Common-Law Marriage - History

Marriage has evolved over the centuries, but some basic features have remained constant. In ancient Rome, it was accomplished by consent of the parties to live together. No forms were required, and no ceremony was necessary. This early Roman model of marriage was displaced when the Catholic Church declared in 1563 that marriages were not valid unless contracted in the presence of a priest and two witnesses. In England, under the Anglican Church, marriage by consent and cohabitation was valid until the passage of Lord Hardwicke's Act in 1753. This act instituted certain requirements for marriage, including the performance of a religious ceremony observed by witnesses.

The American colonies rejected the requirement of a religious ceremony but retained the custom of a ceremony, religious or otherwise. The ancient Roman concept of marriage by agreement and cohabitation was adopted by early American courts as valid under the COMMON LAW.

In the 1800s, state legislatures began to enact laws expressly to prohibit marriage without an observed ceremony and other requirements. Common-law marriage was prohibited in a majority of jurisdictions. However, the FULL FAITH AND CREDIT CLAUSE of the U.S. Constitution requires all states that prohibit it to nonetheless recognize a common-law marriage created in a jurisdiction that allows it. U.S. Const. art. IV, § 1. Laws in all states require a common-law spouse to obtain a DIVORCE before remarrying.

Common-law marriage is allowed in fourteen jurisdictions: Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, and the District of Columbia. The manner in which a state authorizes common-law marriage varies. Pennsylvania maintains a statute that declares that the statutory chapter covering licensed marriage does not affect the recognition of common-law marriage (23 Pa. Const. Stat. Ann. § 1103). In Georgia, the operative marriage statute simply states, "To constitute a valid marriage in this State there must be—1. Parties able to contract; 2. An actual contract; 3. Consummation according to law" (Ga. Code Ann. § 19-3-1).

Several reasons have been offered for recognizing common-law marriage. In some states, including Pennsylvania and Rhode Island, common-law marriage was originally permitted to allow for religious and social freedom. Some state legislatures have noted the private importance of marriage and assailed the insensitivity of governments purporting to regulate such a personal matter. Other states have been reluctant to require licensing and ceremony in consideration of the financial hardship such requirements impose on poor citizens.