Common-law Marriage in The United States - Availability By State

Availability By State

Common-law marriage can still be contracted in nine states (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Utah and Texas) and the District of Columbia. New Hampshire recognizes common-law marriage for purposes of probate only, and Utah recognizes common-law marriages only if they have been validated by a court or administrative order.

Note there is no such thing as "common-law divorce" — that is, you cannot get out of a common-law marriage as easily as you can get into one. Only the contract of the marriage is irregular; everything else about the marriage is perfectly regular. People who marry per the old common law tradition must petition the appropriate court in their state for a dissolution of marriage.

The situation in Pennsylvania became unclear in 2003 when an intermediate appellate court purported to abolish common-law marriage even though the state Supreme Court had recognized (albeit somewhat reluctantly) the validity of common-law marriages only five years before. The Pennsylvania legislature resolved most of the uncertainty by abolishing common-law marriages entered into after January 1, 2005. However, it is still not certain whether Pennsylvania courts will recognize common-law marriages entered into after the date of the Stamos decision and before the effective date of the statute (i.e., after September 17, 2003, and on or before January 1, 2005), because the other intermediate appellate court has suggested that it might not follow the Stamos decision.

Common-law marriages can no longer be contracted in the following states, as of the dates given: Alaska (1917), Arizona (1913), California (1895), Florida (1968), Georgia (1997), Hawaii (1920), Idaho (1996), Illinois (1905), Indiana (1958), Kentucky (1852), Maine (1652, when it became part of Massachusetts; then a state, 1820), Massachusetts (1646), Michigan (1957), Minnesota (1941), Mississippi (1956), Missouri (1921), Nebraska (1923), Nevada (1943), New Mexico (1860), New Jersey (1939), New York (1933, also 1902–1908), North Dakota (1890), Ohio (1991), Oklahoma (Nov. 2010), Pennsylvania (2005), South Dakota (1959), and Wisconsin (1917).

The following states never permitted common-law marriages: Arkansas, Connecticut, Delaware, Louisiana, Maryland, North Carolina, Oregon, Tennessee, Vermont, Virginia, Washington, West Virginia, and Wyoming. Note that common-law marriage was never known in Louisiana, which is a French civil or code law jurisdiction, not an English common law jurisdiction. As such, it is a former Council of Trent jurisdiction.

Nevertheless, all states — including those that have abolished the contract of common-law marriage within their boundaries — recognize common-law marriages lawfully contracted in those jurisdictions that permit it. This is because all states provide that validity of foreign marriage is determined per lex loci celebrationis - that is, "by law of the place of celebration." Thus, a marriage validly contracted in Ohio, including common-law marriages entered into before that state abolished new common-law marriages in 1991, is valid in Indiana, even if it could not be legally contracted in Indiana because Ohio law is the basis of its validity. However, a marriage that was not lawfully contracted in Ohio would not be valid in Indiana even if it could have been lawfully contracted there, by the same principle.

Common law marriage determinations frequently refrain from identifying a specific date of marriage in common law marriage cases when this is not necessary, because often, there is no one marriage ceremony that establishes this date. Even when a relationship begins in a state that does not recognize common law marriage, a common law marriage between the parties is often recognized if that relationship continues at a time when the parties relocate to a state that does recognize common law marriage. It is not uncommon for someone to claim to be a spouse based upon time the couple spent together in a common law marriage state even after the couple leaves that state. The case law does not definitively establish whether a brief presence in a common law marriage state by a couple who otherwise are eligible to have a common law marriage, that does not establish domicile in that state, gives rise to a common law marriage that must be recognized in a state that does not itself have common law marriage.

Additionally, some courts have held that all marriages performed within the U.S. must be valid in all states under the Full Faith and Credit Clause of the U.S. Constitution. However, none of the cases to date has actually used the Clause to validate a sister-state marriage, and the question shows no sign of reaching the U.S. Supreme Court - whose decision would apply nationally, not just locally or within a federal circuit.