Common-Law Marriages

In times past, particularly the frontier days, it was common for states to consider a woman and man to be married if they lived together for a certain length of time, had sexual intercourse, and held themselves out as husband and wife, even though they never went through a marriage ceremony. Such a marriage was often called a common-law marriage.

Today, at least three-quarters of the states no longer recognize common-law marriages. The remaining states recognize common-law marriages, but with significant restrictions. In order for there to be a legal common-law marriage (in the states that recognize them), the couple must: have the capacity to marry; regard themselves as husband and wife; live together; and clearly represent themselves to others as being husband and wife. Merely living together is not enough to create a marriage.

If a common-law marriage is valid, the partners have the same rights and duties as if there had been a ceremonial marriage. An interesting problem occurs if a couple had a valid common-law marriage in a state that recognizes common-law marriages, but then moved to a state that does not recognize common-law marriages. Would the marriage still be valid? Under principles of conflict of laws, the answer usually would be "yes." Conflict of laws principles generally state that if a contract (in this case a marriage agreement) is valid in the place in which it was created, it will be treated as valid in a state to which the parties move, even though the parties could not have entered into a such an agreement in the new state.

A common-law marriage that is legal may end only with a formal divorce. There is not a United States counterpart to the tradition in Muslim law that allows a divorce to be accomplished by one party to the marriage–in Muslim law, that’s the husband–pronouncing the "Talek": "I divorce thee. I divorce thee. I divorce thee."

Sidebar:   Change of Name

A woman who marries may change her last name (also known as "surname") to that of her husband, but she is not required to do so. In the past, it was widely assumed that a woman would change her last name to her husband’s name when she married. Now society recognizes a woman’s right to take her husband’s name, keep her original name, or use both names. The general rule is that if a woman uses a certain name consistently and honestly, then that is her true name.


Financial Aspects of Marriage

Most property that is acquired during marriage is considered marital or community property. For example, wages earned by the husband and wife during marriage generally are considered marital property. If one or both spouses buy a house or establish a business during the marriage, that usually will be marital property, particularly if the house or business is purchased with the husband’s and wife’s earnings.

Separate property is property that each spouse owned before the marriage. Separate property also includes inheritances and gifts (except perhaps gifts between spouses) acquired during marriage. During and after the marriage, each spouse may keep control of his or her separate property. Each spouse may buy, sell, and borrow money on his or her separate property. Income earned from separate property, such as interest, dividends, or rent generally are classified separate property. However, in some states that recognize community property, these profits may become marital property.

Separate property can become marital property if it is mixed with marital property. If, for example, a wife owned an apartment building before the marriage and she deposited rent checks into a joint checking account, the rent money probably would become marital property, although the building is likely to remain the wife’s separate property as long as she kept it in her name. If the wife changed the title on the building from her name alone to the names of both herself and her husband, that probably would convert the building into marital property. In addition, if one spouse put a great deal of work into the other spouse’s separate property, that could convert the separate property into marital property, or it could give the spouse who contributed the work a right to some form of payback.

A husband and wife may own property together during the marriage. This occurs automatically in community property states. Ten states: Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, as well as Puerto Rico, use the community property system. These jurisdictions hold that each spouse shares equally the income earned and property acquired during a marriage. This is true even if one spouse supplied all the income. In the other states, spouses generally share property under one of the following three forms of co-ownership:


Requirements of Getting Married

The requirements of getting married are simple, although they vary from state to state. In general, a man and woman wishing to marry must obtain a license in the state in which they wish to be married, usually from a county clerk or a clerk of court. The fee usually is low.

Many states require the man and woman to have blood tests for venereal disease–but not for AIDS–before the license is issued. Some states do not require this test if the two already have been living together. If the test shows that a would-be spouse has a venereal disease, certain states will not issue a license. Other states will allow the marriage as long as the couple knows the disease is present.

In some states, the couple must show proof of immunity or vaccination for certain diseases. A few states demand a general physical examination.

If one or both of the parties have been married before, the earlier marriage must have been ended by death, divorce, or annulment (although in some states, if a marriage was never valid, a legal action for annulment may not be necessary).

Parties who wish to marry must have the capacity to do so. That means the man and woman must understand that they are being married and what it means to be married. If because of drunkenness, mental illness, or some other problem, one of the parties lacks capacity, the marriage will not be valid.

Close blood relatives cannot marry, although in some states, first cousins can marry. Of the states that allow first cousins to marry, a few also require that one of the cousins no longer be able to conceive children.

Most, but not all, states require a waiting period, generally one to five days, between the time the license is issued and the time of the marriage ceremony. The purpose of the waiting period is to give a short time to cool off during which the parties can change their minds if they wish. The waiting period can be waived for good reason. For example, if the groom is arriving in the bride’s town only one day before the wedding, but the state has a three-day waiting period, the waiting period probably can be waived by a judge or clerk of court.

In most states, a man or woman may marry at age eighteen without parental consent. Most states also allow persons age sixteen and seventeen to marry with consent of their parents or a judge.

A marriage that is valid in the state or country where it was performed generally will be considered valid in a state or country to which the couple later moves.


Marriage FAQs

Q: What is the legal definition of marriage?

A: Marriage is usually defined as a contract entered into by two people (a man and a woman) demonstrating their intent to be husband and wife in the eyes of the law.

Q: My fiancee and I will be getting married in a few months. What will we need to do in order to be considered legally married?

A: Marriage requirements vary from state to state, but usually include a license, a waiting period, blood tests, minimum ages, a ceremony officiated by a clergyperson or an officer of the court, and witnesses.

Learn more about Marriage Requirements.

Q: Who can perform the marriage ceremony?

A: In most states, a marriage ceremony can be performed by:

  • A judge, magistrate, justice of the peace, or county clerk;
  • A mayor (or deputy mayor); or
  • A religious clergy (minister, rabbi, etc.).

Q: I’m getting married soon, and I want to make sure that my savings account remains my own separate property. How can I do that?

A: You should continue to keep all separate property separate throughout the marriage if you are concerned about keeping it as your personal asset upon your death or divorce. Generally, this means you should not "commingle" property you owned prior to marriage with property you and your spouse acquire during the marriage, or it may become difficult — if not impossible — to legally determine which is which.

Learn more about Marriage, Money, and Property

Q: My future husband and I want to create a prenuptial agreement. How should we go about doing so?

A: Before entering into a prenuptial agreement, both parties must fully disclose their assets, income, and liabilities to the other, and they must enter into the agreement in "good faith," meaning that neither person intends to misrepresent the facts or take advantage of the other. In order to ensure that the premarital agreement will be enforced, it is advisable for both future spouses to be represented by separate attorneys, who can advise them on their rights and responsibilities. In fact, some states’ laws require that each party be represented by a separate attorney in order for a premarital agreement to be valid.

Learn more about Prenuptial Agreements.


What is Marriage?

Most states define marriage as a civil contract between a man and woman to become husband and wife.

The moment a man and woman marry, their relationship acquires a legal status. Married couples have financial and personal duties during marriage and after separation or divorce. State laws determine the extent of these duties. As the United States Supreme Court said about marriage in 1888: "The relation once formed, the law steps in and holds the parties to various obligations and liabilities."

Of course, marriage is a private bond between two people, but it is also an important social institution.

Today, society also recognizes marriage as:

  • a way to express commitment, strengthen intimate bonds, and provide mutual emotional support;
  • a (comparatively) stable structure within which to raise children;
  • a financial partnership in which spouses may choose from a variety of roles. Both spouses may work to support the family, the husband may support the wife, or the wife may support the husband.

As our society becomes more complex, there is no longer a short answer to the question "What is marriage?" Definitions and opinions of the proper functions of marriage continue to change. The women’s rights movement and gay rights movement have changed some people’s ideas of marriage and created new forms of relationships, including "domestic partnerships" and "civil unions" for same-sex couples. Marriage will remain, but it will also continue to evolve.