How Do We Part Ways?
“I am” is reportedly the shortest sentence in the English language. Could it be that “I do” is the longest sentence? – Unknown
Let’s talk about what a common-law marriage is. Good ol’ Merriam-Webster defines the noun as:
- a marriage recognized in some jurisdictions and based on the parties’ agreement to consider themselves married and sometimes also on their cohabitation
- the cohabitation of a couple even when it does not constitute a legal marriage.
And, the legal definition of common-law marriage is: a marriage that is without a ceremony and is based on the parties’ agreement to consider themselves married and usually also on their cohabitation for a period and their public recognition of the marriage — compare concubinage.
Concubinage? Huh?
Then, there are additional notes on common-law marriage: most jurisdictions no longer allow this type of marriage to be formed, although they may recognize such marriages formed prior to a certain date or formed in a jurisdiction that does permit common-law marriages.
Confused? You’re not alone.
Seems like our neighbors across the pond are confused on this issue as well, with nearly half the general population believing if you’ve lived together for a certain number of years, you’re considered to be married, at least in the eyes of the law.
Turns out common-law marriage hasn’t been recognized in England since the mid-18th century but does date back to medieval times. It originally came about because of the difficulty officiates had traveling to rural locations to marry people and, for the sake of convenience, couples were allowed to establish a marriage by “common law.”
Unfortunately, it’s not as clear here in the “Colonies.”
And, It Gets Even More Confusing
Probably the most common misconception about common-law marriage is that if two people live together for seven years, they are considered married in the eyes of the law. Currently, not all states recognize common-law marriage. In fact, there are only eight that do: Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas and Utah, while five states will consider a common-law marriage as valid if entered into before the date it was abolished, and one has a statute for inheritance purposes only. Out of these states, only a few recognize common-law same-sex marriages and the rest make the law gender-specific so only a man and a woman can enter into a common-law marriage.
It’s also not so much the number of years you’ve been together (it varies by state), but more how you present yourself as a couple to the world at large. Whether it’s just family and friends, or the entire community, if you present yourself as being married but have never officially said the “I dos” or purchased a marriage license, you may be considered married by common law — at least in the states where it technically still exists.
According to an article written for FindLaw.com, “Common Law Marriage: The Basics,” living together isn’t enough to establish a common-law marriage. Most states have three requirements that must be met before you are considered married by common law. They are:
- You must live together (amount of time varies by state).
- You both must have the legal right or “capacity to marry”
- Both must be 18 years old (varies by state);
- Both must be of sound mind;
- Both must not be married to someone else.
- You both must intend to be married.
- You both must hold yourself out to friends and family as being a married couple such as:
- Taking the same last name;
- Referring to each other in public as “husband” or “wife;”
- Having joint bank accounts;
- Owning joint credit cards.
If that’s not enough to boggle the mind, a common-law marriage does not end when you split. It’s not as easy as that. Whether married in the traditional sense or by common law, a legal divorce is necessary.
Protect Your Rights
Another common misconception concerns property and any rights to such. Basically, rights to protecting a family residence and dividing any assets may be granted only to legally married couples in a state that no longer recognizes common-law marriage. If someone is listed as the sole owner of shared property, it could be no consent is required to sell with no legal requirements in place to split any proceeds.
When a partner dies, all assets may not automatically go to the other partner but to family. Even if common-law married, you may have to prove you are married to inherit and receive benefits (such as insurance, Social Security or pension benefits).
If you happen to live in one of the few states that still has statutes on the books regarding common-law marriage, and it is not your intention to marry, take the appropriate steps to ensure your relationship remains as you define it, stating clearly that neither of you have any intention of entering into a marriage.
It also would be prudent to do the same as a method to prove you have entered into a common-law marriage. A simple agreement (signed and dated by both partners) might save you money, time and heartache in the future.
Teresa Mears writes about the risks unmarried couples take when important matters aren’t clearly drawn out in a relationship in her article for U.S.News.com, 11 Financial Documents Unmarried Couples Should Know About. “Estate planning and medical surrogate documents are essential for everyone, but they’re particularly important for unmarried couples. The sudden death or disability of one partner could cut the other out of critical decisions and jeopardize ownership of shared property and other belongings.”
Mears outlines the agreements one should have in place, such as:
- A will.
- A living trust.
- Beneficiary designations on retirement accounts.
- Durable power of attorney.
- Designation of health care surrogate.
- Advance directive or living will.
- Properly titled property.
- Funeral wishes.
- Life insurance.
- A domestic partner agreement.
- Child custody.
Plan Ahead
It’s true, no one enters into a relationship thinking about the day they may split up — or, worse yet, that one of you might die. But everyone should. And, if you’re choosing to forgo the nuptials and “legal” paperwork, do a little “other” paperwork to ensure you each will be taken care of if things go south, or the unthinkable does happen and you lose the one you love.
The bottom-line is: it’s essential to take a few pragmatic measures when you make the decision to live together rather than walk down the aisle. First, know what the laws are in the state you are living. Second, consider drawing up agreements that define your decisions concerning your relationship and your life together.
Don’t wait until you end up in court to clarify your partnership regardless of what direction you are taking it, married — by common-law or legally — or not.
