When two people choose to live together without the benefit of a legal ceremony, they may or may not have a common law marriage, depending on other circumstances involved. Intent plays a major role in the definition of a common law marriage, so two people can cohabitate but not necessarily have a common law marriage.
Common Law Marriage: Intent
Two people must intend to have a common law marriage in order for it to be considered a legally binding marriage. The following factors will determine whether the two are simply cohabiting or they have a common law marriage.
- They must mutually agree that they will be husband and wife.
- They must have an exclusive and permanent relationship.
- They must appear in public as husband and wife and introduce themselves as such.
- Both parties must have the mental capacity to enter into marriage.
- Each party must be eligible for marriage, that is, they must both be of legal age and not already be married to someone else.
- They must have shared financial assets, such as income tax returns, credit cards, joint bank accounts, and so forth.
- Evidence of anniversary celebrations, such as cards or presents, are indicators.
- For women, using the man’s last name weighs heavily with the courts.
- The testimony of other people can also be a determining factor when proving the existence of a common law marriage.
All the elements of a marriage must exist and if one or more is missing, then it isn’t considered to be a common law marriage. Those couples who live in Oklahoma and meet all the requirements will be considered to be married and will need to file for divorce if the relationship ends.
The date the common law marriage began can be extremely important when considering issues such as child support, so documentation is extremely important. It is especially important in the event that one party tries to disprove the existence of the common law marriage.
Common Law Marriage: Legality
Several states in the U.S. recognize common law marriages. In states where common law marriages are recognized, the partners have the same legal standing before the courts as those couples who have a marriage license.
Most states, even though they do not recognize common law marriages, will recognize a marriage from another state. Thus, if you have a common law marriage in one state and move to another state, your marriage will be valid even if the new state doesn’t recognize common law marriages. Those who reside in a state that does not recognize common law marriages cannot form one unless they move to a state where the institution is recognized.
A common misconception is that the common law marriage needs to last for a set period. This is incorrect. The determining factors are as listed above and the duration is not generally an issue.
Common Law Marriage: Benefits
Those couples who have a common law marriage have the same benefits as those with a marriage license, including:
- Equitable property rights in the event of a divorce
- The right to inherit
- Spousal support in the event of a divorce
Common Law Marriage: Termination
Couples who are in a common law marriage and reside in a state where it is recognized have the same legal protection as those couples who have a marriage license. If the relationship terminates, the couple will need to file for a separation or divorce through the court system.
Christopher S. is an avid blogger from Tulsa, Oklahoma who is passionate about encouraging healthy family values for all communities while working with the Gorospe & Smith Tulsa Divorce Law Firm in his own community.