Am I Common Law Married?
Many times, the solution to domestic problems like custody, property disputes, and visitation of children revolves around whether the parties are married. More times than you would think, when I ask “are you married?” I get the answer “yeah, we’re common law married.” In reality, however, most people have no clue what it takes to establish a common law marriage. In fact, there are many misconceptions floating around about common law marriage. For example, some people think that having a child together and/or that living together for some certain length of time automatically creates a common law marriage. These facts alone, however, do not create a marriage. In fact, a couple can live together for many years and have many children, but still not be common law married.
To create a common law marriage, a person must prove three things: First, both parties must have the legal right or “capacity to marry.” Second, the couple must hold themselves out to family, friends and the community as being married. Third, each person must intend to be married to the other person. A common law marriage is just as legally binding as a ceremonial marriage and it can only be ended by a divorce or by the death of the husband or wife; but how does someone actually prove these three things?
For a person to have the “capacity to marry,” he or she must be an adult (i.e., must have reached his or her 19th birthday). The couple must be of the opposite sex from each other, must be of sound mind, and must not be married to someone else.
To “hold yourself out to the public as being married” usually requires showing that you live outwardly as if you were married. When a judge has to decide whether a couple is common law married, he or she will weigh many factors to decide their “intent to marry.” The judge must rely on the answers to questions like: Did the couple live together? Did the woman use the man’s last name? Did the couple sign contracts together to buy a home or a car? Did the couple file joint tax returns? Did the couple have joint bank accounts? Did the couple refer to each other as husband and wife? Did they share household duties and expenses? Did they have and raise children together?
Intent to marry is probably the hardest element of the three to prove. This is because by the time a judge gets involved, inevitably one party is representing that they had no intent on being married to the other. Usually, the judge will use the answers to the questions above to determine whether each party intended on being married. As stated earlier, the answer to any one question does not determine if you have a common law marriage. When taken together, however, the answers help a judge decide if a couple intended to be married. Ultimately, a person only knows for sure if there is a common law marriage when a judge says so.