Requirements for common law marriage differ on a state-by-state basis. Of those states recognizing common law marriage, typical requirements include: the intent of both parties to be married as husband and wife, both parties holding themselves out to others in their community as husband and wife, and continuous cohabitation. Intent may be as simple as agreeing between each other that they are married. Holding out to others in the community may include referring to one another as husband and wife, using the same last name, or wearing wedding bands. Continuous cohabitation refers to sharing an intended marital home together as intended spouses.

As late as the 1880’s, common law marriages were recognized as valid marriages in more than half of the states. In 2008, only the District of Columbia and nine states recognize common law marriages: Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, and Utah. A minority of states have expressly abolished common law marriage, either in their courts or state legislatures. The remaining states have enacted formal requirements, such as North Carolina’s requirement of both a ceremony and a valid license.

WILL OUR COMMON LAW MARRIAGE BE RECOGNIZED IN NC?

North Carolina, by its legal requirements of marriage, does not allow for the formation of common law marriages by North Carolina residents. However, due to the Full Faith and Credit Clause of the U.S. Constitution, North Carolina may recognize valid common law marriages that were formed in another state when such parties move into North Carolina. Thus, a couple may satisfy the requirements of common law marriage while living together in South Carolina, then when that couple moves to North Carolina, the state of North Carolina recognizes their marriage as valid.

DO COMMON LAW MARRIAGES REQUIRE FORMAL DIVORCE?

Though a minority of states recognize the formation of legal common law marriages, every state requires a formal, legal divorce prior to entering a subsequent marriage. A couple married under common law in Texas are not considered divorced by reason of moving to North Carolina, a state that does not recognize common law marriage. That couple would need to satisfy the residency requirements of North Carolina and file for divorce before either could enter a subsequent marriage in North Carolina. There is no such concept as common law divorce.

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Dan Brady - dbrady@danbrady.com, 919-782-3500