Common-law Marriage - Essential Distinctions From Statutory Marriage

Essential Distinctions From Statutory Marriage

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Common law and statutory marriage have the following characteristics in common:

  1. Both parties must freely consent to the marriage
  2. Both parties must be of legal age to contract a marriage or have parental consent to marry
  3. Neither party may be under a disability that prevents her or him from entering into a valid marriage - e.g. they must both be of sound mind, neither of them can be currently married, and some jurisdictions do not permit prisoners to marry.

Otherwise, common law marriage differs from statutory marriage as follows:

  1. There is no marriage license issued by a government and no marriage certificate filed with a government
  2. There is no formal ceremony to solemnize the marriage before witnesses
  3. The parties must hold themselves out to the world as husband and wife (this is not a requirement of statutory marriage)
  4. Most jurisdictions require the parties to be cohabiting at the time the common law marriage is formed. Some require cohabitation to last a certain length of time (e.g. three years) for the marriage to be valid. But cohabitation alone does not create a marriage. The parties must intend their relationship to be, and to be regarded as, a legally valid marriage.

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