shacking up

Common-law marriage

Common-law marriage (or common law marriage), sometimes called de facto marriage, informal marriage or marriage by habit and repute, is a form of interpersonal status which is legally recognized in some jurisdictions as a marriage even though no legally recognized marriage ceremony is performed or civil marriage contract is entered into. A common law marriage is legally binding in some jurisdictions but has no meaning in others. In some jurisdictions without true common law marriages (e.g. Hungary), the term "common law marriage" is used as a synonym for non-marital relationships such as domestic partnership or reciprocal beneficiaries relationship (i.e. "shacking up").

Essential distinctions

The essential distinctions of a common law marriage are:

  1. Common-law marriages are not licensed by government authorities, although they may be recorded in the public records of some governmental entities.
  2. Common-law marriages are not solemnized.
  3. Cohabitation alone does not create a common-law marriage; the couple must hold themselves out to the world as husband and wife; and
    1. There must be mutual consent of the parties to the relationship constituting a marriage
    2. Both parties must be of legal age to enter into a marriage or have parental consent to marry
  4. In some jurisdictions, a couple must have cohabited and held themselves out to the world as husband and wife for a minimum length of time for the marriage to be recognised as valid.

There is no such thing as "common-law divorce". Once a marriage is validly contracted, whether according to statute or according to common law, the marriage can only be dissolved by a legal proceeding in the pertinent trial court (usually family court or probate court). In Texas a new provision was added to the Family Code, either partner in a common law marriage has two years after separation to file an action in order to prove that the common law marriage existed. To use the provision, you must have been separated after September 1, 1989.

Since the mid-1990s, the term "common-law marriage" has been used in parts of Europe and Canada to describe various types of domestic partnership between persons of the same sex as well as persons of the opposite sex. Although these interpersonal statuses are often, as in Hungary, called "common-law marriage" they differ from true common-law marriage in that they are not legally recognized as "marriages" but are a parallel interpersonal status, known in most jurisdictions as "domestic partnership", "registered partnership", or "civil union".

History

In medieval Europe, marriage came under the jurisdiction of canon law, which recognised as a valid marriage one where the parties stated that they took one another as wife and husband, even in absence of any witnesses.

The Council of Trent (convened 1545–1563) ruled that in future a marriage was only valid in Roman Catholic countries if it was witnessed by a priest of the Roman Catholic Church or, if obtaining a priest were impractical, by other witnesses. This ruling was not accepted in the newly Protestant nations of Europe, nor by Protestants who lived in Roman Catholic countries or their colonies in the Americas or elsewhere, nor by Eastern Orthodox Christians.

Common law marriages were abolished in England and Wales by the Marriage Act 1753. The Act required marriages to be performed by a priest of the Church of England unless the participants in the marriage were Jews or Quakers. The Act applied to Ireland after the Act of Union 1800, but the requirement for a valid marriage to be performed by a Church of England priest created special problems in predominantly Roman Catholic Ireland. The law did not provide an exception. The Act did not apply to Scotland because by the Acts of Union 1707 Scotland retained its own legal system. To get around the requirements of the Marriage Act, such as minimum age requirements, couples would go to Gretna Green, in southern Scotland, to get married under Scots law.

The Marriage Act of 1753 also did not apply to Britain's overseas colonies of the time, so common law marriages continued to be recognised in the future United States and Canada. In the United States, new common law marriages arising in the state are still recognised in Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah and the District of Columbia, and in several Canadian provinces. Almost all U.S. states recognize common law marriages validly entered into at a time and place where common law marriage was recognized, although some impose certain public policy exceptions to the recognition of common law marriages involving minors or persons who would not be entitled to marry in that state for some reason.

All countries in Europe have now abolished "marriage by habit and repute", with Scotland being the last to do so in 2006.

Australia

In Australia the term de facto relationship is often used to refer to relationships between persons who are not married but are effectively living in certain domestic circumstances. The legal term for such relationships varies by state and territory (however common-law marriage is not used anywhere in Australia):

State Name Law
New South Wales "Domestic relationship", encompassing "de facto relationships" and "close personal relationships" Property (Relationships) Act 1984
Victoria "Domestic relationship", defined to mean "de facto relationships" Property Law Act 1958 Part IX
Queensland "De facto relationship" Property Law Act 1974
South Australia "Close personal relationship" Domestic Partners Property Act 1996
Western Australia "De facto relationship" Family Court Act 1997, Part 5A
Tasmania "Personal relationship", encompassing "significant relationships" and "caring relationships" Relationships Act 2003
Australian Capital Territory "Domestic relationship" and "domestic partnership" Domestic Relationships Act 1994, Legislation Act 2001 s 169
Northern Territory "De facto relationship" De Facto Relationships Act 1991

Although property aspects of these relationships are dealt with under state law, the law relating to children of such relationships is contained in the federal Family Law Act 1975. Most laws dealing with taxation, social welfare, pensions, etc., treat de-facto marriages in the same manner as solemnized marriages.

The federal Marriage Act 1961 provides for marriage, but does not recognize 'common law marriages'.

Canada

In Canada, the legal definition and regulation of common law marriage fall under provincial jurisdiction. A couple must meet the requirements of their province's Marriage Act for their common-law marriage to be legally recognized.

According to the Canada Revenue Agency, as of 2007, a common-law relationship is true if at least one of the following applies:

a) the couple have been living in a conjugal relationship for at least 12 continuous months;

b) the couple are parents of a child by birth or adoption; or

c) one of the couple has custody and control of the child (or had custody and control immediately before the child turned 19 years of age) and the child is wholly dependent on that person for support.

For a full, up to date CRA description go here: Marital Status

In many cases common law couples have the same rights as married couples under federal law. Various federal laws include "common-law status," which automatically takes effect once two people (of any gender) have lived together in a conjugal relationship for five full years. Common-law partners may be eligible for various federal government spousal benefits. As family law varies between provinces, there are differences between the provinces regarding the recognition of common-law marriage.

In 1999, after the court case M. v. H., the Supreme Court of Canada decided that same-sex partners would also be included in common-law relationships.

Ontario

In Ontario, the Ontario Family Law Act specifically recognizes common-law spouses in sec. 29, dealing with spousal support issues; the requirements are living together for no less than three years or having a child in common and having "cohabitated in a relationship of some permanence". The three years must be continuous; however a breakup of a few days during the period will not affect a person's status as common law. However, the part that deals with marital property excludes common-law spouses, as sec. 2 defines spouses as those who are married together or who entered into a void or voidable marriage in good faith. Thus common-law partners do not always evenly divide property in a breakup, and the courts have to look to concepts such as the constructive or resulting trust to divide property in an equitable manner between partners. Another difference that distinguishes common-law spouses from married partners is that a common-law partner can be compelled to testify against his or her partner in a court of law.

Québec

Québec, which unlike the other provinces has a Civil Code, has never recognized a common-law partnership as a kind of marriage. However, many laws in Québec explicitly apply to common-law partners (called "de facto unions" or conjoints de fait) as they do to spouses. Same-sex partners can also have recognized de facto unions or conjoints de fait in Québec. .

A 2002 amendment to the Civil Code of Québec recognizes a type of domestic partnership called a civil union that is similar to common-law marriage and is likewise available to same-sex partners.

Other provinces

The requirements in some other provinces are as follows:

In British Columbia and Nova Scotia, a couple must cohabit for two years in a marriage-like relationship.

In New Brunswick, a couple must live together for 3 years or have a natural or adopted child together.

In Alberta, common-law marriage has been subsumed since 2003 under the terms of the Adult Interdependent Relationship Act, which may additionally apply to any two unrelated people living together in a mutually dependent relationship for three years.

United Kingdom

England and Wales

The term "common-law marriage" is frequently used in England and Wales; however such a "marriage" is not recognized in law, and it does not confer any rights or obligations on the parties. See also English law. Genuine (that is, legal) common-law marriage was for practical purposes abolished under the Marriage Act 1753. Prior to that point, marriage was by consent under Roman Law. "Common-law marriage" survives in England and Wales only in a few highly exceptional circumstances, where people who want to marry but are unable to do so any other way can simply declare that they are taking each other as husband and wife in front of witnesses. British civilians interned by the Japanese during World War II who did so were held to be legally married.

Unmarried partners are recognised for certain purposes in legislation: e.g., for means-tested benefits. For example, in the Jobseekers Act 1995, '"unmarried couple" means a man and woman who are not married to each other but are living together as husband and wife otherwise than in prescribed circumstances.

Scotland

Under Scots law, there have been several forms of "irregular marriage":

  1. Irregular Marriage by declaration de presenti—Declaring in the presence of two witnesses that one takes someone as one's wife or husband.
  2. Irregular Marriage conditional on consummation.
  3. Irregular Marriage with co-habitation and repute.

The Marriage (Scotland) Act 1939 provided that the 1st and 2nd forms of Irregular marriage could not be formed on or after 1st January 1940. However, any Irregular Marriages contracted prior to 1940 can still be upheld. This act also allowed the creation of Regular Civil Marriages in Scotland for the first time. (The civil-registration system started in Scotland on 1st January 1855.) Until this act the only Regular Marriage available in Scotland was a religious marriage. Irregular Marriages were not socially accepted and many people who decided to contract them did so where they were relatively unknown. In some years up to 60% of the marriages in the Blythswood Registration District of Glasgow were "Irregular".

In 2006 "marriage by cohabitation with habit and repute" was also abolished in the Family Law (Scotland) Act 2006. Until that act had come into force, Scotland remained the only European jurisdiction never to have totally abolished the old style common-law marriage. For this law to apply, the minimum time the couple have lived together continuously had to have exceeded 20 days.

As in the American jurisdictions that have preserved it, this type of marriage can be difficult to prove. It is not enough for the couple to have lived together for several years, but they must have been generally regarded as husband and wife: e.g., their friends and neighbours must have known them as "Mr. and Mrs. So-and-so" (or at least they must have held themselves out to their neighbours and friends as Mr. and Mrs. So-and-so). And, as with American common-law marriages, it is a form of lawful marriage, so that nobody can say they are common-law spouses, or husband and wife by cohabitation with habit and repute, if one of them was legally married to somebody else when the relationship began.

It is a testament to the influence of English and American legal thought that, for a study conducted by the Scottish Executive in 2000, 57% of Scots surveyed believed that couples who merely live together have a "common-law marriage". In fact, that term is unknown in Scots law, which uses "marriage by cohabitation with habit and repute". "Common-law marriage" is an Anglo-American term. Otherwise, men and women who otherwise behave as husband and wife do not have a common-law marriage or a marriage by habit and repute merely because they set up housekeeping together, but they must hold themselves out to the world as husband and wife. (In many jurisdictions, they must do so for a certain length of time for the marriage to be valid.) The Scottish Survey is not clear on these points. It notes that "common-law marriage" is not part of Scots law, but it fails to note that "marriage by cohabitation with habit and repute"—which is the same thing but in name—is part of Scots law.

Israel

Israeli law recognizes common-law marriage (ידוע בציבור) particularly since an apparatus for civil marriage is absent, and many couples choose to avoid a religious marriage or are barred from it. Israeli law makes provisions for common-law spouses, but is murky as to the period of time that needs to pass before a relationship can be recognized as common-law marriage. Unlike marriage, the spouses need to provide proof of their relationship in order to gain access to the various benefits and rights which accompany a common-law marriage.

United States

The tradition of common-law marriage was affirmed by the United States Supreme Court in Meister v. Moore (96 U.S. 76 (1877)), which ruled that Michigan had not abolished common law marriage merely by producing a statute establishing rules for the solemnization of marriages. Since Michigan did not require marriages to be solemnized, the court held, the right to marry that existed at common law existed until state law affirmatively changed it. The Court held that in order to bar common-law marriage, a state's general marriage statute must indicate that no marriage would be valid unless the enumerated statutory requirements were followed.

Common-law marriage can still be contracted in 11 states and the District of Columbia, can no longer be contracted in 26 states, and was never permitted in 13 states. The requirements for a common-law marriage to be validly contracted differ from state to state. Nevertheless, all states including those that have abolished the contract of common-law marriage within their boundaries recognize common-law marriages lawfully contracted in those jurisdictions that still permit it. Some U.S. states, however, such as Colorado, more rigorously enforce public policy exceptions to their general duty to recognize foreign state or foreign country marriages valid where entered into in the case of common law marriages.

There is no such thing as "common-law divorce" that is, you can't get out of a common-law marriage as easily as you can get into one. Only the contract of the marriage is irregular; everything else about the marriage is perfectly regular. People who marry per the old common law tradition must petition the appropriate court in their state for a dissolution of marriage.

Texas, however, permits common law marriages to be effectively annulled, if not established legally within a specified time after the parties separate. Likewise, common law legal presumptions that a person who obtains a marriage license has obtained a divorce from all prior marriages before remarrying, in the absence of proof to the contrary, can have a similar practical effect.

While a number of U.S. states recognize either same sex marriage, or domestic partnerships with the same legal incidents as marriage, no U.S. state currently recognizes same sex common law marriages. A federal statute purports to permit any U.S. state to refuse to recognize a same sex marriage, whether or not it is a common law marriage, from another state.

See also

References

External links

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