Common law marriage can be a confusing concept, and it has gradually been disappearing as states limit or end common law marriage, if they ever allowed it at all. Common law marriage tends to arise in a legal dispute for purposes of divorce or when someone dies. Individuals often wonder whether being together for a certain period of time, or holding themselves out as married, makes a couple common law married. And the answer is, it depends.
In two of the jurisdictions in which the Zavos Juncker Law Group practices law, Maryland and Virginia, common law marriage is not recognized as a type of marriage that can be created within state or commonwealth borders. However, because of the Full Faith and Credit Clause of the United States Constitution, Maryland and Virginia, as well as other U.S. jurisdictions, will afford full and faith and credit to a valid common law marriage properly entered into in a jurisdiction where those marriages are permitted, unless such a marriage is strongly against a state’s public policy.
Nine states and the District of Columbia allow common law marriages to form within their jurisdiction and afford those common law marriages the same rights as marriages entered into with a marriage license. Certain jurisdictions require a couple to live together for a certain period of time, to hold themselves out as married, for them to have a reputation as married, to obtain a certificate indicating they are common law married, or to consummate the marriage. Some states, in limiting common law marriages, also only recognize common law marriage for probate purposes – not for purposes of dissolving such a marriage.
In the District of Columbia, common law marriage is recognized by case law, not by any statute. The District is one of the easiest jurisdictions in which to become common law married. Common law marriage requires two elements to form in the District – express mutual agreement to be married per verba praesenti and cohabitation. Cohabitation is the easier of the two elements to prove, and unlike other common law jurisdictions, there is no requirement for how long the couple must cohabitate. Express mutual agreement is trickier to establish. There needs to be a moment in time that can be identified as when the couple agreed to be married. But there are lots of elements that go into what that moment meant. And whether the couple uses terms like “spouse” or “husband” or “wife” can be part of that consideration, as well as how they act or hold themselves out. Of note, these concepts apply even if they are a same-sex couple. Within the LGBT community specifically, District couples that had a commitment ceremony many years ago, or even just exchanged private promises to be wed, may very well be common law married and not realize it.
Are, or were, you a resident of the District of Columbia? Do you think you may be common law married in the District of Columbia? Please give us a call. Being common law married can have critical effects on you and your spouse for estate planning purposes, dissolution of the marriage, including alimony and property rights, and other issues.
Eva N. Juncker is a partner and Emily Neuhausen an associate at Zavos Juncker Law Group, PLLC, a law firm practicing family law in D.C., Maryland and Virginia. Reach them via zavosjunckerlawgroup.com.