What is a Common Law Marriage?
A common law marriage is a type of legal marriage that does not require a marriage license or formal registration with the state to be legal and valid. Instead, a common law marriage is established only with evidence of a couple’s agreement to be married and their subsequent cohabitation.
Historically, common law marriages developed as a solution to the problems of tracking and administering state-issued marriage licenses and certificates. In the Anglo-American culture, common law marriages empowered couples to determine their own distinctive marriages, and provided security for couples who would cohabit and establish a family without formal government decrees stating that they were thereby married .
Common law marriages differ from other authorized forms of marriage mainly only in that no state involvement is required to enter into a common law marriage. In these situations, there is often an unclear basis on which the transaction is being created, and it is instead evidenced by the intention of the couple and their actions. In modern American law, states generally require specific elements to legally establish a common law marriage. These requirements are sometimes inconsistent across different states and jurisdictions.
The following elements must generally be present in order for a common law marriage to be recognized:
A Common Law Marriage in North Carolina
North Carolina does not recognize common law marriages. North Carolina became one of the majority of states, with a statutory prohibition against common law marriages in 1897. It is now codified at N.C.G.S. 51-1.2 and provides: (a) No common law marriage entered into after January 1, 1897, shall be valid or recognized in this State. (b) Any prior common law marriage of any person entered into after the removal of the prohibitory [sic] statute shall not be the basis of any right to participate in the intestate estate of a decedent. (c) As used in this section, valid common law marriage includes all common law marriages recognized under common law principles entered into before January 1, 1897. (d) This section does not invalidate a common law marriage entered into before January 1, 1897, which was valid under the common law principles of another state if the marriage was valid under the common law of the State in which it was entered into. (e) Notwithstanding the provision of subsection (a), the fact that a common law marriage is not recognized under the law of the state of its domicile shall not limit or affect the rights of a spouse of a decedent under Article 3 of Chapter 31 of the General Statutes. In other words, prior to 1897, common law marriages may have been valid in North Carolina, but if entered into after January 1, 1897 they were not valid. However, the exception of subsection (c) apparently would permit the application of law from another state to determine the validity of a common law marriage. Twenty-two states permit common law marriages. Alabama, Colorado, Georgia, Idaho Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia recognize common law marriages provided the couple met the legal requirements for such marriages. One state (Georgia) allows common law marriages that were entered into prior to its 1997 repeal of such marriages. Five of the states that recognize common law marriages permit them if a couple merely lives together, without any other proof, or if the parties have a nonmarital (in some states "palimony") contract recognized by the state.
What It Means to Cohabit in North Carolina
Though the State of North Carolina does not recognize common law marriages, couples who think they may be common law married and move to or reside in North Carolina may still face legal implications based on the status of their relationship. For example, these couples could face issues in dealing with property or inheritance after death (as demonstrated by the case of In re Hope!). While a common law marriage may not be valid under North Carolina law, you must look at the law where a couple was living when the relationship began to see if the relationship was actually valid there. Some states have permanently eliminated the common law marriage doctrine, whereas other states still allow it to occur today or they have a grandfathering provision for those who began cohabitating before a certain date. This means that if a couple chooses to marry today, it may not be valid in North Carolina if they began cohabitating at a date in which their relationship would have been valid as a common law marriage in another state. For example, Alabama has eliminated the common law marriage doctrine as of January 1, 2017, but it had previously recognized common law marriages until this effective date so many people could have begun cohabitating as a common law married couple before January 1, 2017 and their common law marriage would have been valid under Alabama law. Because North Carolina has a defense of good faith belief that a couple was common law married before January 1, 2002, if a couple was married under common law in another state where such marriages are valid, then there really may not be any way to know whether the couple will be considered common law married in North Carolina because they started their relationship when it was legal in another state but is not legal in North Carolina anymore. So we may have a grey area which is subject to litigation and variation in outcome between different judges in different counties.
Other Legal Options for North Carolina Couples
While the concept of common law marriage is seemingly a thing of the past in North Carolina, the evolution of family law has created modern alternatives for couples seeking legal protections without the legal status of marriage.
Domestic partnerships are a growing legal recognition that offer couples limited rights and responsibilities, including the right to make medical decisions for a partner if he or she becomes incapacitated. Eligibility requirements generally include living together at least six months, both partners being 18 years of age and competent and both partners of the same gender. In North Carolina, domestic partners may file a certificate of domestic partnership with the register of deeds in the county where at least one partner resides. While domestic partnership is not recognized statewide , Mecklenburg County, Charlotte and Asheville have enacted this alternative.
Lawsuits seeking alimony by one partner against another are becoming increasingly common and, while not exhaustive by any means, can be expensive and damaging. Cohabitation agreements, specifically separate property agreements, can be used by unmarried couples to address property and financial issues in the event they split up. Such agreements do not need to be filed in the public record, but should be reviewed by an attorney, just as pre-nuptial agreements would be.
While the necessity of these legal steps may not be apparent at first, cohabitating couples might find these protections useful when faced with a worst-case scenario or as they age and become more vulnerable.
Other States and Considerations for Moving
Within a national context, North Carolina’s nonrecognition of common law marriage creates areas of potential conflict between this state and other states that do recognize such marriages. Many states now have statutes that prohibit the recognition of a common law marriage created in another state, or have a strong public policy prohibiting the same. These statutory prohibitions raise interesting questions of comity where a couple domiciled in a common law state (like Texas or Colorado) moves to North Carolina. Since comity is only a rule of thumb, there is no guarantee a North Carolina court will accord full faith and credit to a common law marriage created in another state. The degree to which a North Carolina court might address this issue, or even be receptive to a motion to enforce a foreign judgment, is currently an open issue. At least one North Carolina Court of Appeals opinion suggests it is possible. In Hithon v. Hithon, 177 N.C.App. 773 (2006), the Court of Appeals took great pains to catalog and discuss the law of at least 31 other states on the question of whether a common law marriage could be terminated through a decree of divorce. After lengthy discussion of foreign law, the North Carolina court ultimately found that it had jurisdiction to terminate the common law marriage between the parties.
What this means for couples moving between states is potentially far-reaching. For example, what if a common law relationship in Georgia were to come to an end through a non-procedural separation agreement and consent to divorce in North Carolina? What if a common law relationship in Tennessee were to move to North Carolina, where only one party sought to obtain a post separation support or equitable distribution order? What if a common law couple were to move from California to North Carolina, and one party were to pass away?
There are some legal strategies to consider that could affect tractable solutions to these issues. One potential strategy is to make a claim under Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). This Act, subject to specific procedural requirements, enables a court with jurisdiction over minor children to make a custody order that may be enforced in any other U.S. state. Because common law spouses often have minor children in common, the UCCJEA might be used in some circumstances as a vehicle to determine child custody, child support, or equitable distribution. The problem with this strategy is that the UCCJEA only addresses issues feasible to a child support case; issues of alimony, spousal support, or equitable distribution are not determined by the UCCJEA. Another potential strategy is to file a "declaration of common law marriage" with the appropriate county registers of deeds, so that it becomes public record. However, the privity of the parties to such a declaration could later be disputed, especially if the parties had separated or divorced before filing the declaration. Additionally, this strategy would be unavailing in the case of out of state parties who might wish to inform future spouses that they had a prior matrimonial bond.
Taking it to the Legal Professionals
When it comes to establishing a romantic union with legal implications, couples in the state must make sure they understand their marital status. What if you have begun to identify yourself as married based on a common law relationship? And what if your common law relationship is called into question? You may be concerned about what legal ramifications this could entail for your lives.
These are not uncommon concerns among couples in North Carolina. If you have questions regarding your marital status in North Carolina, you would be wise to seek legal advice from a qualified professional.
In addition to seeking legal advice, you should explore the legal resources available in your area such as family and domestic relations lawyers and related associations. A personal meeting will help you to understand more about your options. In your meeting , you might be encouraged to ask such questions as:
• What should I know about the legal process of confirming my marriage?
• Can you provide me with more information on when and how my marital status could be challenged in a court of law?
• What advice do you have to help me and my partner better prepare for our future as a married couple?
• How can you guide us through the common law marriage process?
• What information do you have about how the state of North Carolina views common law marriage today?
From there, you will have the information you need to make informed decisions about your next steps in your life together.