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I will use Texas as an example, but I'd be interested in any others...

Per this link, a couple is considered married under common law in Texas if they:

1.) Agree to be married, 2.) Live together as a couple, and 3.) Tell others ("hold themselves out") that they are married

It also states that in order to get out of such a marriage:

"Common law marriages in Texas have the same legal status as a ceremonial marriage." And "if the common law marriage doesn’t work out, you’ll have to get a formal divorce to end it.

However, to get a divorce:

... the couple must first prove to the court that they were married. The person that first files papers with the court has to prove that there was a common law marriage.

Recognizing that if there are children involved, or if one partner contests the divorce, things get messy and need to be sorted out legally. However, what if there are no children, and the couple mutually decide to not follow through with formal wedding plans, and instead agree to simply part ways and pretend that nothing happened?

There is no paper trail. No proof that anything ever happened except perhaps jointly signed leases showing that at one point they lived together. No reason for either to assert a claim over the other for reasons of alimony, custody, or asset disputes. Neither has any interest or desire in attempting to prove to the state that they were married under common law. Really their situation is no different from any other co-habitating and/or engaged couple who later split up before completing an intended marriage ceremony.

To title question then, would the state have any interest or legal right to assert that having once met conditions that would allow them to be considered married, that they are in fact still married despite their objections to that legal status and to being characterized as such? Could both later legally claim to be single and never married?

Bonus points for addressing how "just kidding" or "I was lying" could be used to counter the issue of "holding out". Also bonus points for addressing how taking the 5th might assessed in answering questions around status, particularly in the context of applying for a marriage license later to someone else.

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    This is one of the reasons I like HNQ that much - I had no idea that "common-law marriage" is something that exists (I am French, we do not have common law)
    – WoJ
    Apr 29, 2023 at 12:53
  • Just to be clear, in your "part ways and pretend that nothing happened" scenario, are we still assuming that the third prong has been met in the past (i.e. the couple had held themselves out as married)? If that were the case, why would they have abandoned their "formal wedding plans"? You don't plan a wedding when you're already married.
    – Brian
    Apr 29, 2023 at 18:21
  • @Brian, If a couple is living together and planning to get married later they might tell certain people they already are married. (You know, to cover their shame. If there is even such a thing any longer...) Apr 29, 2023 at 23:10
  • Datapoint (or not) :-) : In NZ if a couple cohabit for 2+ years and then separate then their property is covered by the same protections as if they had been formally married. So eg if a person owns a house and a partner lives with them for 2+ years then on separation the partner is typically due a 50% share in the house. The same applies to other property owned by either. There are no doubt legal complications that I am unaware of. || I assume that a pre-non-nuptial agreement would prevent this happening. As would a home being held in a legal "trust." Apr 30, 2023 at 13:49
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    @RussellMcMahon, but what makes them a “couple” vs room mates? Could a renter claim 50% of a house once past the 2 year mark? Surely not, but how does the law differentiate objectively? Apr 30, 2023 at 15:24

4 Answers 4

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would the state have any interest or legal right to assert that having once met conditions that would allow them to be considered married, that they are in fact still married despite their objections to that legal status and to being characterized as such? Could both later legally claim to be single and never married?

Yes. For example, the state could prosecute someone for bigamy if there was a common law marriage that was not dissolved and someone remarried. There are all sorts of other circumstances (e.g. paternity, government benefit eligibility, taxation) where the government might want to prove that you have a common law marriage as well.

It is certainly possible to ignore the law and not get caught. But, generally, the agreement of the parties requirement for common law marriage means it doesn't happen very often. And, usually, at least one person in a married couple has an economic incentive to not ignore the existence of a marriage even if the couple had no children.

Even if they don't have much in the way of assets at the time they separate, twenty years later there might be considerable assets acquired by the parties during marriage and a presumption of substantial alimony and inheritance rights. So someone who was O.K. with "forgetting it" when they were 23 might change their mind when they are 43 or when you are dead and a probate case is pending. There is no statute of limitations to establish the existence of a common law marriage.

In short, ignoring the existence of a common law marriage is high risk and low reward.

If there is ambiguity, one quick and dirty process as opposed to filing an action for annulment, is to file an action for divorce, apprise the court of the circumstances, and have it authoritatively dismiss the divorce case on the merits by ruling that the parties aren't married

I've done that for a client once, in the face of fairly strong evidence that they were married, when the parties to the divorce case both told the court under oath that they never believed themselves to be married to each other at any time.

One countervailing force is that issuance of a marriage license to someone creates a rebuttable presumption that they were not married at the time it was issued. This can be overcome with a showing of the existence of a common law marriage, but it makes the "proving a negative" of non-marriage easier, especially in cases when the parties are now dead and this is necessary to know for paternity or inheritance purposes.

Finding proof of even a marriage license marriage (or a divorce) can be difficult as lots and lots of jurisdictions can get you married or divorced (not all in the U.S.A.), but there isn't a national comprehensive index of marriages in the United States.

For what it is worth, France solves this problem by requiring copies of marriage certificates, divorce decrees, and death certificates to be filed where someone was born, but common law countries never had a comparable low tech system to solve the indexing problem.

Also bonus points for addressing how taking the 5th might assessed in answering questions around status, particularly in the context of applying for a marriage license later to someone else.

There is nothing special about it.

You can refuse to testify about possible prior common law marriages if you subsequently have a marriage certificate issued. Keep in mind that you can only plead the 5th without consequences in a criminal case. In a civil matter, you can plead the 5th but this usually results in an adverse inference for purposes of the civil case that you committed the crime implicated by your refusal to testify on that ground.

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There is no common-law marriage in

Marriage in Australia is a creature of statute and a Federal power (first exercised in 1961]. Marriage begins with the ceremony and ends with death or divorce.

De facto relationships are recognised in the Family Law Act

The criteria for being in a de facto relationship are spelled out in s4AA:

  • Not married
  • Not related
  • “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis”

A de facto relationship does not have the same rights as a marriage:

When de facto couples decide to separate, an application can be made to the Family Court and Federal Circuit Court, in the same way as married couples, to resolve any financial matters, property divisions and custody disputes.

However, people in a de facto relationship must satisfy the court that the relationship was genuine, and then meet one of the following four criteria:

  • the relationship must have lasted for at least two years
  • there is a child in the relationship
  • the relationship is registered under a prescribed law
  • one party has contributed substantially to the relationship and, if an order was not made, there would be a grave injustice

De facto couples must also apply for court orders within two years of the relationship ending. Outside this time, a person will need to prove hardship for the case to be heard. In contrast, married couples have no such time limit. While they must apply for a property settlement within 12 months of divorce, this can be extended with consent.

Whether you are in a de facto relationship or not is a matter of objective fact, not the subjective opinion of the people in it. However, the issue only comes up when at least one of the parties makes an application to the court.

It is also worth noting that a person can only be in one marriage at a time but several de facto relationships.

Other laws may have different definitions

The way other laws treat marriages and de facto relationships is a matter for those laws. Some treat them the same, some treat them differently.

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A common law marriage can exist in Montana, given certain conditions. A couple could jointly seek legal recognition of the marriage for some reason, and there is a court form to be signed and notarized which constitutes proof of the marriage. The courts can also recognize a common law marriage if only one of the parties petitions and prevails in court, provided they provide sufficient proof of such a marriage. Geertz v. Geertz in an example where a spouse failed to prove the (disputed) existence of a common law marriage. In this hypothetical case, both parties appear to agree in not purporting a common law marriage ("if they do not want it", rather than "if one of them does not want it").

The presumption of common law marriage is a disputable presumption under 26-1-602(30) MCA. Suppose a couple decided to split up without a formal divorce, one or both of them then married, and the county prosecutor wants to prosecute that person for bigamy. The state must prove that the accused is married to another and that he/she does not reasonably believe themselves to be legally eligible to remarry, noting that under Montana law, in criminal cases guilt must be established beyond reasonable doubt. The question asserts that

There is no paper trail. No proof that anything ever happened except perhaps jointly signed leases showing that at one point they lived together. No reason for either to assert a claim over the other for reasons of alimony, custody, or asset disputes.

which means for example that they did not file the affidavit proving a common law marriage, they each filed taxes singly, they never filed paperwork purporting that the other was their spouse. However there were some instances where one or the other indicates in conversations that the other was "their spouse" – as in Geerts v. Geertz. In that case, there was a bit of evidence supporting the claim for marriage, but not enough even for a civil case. Under the assumptions of the question, there would not be sufficient proof that a common law marriage exists to obtain a criminal conviction. A debtor might have in mind going after one of the two for a debt, but "A husband or wife, solely on the basis of being a spouse, is not answerable for the acts of the other spouse or liable for the debts contracted by the other spouse" except for "the expenses for necessities of the family". Supposing that there is a debt for family necessities, the debtor would have to prove by a preponderance of the evidence that there exists a marriage. The court, as an arm of the state, could then possibly find that a marriage exists for the purpose of collecting on that debt.

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Child support by application of the child is a circumstance in which a person other than the couple would have a legal interest in having a spousal relationship recognized. The state would also have an interest via court order and the family maintenance enforcement program.

The Family Law Act establishes that "Each parent and guardian of a child has a duty to provide support for the child" (s. 147). An application for child support may be made by the child (s. 149(2)(b)).

Whether a person is a "spouse" is relevant for the establishment of presumptions of parentage or status as stepparent (both relevant for establishing entitlement to child support). This is not the "state" (in the sense of executive government) imposing the recognition of the relationship, but the relationship would be recognized by the court order granting child support.

No other obligations related to spousal status under the Family Law Act are forced upon parties when they are not in dispute. The default is that they will become spouses after having lived with each other in a marriage-like relationship continuously for at least two years, but if no dispute ever arises, and the parties are in agreement as to their assets etc., then the state and court will not be involved. Of course, one cannot predict whether there will be a dispute or not, so this paragraph should not be taken to suggest that a couple need not formalize any agreements they have regarding property division, spousal support, etc.

For income tax purposes, parties become spouses when they have been living together in a conjugal relationship for twelve months (see the Income Tax Act, s. 248(1)). One cannot opt out of this status and one must declare it accurately to Revenue Canada. See e.g. Molnar v. The Queen, 2006 TCC 58.

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    Sorry, but in stating "Recognizing that if there are children involved..." I'm implying that there are none. I will word this more clearly. Apr 28, 2023 at 23:11

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