Common-Law Marriage

A common-law marriage has three basic features. When a common-law marriage is challenged, proof of the following elements is critical in most jurisdictions.

1. A present agreement to be married. The parties must announce to each other that they are married from that moment forward. Specific words are not mandated, but there must be evidence of an agreement to be married. Proof may consist of CIRCUMSTANTIAL EVIDENCE, including evidence that the partners have cohabitated and held themselves out to the public as being married. However, neither cohabitation nor a public holding out constitutes sufficient proof to establish the formation of a common-law marriage, either by themselves or taken together. An agreement to marry must be proved by the party asserting marriage.
2. Cohabitation. The parties must actually live together in order to support a claim of common-law marriage. Whether maintenance of a separate home by one of the parties will nullify a common-law marriage is a QUESTION OF FACT and depends on the circumstances of the particular case.
3. Public representations of marriage. The couple must consistently hold themselves out to the public as married. A married couple is expected to tell people that they are married. They should also file joint tax returns and declare their marriage on other documents, such as applications, leases, and birth certificates.