. Code Ann. § 40-1-403 (1997). [§ 40-1-403. Validity of common-law marriage. Common-law marriages are not invalidated by this chapter. Declarations of marriage pursuant to 40-1-311 through 40-1-313, 40-1-323, and 40-1-324 are not invalidated by this chapter.]
Reaves v. Reaves, 15 Okla. 240, 82 P. 490 (1905).Warren v. Canard, 120 P. 599 (Okla. 1911). Coleman v. James, 67 Okla. 112, 169 P. 1064 (1918); In re Sanders' Estate, Okla., 67 Okla. 3, 168 P. 197 (1917). 43 Okl.St.Ann. § 1.
Iowa Code Ann. §. 595.11; McFarland v. McFarland, 2 N.W. 269 (Iowa 1879). [§ 595.11. Nonstatutory solemnization--forfeiture. Marriages solemnized, with the consent of parties, in any manner other than that prescribed in this chapter, are valid; but the parties, and all persons aiding or abetting them, shall pay to the treasurer of state for deposit in the general fund of the state the sum of fifty dollars each; but this shall not apply to the person conducting the marriage ceremony, if within fifteen days after the ceremony is conducted, the person makes the required return to the county registrar.]
The statutory provisions relating to marriage do not forbid common-law marriages and such marriages are valid. Mathewson v. Phoenix Iron Foundry, 20 F. 281 (D.R.I. 1884); Holgate v. United Elec. Rys., 47 R.I. 337, 133 A. 243 (1926). Sardonis v. Sardonis, 106 R.I. 469, 472, 261 A.2d 22, 23 (1970). Statutory provisions relative to the licensing and solemnization of marriages are directory and are unrelated to the status of common-law marriages. Souza v. O'Hara, 121 R.I. 88, 395 A.2d 1060 (1978). RI ST s 15-2-1.
Johnson v. Johnson, 235 S.C. 542, 550, 112 S.E.2d 647, 651 (1960)).
Code 1976 § 20-1-360. [§ 20-1-360. Effect of article on marriage without license.
Nothing contained in this article shall render illegal any marriage contracted without the issuance of a license.]
Berger v. Kirby, 153 S.W. 1130 (Tex. 1913). [Tex.Fam.Code Ann. § 1.91(a)(2) (West 1996) provides that "... the marriage of a man and woman may be proved by evidence that ... they agreed to be married, and after the agreement they lived together in this state as husband and wife and there represented to others that they were married." Tex. Fam.Code Ann. § 1.91(a)(2) (West 1996)]. Texas has an "informal marriage". [ § 2.401 of the Texas Family Code provides that an informal marriage can be established either by declaration (registering at the county courthouse without having a ceremony), or by meeting a 3-prong test showing evidence of (1) an agreement to be married; (2) cohabitation in Texas; and (3) representation to others that the parties are married. There is an evidentiary presumption that there was no marriage if no suit for proof of marriage is filed within two years of the date the parties separated and ceased living together.]
Utah revived common-law marriage in 1998. See Utah Code § 30-1-4.5 (1998). Utah recognizes common law marriages only if they have been validated by a court or administrative order. U.C.A. 1953 § 30-1-4.5 [§ 30-1-4.5. Validity of marriage not solemnized. (1) A marriage which is not solemnized according to this chapter shall be legal and valid if a court or administrative order establishes that it arises out of a contract between a man and a woman who:(a) are of legal age and capable of giving consent;(b) are legally capable of entering a solemnized marriage under the provisions of this chapter;(c) have cohabited;(d) mutually assume marital rights, duties, and obligations; and (e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife.(2) The determination or establishment of a marriage under this section must occur during the relationship described in Subsection (1), or within one year following the termination of that relationship. Evidence of a marriage recognizable under this section may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases.]
District of Columbia.
Hoage v. Murch Bros. Const. Co., 50 F.2d 983 (D.C. Cir. 1931). Johnson v. Young, 372 A.2d 992, 994 (D.C. 1977).
New Hampshire recognizes common law marriages only for probate purposes. Common law marriages are effective only at death. N.H. Rev. Stat. Ann § 457:39. [§ 457:39 Cohabitation, etc. Persons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for the period of 3 years, and until the decease of one of them, shall thereafter be deemed to have been legally married.]
Since 1990 Georgia, Idaho, Ohio, and Pennsylvania have abolished common law marriage, but recognize common law marriages entered into within their boarders before it was abolished. Georgia abolished the doctrine of common law marriage effective January 1, 1997. Ga. Code Ann. § 19-3-1.1 (1997). It recognizes common law marriages formed before January 1, 1997 (1996 Georgia Act 1021). Idaho abolished the doctrine of common law marriage effective January 1, 1996. Idaho Code §32-201 (1996). It recognizes common law marriages formed before January 1, 1996. Idaho Code § 32-201. Ohio abolished the doctrine of common law marriage on October 10, 1991. Ohio Rev. Code Ann. § 3105.12. It recognizes common law marriages effective before October 10, 1991. Lyons v Lyons, 621 NE2d 718 (Ohio App.1993. Pennsylvania abolished the doctrine of common law marriage effective January 24, 2005. 23 Pa.C.S.A. § 1103. [§ 1103. Its statute provides that no common-law marriage contracted after January 1, 2005, shall be valid but that nothing shall be deemed or taken to render any common-law marriage otherwise lawful and contracted on or before January 1, 2005, invalid.
Other states including, but not limited to New York, which abolished common law marriage April 29, 1933 and Florida, which abolished common law marriage in 1968, recognize marriages entered into their before it was abolished.
|Go To Top of Page|