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Common-law marriage, also known as non-ceremonial marriage, marriage, informal marriage, or marriage by habit and repute, is a legal framework where a couple may be considered
married Marriage, also called matrimony or wedlock, is a culturally and often legally recognized union between people called spouses. It establishes rights and obligations between them, as well as between them and their children, and between t ...
without having formally registered their relation as a civil or
religious Religion is usually defined as a social- cultural system of designated behaviors and practices, morals, beliefs, worldviews, texts, sanctified places, prophecies, ethics, or organizations, that generally relates humanity to supernatur ...
marriage. The original concept of a "
common-law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
marriage" is one considered valid by both partners, but not formally recorded with a state or religious registry, nor celebrated in a formal civil or religious service. In effect, the act of the couple representing themselves to others as being married and organizing their relation as if they were married, means they are married. The term ''common-law marriage'' (or similar) has wider informal use, often to denote relations that are not legally recognized as marriages. It is often used colloquially or by the media to refer to cohabiting couples, regardless of any legal rights or religious implications involved. This can create confusion in regard to the term and to the legal rights of unmarried partners (in addition to the actual status of the couple referred to).


Terminology

Common-law marriage is a marriage that takes legal effect without the prerequisites of a marriage license or participation in a marriage ceremony. The marriage occurs when two people who are legally capable of being married, and who intend to be married, live together as a married couple and hold themselves out to the world as a married couple.


Common-law marriage vs. cohabitation

The term "common-law marriage" is often used incorrectly to describe various types of couple relationships, such as
cohabitation Cohabitation is an arrangement where people who are not married, usually couples, live together. They are often involved in a romantic or sexually intimate relationship on a long-term or permanent basis. Such arrangements have become increas ...
(whether or not registered) or other legally formalized relations. Although these interpersonal relationships are often called "common-law marriage", they differ from its original meaning in that they are not legally recognized as "marriages" but are a parallel interpersonal status such as a "domestic partnership", "registered partnership", "conjugal union" or "civil union". Non-marital relationship contracts are not necessarily recognized from one jurisdiction to another. In Canada, while some provinces may extend to couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married. They may be legally defined as "unmarried
spouse A spouse is a significant other in a marriage. In certain contexts, it can also apply to a civil union or common-law marriage. Although a spouse is a form of significant other, the latter term also includes non-marital partners who play a soci ...
s" and for many purposes such as taxes and financial claims, and within those contexts treated the same as married spouses. A 2008 poll in the UK showed that 51% of respondents incorrectly believed that cohabitants had the same rights as married couples. In Scotland, common-law marriage does not exist, although there was a type of irregular marriage called 'marriage by cohabitation with habit and repute' which could apply to couples in special circumstances until 2006, and was abolished by the Family Law (Scotland) Act 2006 (irregular marriages established before 4 May 2006 are recognised).


History

In ancient Greece and Rome, marriages were private agreements between individuals and estates. Community recognition of a marriage was largely what qualified it as a marriage. The state had only limited interests in assessing the legitimacy of marriages. Normally, civil and religious officials took no part in marriage ceremonies and did not keep registries. There were several more or less formal ceremonies to choose from (partly interchangeable, but sometimes with different legal ramifications) as well as informal arrangements. It was relatively common for couples to cohabit with no ceremony; cohabiting for a moderate period of time was sufficient to make it a marriage. Cohabiting for the purpose of marriage carried with it no social stigma. In medieval Europe, marriage came under the jurisdiction of
canon law Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is t ...
, which recognized as a valid marriage one in which the parties stated that they took one another as wife and husband, even in absence of any witnesses. The
Catholic Church The Catholic Church, also known as the Roman Catholic Church, is the List of Christian denominations by number of members, largest Christian church, with 1.3 billion baptized Catholics Catholic Church by country, worldwide . It is am ...
forbade
clandestine marriage Clandestinity is a diriment impediment in the canon law of the Roman Catholic Church. It invalidates a marriage performed without the presence of three witnesses, one of whom must be a priest or a deacon. History It was promulgated in the 16th ...
at the
Fourth Lateran Council The Fourth Council of the Lateran or Lateran IV was convoked by Pope Innocent III in April 1213 and opened at the Lateran Palace in Rome on 11 November 1215. Due to the great length of time between the Council's convocation and meeting, many ...
(1215), which required all marriages to be announced in a church by a priest. The
Council of Trent The Council of Trent ( la, Concilium Tridentinum), held between 1545 and 1563 in Trent (or Trento), now in northern Italy, was the 19th ecumenical council of the Catholic Church. Prompted by the Protestant Reformation, it has been described a ...
(1545–1563) introduced more specific requirements, ruling that future marriages would be valid only if witnessed by the pastor of the parish or the local ordinary (the bishop of the diocese) or by the delegate of one of said witnesses, the marriage being invalid otherwise, even if witnessed by a Catholic priest. The Tridentine canons did not bind the
Protestants Protestantism is a Christian denomination, branch of Christianity that follows the theological tenets of the Reformation, Protestant Reformation, a movement that began seeking to reform the Catholic Church from within in the 16th century agai ...
or the
Eastern Orthodox Eastern Orthodoxy, also known as Eastern Orthodox Christianity, is one of the three main branches of Chalcedonian Christianity, alongside Catholicism and Protestantism. Like the Pentarchy of the first millennium, the mainstream (or " canonical ...
, but clandestine marriages were impossible for the latter since their validity required the presence of a priest. England abolished clandestine or common-law marriages in the
Marriage Act 1753 The Clandestine Marriages Act 1753, also called the Marriage Act 1753, long title "An Act for the Better Preventing of Clandestine Marriage", popularly known as Lord Hardwicke's Marriage Act (citation 26 Geo. II. c. 33), was the first statutory ...
, requiring marriages to be performed by a priest of the
Church of England The Church of England (C of E) is the established Christian church in England and the mother church of the international Anglican Communion. It traces its history to the Christian church recorded as existing in the Roman province of Brit ...
unless the participants in the marriage were
Jews Jews ( he, יְהוּדִים, , ) or Jewish people are an ethnoreligious group and nation originating from the Israelites Israelite origins and kingdom: "The first act in the long drama of Jewish history is the age of the Israelites""The ...
or
Quakers Quakers are people who belong to a historically Protestant Christian set of denominations known formally as the Religious Society of Friends. Members of these movements ("theFriends") are generally united by a belief in each human's abili ...
. The Act applied to
Wales Wales ( cy, Cymru ) is a country that is part of the United Kingdom. It is bordered by England to the east, the Irish Sea to the north and west, the Celtic Sea to the south west and the Bristol Channel to the south. It had a population in ...
but not to Scotland, which retained its own legal system by the
Acts of Union 1707 The Acts of Union ( gd, Achd an Aonaidh) were two Acts of Parliament: the Union with Scotland Act 1706 passed by the Parliament of England, and the Union with England Act 1707 passed by the Parliament of Scotland. They put into effect the t ...
. To get around the requirements of the Marriage Act, such as minimum age requirements, couples would go to
Gretna Green Gretna Green is a parish in the southern council area of Dumfries and Galloway, Scotland, on the Scottish side of the border between Scotland and England, defined by the small river Sark, which flows into the nearby Solway Firth. It was histo ...
, in the south of Scotland, or other border villages such as
Coldstream Coldstream ( gd, An Sruthan Fuar , sco, Caustrim) is a town and civil parish in the Scottish Borders area of Scotland. A former burgh, Coldstream is the home of the Coldstream Guards, a regiment in the British Army. Description Coldstream l ...
, to get married under Scots law. The Marriage Act 1753 also did not apply to Britain's overseas colonies of the time and so common-law marriages continued to be recognized in what are now the United States and Canada. Marriages ''per verba de praesenti'', sometimes known as common-law marriages, were an agreement to marry, rather than a marriage.


Legislation


Australia

Australia Australia, officially the Commonwealth of Australia, is a sovereign country comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands. With an area of , Australia is the largest country by ...
does not have common law marriage as it is understood under common law. The term used for relationships between any two persons who are not married, but are living in certain domestic circumstances, may vary between states and territories, although the term '' de facto relationship'' is often used. Since March 1, 2009, de facto relationships have been recognized in the Family Law Act (Commonwealth), applicable in states that have referred their jurisdiction on de facto couples to the Commonwealth's jurisdiction. In
Western Australia Western Australia (commonly abbreviated as WA) is a state of Australia occupying the western percent of the land area of Australia excluding external territories. It is bounded by the Indian Ocean to the north and west, the Southern Ocean to t ...
, the only state that has not referred its jurisdiction, state legislation is still valid. There is also no federal recognition of de facto relationships existing outside of Australia (see
Section 51(xxxvii) of the Australian Constitution Section 51(xxxvii) of the Constitution of Australia (also called the referral power) is a provision in the Australian Constitution which empowers the Australian Parliament to legislate on matters referred to it by any state. As Australia is a fe ...
), and so this is also a state matter. Regulation of ''de facto'' relations is a combination of federal and state/territory laws.


Canada

Canada Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by to ...
does not have the institution of common-law marriage within the meaning of the legal concept of such a marriage under the common-law, although common-law relationships are recognized for certain purposes in Canada. The
Parliament of Canada The Parliament of Canada (french: Parlement du Canada) is the federal legislature of Canada, seated at Parliament Hill in Ottawa, and is composed of three parts: the King, the Senate, and the House of Commons. By constitutional convention, ...
has exclusive legislative authority over marriage and divorce in Canada under section 91(26) of the ''Constitution Act, 1867''. Marriage is regulated throughout Canada by the ''Civil Marriage Act'', and violations of the requirements of this act are subject to the ''Criminal Code of Canada'' ("Offenses Against Conjugal Rights" and "Unlawful Solemnization of Marriage" chapters, articles 290–296), also applicable throughout Canada. By contrast, the regulation of non-marital relations, which are often referred to as "common-law spouses", falls largely under provincial law. As such, the legal definition and many implications of marriage-like relationships fall under provincial jurisdiction. As
family law Family law (also called matrimonial law or the law of domestic relations) is an area of the law that deals with family matters and domestic relations. Overview Subjects that commonly fall under a nation's body of family law include: * Marriage ...
varies between provinces, there are differences between the provinces regarding the recognition of common-law relationships. Most such regulations deal with relations that are romantic/sexual in nature, but some, such as adult interdependent relationships in Alberta, do not have such a requirement and can apply to platonic relations, including relatives. In addition, the term "common law" appears informally in documents from the federal government. Common-law partners may be eligible for various federal government spousal benefits. Various laws include "common-law status", which automatically takes effect when two people (of any gender) have lived together in a conjugal relationship for a minimum period. In 1999, in its ruling '' M. v. H.'', the
Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
decided that same-sex partners would also be included in common-law relationships. Around one-fifth of Canadian couples are in common-law relationships, a three-fold increase from 1981, according to 2016 data from Statistics Canada.


Federal

Canada Revenue Agency The Canada Revenue Agency (CRA; ; ) is the revenue service of the Canadian federal government, and most provincial and territorial governments. The CRA collects taxes, administers tax law and policy, and delivers benefit programs and tax cre ...
(CRA) states, as of 2007, "living common-law" means living with a person in a conjugal relationship without being married and at least one of the following is true: # the couple has been living in a
conjugal Conjugal rights may refer to: *Rights in marriage, related to conjugal responsibilities *Conjugal visits * Restitution of conjugal rights In English law, restitution of conjugal rights was an action in the ecclesiastical courts and later in the Co ...
relationship for at least 12 continuous months; # the couple are parents of a child by birth or adoption; or # one of the couple has custody and control of the other's child (or had custody and control immediately before the child turned 19 years of age) and the child is wholly dependent on that person for support. Canada recognizes unmarried partners under certain circumstances for the purpose of
immigration Immigration is the international movement of people to a destination country of which they are not natives or where they do not possess citizenship in order to settle as permanent residents or naturalized citizens. Commuters, tourists, ...
. Citizenship & Immigration Canada states that a common-law partner refers to a person who is living in a conjugal relationship with another person (opposite or same sex), and has done so continuously for a period of at least one year. A conjugal relationship exists when there is a significant degree of commitment between two people. This can be shown with evidence that the couple share the same home, that they support each other financially and emotionally, that they have children together, or that they present themselves in public as a couple. Common-law partners who are unable to live together or appear in public together because of legal restrictions in their home country or who have been separated for reasons beyond their control (for example, civil war or armed conflict) may still qualify and should be included on an application.


Alberta

See
Adult interdependent relationship in Alberta Since 2003, adult interdependent relationships have been available to both same-sex and opposite-sex couples in the Canadian province of Alberta, imposing some but not all of the obligations of marriage and providing some but not all the rights an ...
.


British Columbia

The term "common-law marriage" does not appear in British Columbia (BC) law. A distinction is made between being a ''spouse'' and being ''married''. Married couples include only those who have engaged in a legal marriage ceremony and have received a marriage licence. ''Spouses'' include married couples as well as those, of same or opposite gender, who satisfy criteria for being in a ''marriage-like relationship'' for a time period that depends on the law that is being considered. Hence the meaning of the term ''unmarried spouse'' in BC depends on the legal context. The criteria for a relationship being accepted as ''marriage-like'' include cohabitation for at least the specified period, unbroken by excessively long intervals that are unexplained by exigent circumstances. If dispute arises about whether the relationship was ''marriage-like'', a court would consider a comprehensive set of further criteria including the domestic and financial arrangements, degree and nature of intimacy, and the sense of the relationship presented to friends and families (especially by each spouse to his/her own family). "Mere roommates will never qualify as unmarried spouses. There needs to be some other dimension to the relationship indicative of a commitment between the parties and their shared belief that they are in a special relationship with each other." The criteria do not exclude the existence of a previous marriage to a third person during the period of the ''marriage-like relationship'' of the unmarried spouses. Hence a person may have more than one spouse at the same time. The implications of becoming an unmarried spouse include: * ''Child support''. A spouse is responsible for contributing towards support of a child and possibly the other spouse if he/she is a biological or adoptive parent, or has contributed to support of the child for at least one year during the "marriage-like relationship" with the child's parent and the parent applies to the court for continuing support after separation and within one year of the last support contribution. (The contribution towards child support expected from a non-parent is not as great as from a parent.) * ''Financial support and division of property and debts after separation''. If the "marriage-like relationship" has continued for two years, the laws that apply upon separation are the same as those that apply to married couples, according to the "Estate Administration Act". All property and debts acquired prior to the relationship are exempt. If no agreement between the partners about property and/or debts is written during or after the relationship, then the law specifies equal sharing of all acquired during the relationship, as well as any changes in the value of those brought into the relationship. (There is an exemption from equal sharing for certain categories, such as gifts and inheritances received by one spouse.) The degree of participation of each spouse in the acquisition of property or debt does not affect the sharing. Financial support may also be requested from the former spouse. A claim for financial support or the division of property and debt must be made within two years of the date of separation. * ''Inheritance''. A spouse is eligible for inheritance if the "marriage-like relationship" has existed for at least two years immediately prior to the death of the other spouse. All property and debts held in common are fully inherited automatically by the surviving spouse. Those brought into the relationship are subject to any existing valid will, which may be vulnerable to challenge if it does not provide for the surviving spouse and any children. * ''Benefits from government programs''. Access to benefits from government programs or policies can become more (or less) available upon becoming an unmarried spouse. In general, these become similar or identical to those of married couples, but the criteria for qualifying as ''unmarried spouses'', such as longevity of the relationship, differ for the various programs. Social assistance is often immediately reduced when there is perceived to be a "spouse in the house", regardless of the nature of the relationship.


Manitoba

See Common-law relationships in Manitoba.


New Brunswick

In
New Brunswick New Brunswick (french: Nouveau-Brunswick, , locally ) is one of the thirteen provinces and territories of Canada. It is one of the three Maritime provinces and one of the four Atlantic provinces. It is the only province with both English and ...
, a couple must live together for three years or have a natural or adopted child together. They cannot have been married to another person during this time.


Nova Scotia

See
Domestic partnership in Nova Scotia Since June 4, 2001, the Canadian province of Nova Scotia has offered Domestic partnership registration to unmarried couples, both same-sex and different-sex, thereby entitling them to some, but not all, of the rights and benefits of marriage. Leg ...
.


Ontario

In
Ontario Ontario ( ; ) is one of the thirteen provinces and territories of Canada.Ontario is located in the geographic eastern half of Canada, but it has historically and politically been considered to be part of Central Canada. Located in Central Ca ...
, section 29 of the ''Family Law Act'' specifically recognizes unmarried spouses in dealing with spousal support issues. The definition is having cohabited continuously for not less than three years or "in a relationship of some permanence" if parents of a child. However, common-law spouses do not have automatic rights under the ''Family Law Act'' to their spouses' property (section 29 applies only to the support sections of the Act). Thus, common-law partners do not have a statutory right to divide property in a breakup, and must ask courts to look to concepts such as the constructive or resulting trust to divide property in an equitable manner between partners. Married people may also have a recognized common-law spouse even before being divorced from the first spouse. Another difference that distinguishes common-law spouses from married partners is that a common-law partner can be compelled to testify against his or her partner in a court of law.


Quebec

The
Civil Code of Quebec The ''Civil Code of Quebec'' (CCQ, french: Code civil du Québec) is the civil code in force in the Canadian province of Quebec, which came into effect on January 1, 1994. It replaced the '' Civil Code of Lower Canada'' (french: Code civil du Ba ...
has never recognized a common-law partnership as a form of marriage. However, many laws in Quebec explicitly apply to common-law partners (called ) in " unions" (marriages being " unions") as they do to married spouses. Same-sex partners are also recognized as in unions, for the purpose of social benefit laws. However, common-law partners do not have any legal rights between them, such as
alimony Alimony, also called aliment (Scotland), maintenance (England, Ireland, Northern Ireland, Wales, Canada, New Zealand), spousal support (U.S., Canada) and spouse maintenance (Australia), is a legal obligation on a person to provide financial sup ...
,
family patrimony Family patrimony is a type of civil law patrimony that is created by marriage or civil union (where recognized) which creates a bundle of entitlements and obligations that must be shared by the spouses or partners upon divorce, annulment, dissol ...
, compensatory allowance and
matrimonial regime Matrimonial regimes, or marital property systems, are systems of property ownership between spouses providing for the creation or absence of a marital estate and if created, what properties are included in that estate, how and by whom it is man ...
. The
Quebec Court of Appeal The Court of Appeal of Quebec (sometimes referred to as Quebec Court of Appeal or QCA) (in French: ''la Cour d'appel du Québec'') is the highest judicial court in Quebec, Canada. It hears cases in Quebec City and Montreal. History The Court wa ...
ruled this restriction to be unconstitutional in 2010; but on January 25, 2013 the
Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
ruled that common-law couples do not have the same rights as married couples. A 2002 amendment to the Civil Code recognizes a type of domestic partnership called a
civil union A civil union (also known as a civil partnership) is a legally recognized arrangement similar to marriage, created primarily as a means to provide recognition in law for same-sex couples. Civil unions grant some or all of the rights of marriage ...
that is similar to marriage and is likewise available to same-sex partners. No citizen of Quebec can be recognized under family law to be in both a civilly married state and a within the same time frame. Divorce from one conjugal relationship must occur before another conjugal relationship may occur in family law. Same-sex partners can also marry legally in Quebec, as elsewhere in Canada.


Saskatchewan

In
Saskatchewan Saskatchewan ( ; ) is a Provinces and territories of Canada, province in Western Canada, western Canada, bordered on the west by Alberta, on the north by the Northwest Territories, on the east by Manitoba, to the northeast by Nunavut, and on t ...
, common-law relations are regulated by ''The Family Property Act'' and ''The Family Maintenance Act''. Queen's Bench justices have sanctioned common-law relationships as simultaneously existing in family law while one or more of the spouses were also civilly married to others.


Denmark

§ 27 of the historical
Jyske Lov ''Codex Holmiensis C 37'' contains the oldest manuscript of the Danish ''Code of Jutland'' ( da, Jyske Lov),Riis, Thomas. Det kongelige bibliotek, Denmark. Det kongelige bibliotek, Denmark. a civil code enacted under Valdemar II of Denmark. The ...
, which covered
Funen Funen ( da, Fyn, ), with an area of , is the third-largest island of Denmark, after Zealand and Vendsyssel-Thy. It is the 165th-largest island in the world. It is located in the central part of the country and has a population of 469,947 as o ...
,
Jutland Jutland ( da, Jylland ; german: Jütland ; ang, Ēota land ), known anciently as the Cimbric or Cimbrian Peninsula ( la, Cimbricus Chersonesus; da, den Kimbriske Halvø, links=no or ; german: Kimbrische Halbinsel, links=no), is a peninsula of ...
and
Schleswig The Duchy of Schleswig ( da, Hertugdømmet Slesvig; german: Herzogtum Schleswig; nds, Hartogdom Sleswig; frr, Härtochduum Slaswik) was a duchy in Southern Jutland () covering the area between about 60 km (35 miles) north and 70 km ...
in the years 1241–1683, reads:


India

In the case of ''D. Velusamy v D. Patchaiammal'' (2010), the
Supreme Court of India The Supreme Court of India ( IAST: ) is the supreme judicial authority of India and is the highest court of the Republic of India under the constitution. It is the most senior constitutional court, has the final decision in all legal matters ...
defined, with reference to the Domestic Violence Act of 2005, "a relationship in the nature of marriage" as "akin to a common law marriage". The Supreme Court declared that the following are required to satisfy the conditions for a common-law marriage or a relationship in the nature of marriage: # Must be of
marriageable age Marriageable age (or marriage age) is the general age, as a legal age or as the minimum age subject to parental, religious or other forms of social approval, at which a person is legitimately allowed for marriage. Age and other prerequisites t ...
. # Must not be already married and is qualified to marry. # Must be living together in a way that seems to society that the couple is married # Must have cohabited for a "significant" period of time. # Must be living together voluntarily. There is no specified time for the common-law marriage to actually take effect but needs it to be "significant". The case clarified that there was a difference between "live-in relationships", "a relationship in the nature of marriage", casual relationships and having a "keep". Only "a relationship in the nature of marriage" can afford the rights and protections conferred in the Domestics Violence Act of 2005 and Section 125 of the Criminal Code, which include
alimony Alimony, also called aliment (Scotland), maintenance (England, Ireland, Northern Ireland, Wales, Canada, New Zealand), spousal support (U.S., Canada) and spouse maintenance (Australia), is a legal obligation on a person to provide financial sup ...
for the female partner (unless she leaves her partner for no reason, had an affair with another man, or left with a mutual understanding, in which case alimony amounts must be settled mutually too), allowances, shelter and protections for the female partner in case of abuse, right to live in her partner's house and child custody. Furthermore, children born in such relationships will be granted allowances until they reach full age and, provided the person is not a married adult daughter, if the person is of full age and is handicapped. Furthermore, the
Hindu Marriage Act The Hindu Marriage Act is an Act of the Parliament of India enacted in 1955 which was passed on 18th of May. Three other important acts were also enacted as part of the Hindu Code Bills during this time: the Hindu Succession Act (1956), the Hind ...
stipulates that children born out of wedlock (including to live-in relationships, relationships in the nature of marriage and casual relationships) are treated as equivalent to legitimate children in terms of inheritance. However, the Hindu Marriage Act is only applicable if the children’s parent is Hindu, Sikh, Buddhist or Jain.


Ireland

Ireland Ireland ( ; ga, Éire ; Ulster-Scots: ) is an island in the North Atlantic Ocean, in north-western Europe. It is separated from Great Britain to its east by the North Channel, the Irish Sea, and St George's Channel. Ireland is the s ...
does not recognize common-law marriage, but the
Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 is an Act of the Oireachtas (Irish Parliament) which allows same-sex couples to enter into civil partnerships. The Act also provides rights for participants in lon ...
gives some rights to unmarried cohabitants.


Israel

In
Israel Israel (; he, יִשְׂרָאֵל, ; ar, إِسْرَائِيل, ), officially the State of Israel ( he, מְדִינַת יִשְׂרָאֵל, label=none, translit=Medīnat Yīsrāʾēl; ), is a country in Western Asia. It is situated ...
, courts and a few statutes (such as social security which grants death and disability benefits) have recognized an institute of ( ) meaning a couple who are "known in the public" (lit. translation) as living together as husband and wife. Generally speaking the couple needs to satisfy two tests which are: 1) "intimate life similar to married couple, relationship based on same emotions of affection and love, dedication and faithfulness, showing they have chosen to share their fate" (
Supreme Court of Israel ar, المحكمة العليا , image = Emblem of Israel dark blue full.svg , imagesize = 100px , caption = Emblem of Israel , motto = , established = , location = Givat Ram, Jerusalem , coordina ...
, judge Zvi Berenson (intimacy test)), and 2) sharing household (economic test). In addition courts usually are more likely to recognize such relationship as marriage for granting benefits if the couple could not get married under the Israeli law. Israel's common-law status grants Israeli couples virtually the same benefits and privileges as married couples in Israel.


Kuwait

Common-law marriage or partnerships have some limited recognition in
Kuwait Kuwait (; ar, الكويت ', or ), officially the State of Kuwait ( ar, دولة الكويت '), is a country in Western Asia. It is situated in the northern edge of Eastern Arabia at the tip of the Persian Gulf, bordering Iraq to Iraq–Ku ...
in the cases of expatriate familial disputes such as
maintenance Maintenance may refer to: Biological science * Maintenance of an organism * Maintenance respiration Non-technical maintenance * Alimony, also called ''maintenance'' in British English * Champerty and maintenance, two related legal doct ...
payments and
child support Child support (or child maintenance) is an ongoing, periodic payment made by a parent for the financial benefit of a child (or parent, caregiver, guardian) following the end of a marriage or other similar relationship. Child maintenance is paid d ...
dues. Family courts use the law of the male partner or husband's country of nationality to deal with family matters and hence if the male partner comes from a country where partnerships or other similar unions are recognised, then a Kuwaiti court can also consider it. However, intercourse out of marriage is illegal in Kuwait so such recognition can only practically apply in exceptional cases like in cases of illegitimate children born abroad and the parents have since separated abroad but relocated to Kuwait. No recognition is extended to couples where one or both parties are Kuwaiti or to
homosexual Homosexuality is romantic attraction, sexual attraction, or sexual behavior between members of the same sex or gender. As a sexual orientation, homosexuality is "an enduring pattern of emotional, romantic, and/or sexual attractions" to pe ...
couples.


United Kingdom


England and Wales

The term "common-law marriage" has been used in
England and Wales England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is En ...
to refer to unmarried, cohabiting
heterosexual Heterosexuality is romantic attraction, sexual attraction or sexual behavior between people of the opposite sex or gender. As a sexual orientation, heterosexuality is "an enduring pattern of emotional, romantic, and/or sexual attractions" ...
couples.Probert, R., "Common-Law Marriage: Myths and Misunderstandings", ''Child & Family Law Quarterly'' vol.20 issue 1 p.1 However, this is merely a social usage. The term does not confer on cohabiting parties any of the rights or obligations enjoyed by spouses or civil partners. Unmarried partners are recognised for certain purposes in legislation: ''e.g.,'' for means-tested benefits. For example, in the
Jobseekers Act 1995 The Jobseekers Act 1995c 18 is an Act of Parliament of the United Kingdom, which empowers the government to provide unemployment income insurance, or " Jobseeker's Allowance" while people are looking for work. In its current form, jobseeker's allo ...
, "unmarried couple" was defined as a man and woman who are not married to each other but who are living together in the same household as husband and wife other than in prescribed circumstances. But in many areas of the law cohabitants enjoy no special rights. Thus when a cohabiting relationship ends ownership of any assets will be decided by
property law Property law is the area of law that governs the various forms of ownership in real property (land) and personal property. Property refers to legally protected claims to resources, such as land and personal property, including intellectual pro ...
. The courts have no discretion to reallocate assets, as occurs on
divorce Divorce (also known as dissolution of marriage) is the process of terminating a marriage or marital union. Divorce usually entails the canceling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving th ...
. It is sometimes mistakenly claimed that before the
Marriage Act 1753 The Clandestine Marriages Act 1753, also called the Marriage Act 1753, long title "An Act for the Better Preventing of Clandestine Marriage", popularly known as Lord Hardwicke's Marriage Act (citation 26 Geo. II. c. 33), was the first statutory ...
cohabiting couples would enjoy the protection of a "common-law marriage". In fact, neither the name nor the concept of "common-law marriage" was known at this time. Far from being treated as if they were married, couples known to be cohabiting risked prosecution by the church courts for
fornication Fornication is generally consensual sexual intercourse between two people not married to each other. When one or more of the partners having consensual sexual intercourse is married to another person, it is called adultery. Nonetheless, John ...
. "Contract marriages" (or more strictly marriages ) could be presumed, before the
Marriage Act 1753 The Clandestine Marriages Act 1753, also called the Marriage Act 1753, long title "An Act for the Better Preventing of Clandestine Marriage", popularly known as Lord Hardwicke's Marriage Act (citation 26 Geo. II. c. 33), was the first statutory ...
, to have been undertaken by mutual consent by couples who lived together without undergoing a marriage ceremony. However, they were not understood as having the legal status of a valid marriage until the decision in ''Dalrymple'' clarified this in 1811. This decision affected the subsequent development of English law due to the fact that the Marriage Act 1753 did not apply overseas. English courts later held that it was possible to marry by a simple exchange of consent in the
colonies In modern parlance, a colony is a territory subject to a form of foreign rule. Though dominated by the foreign colonizers, colonies remain separate from the administration of the original country of the colonizers, the '' metropolitan state'' ...
, although most of the disputed ceremonies involved the ministrations of a priest or other clergyman. The English courts also upheld marriages by consent in territories not under British control but only if it had been impossible for the parties to marry according to the requirements of the local law. The late 1950s and early 1960s saw a spate of cases arising out of the
Second World War World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposi ...
, with marriages in
prisoner-of-war camp A prisoner-of-war camp (often abbreviated as POW camp) is a site for the containment of enemy fighters captured by a belligerent power in time of war. There are significant differences among POW camps, internment camps, and military prisons. ...
s in
German German(s) may refer to: * Germany (of or related to) **Germania (historical use) * Germans, citizens of Germany, people of German ancestry, or native speakers of the German language ** For citizens of Germany, see also German nationality law **Ge ...
-occupied
Europe Europe is a large peninsula conventionally considered a continent in its own right because of its great physical size and the weight of its history and traditions. Europe is also considered a Continent#Subcontinents, subcontinent of Eurasia ...
posing a particular problem for judges. (Some British civilians interned by the
Japan Japan ( ja, 日本, or , and formally , ''Nihonkoku'') is an island country in East Asia. It is situated in the northwest Pacific Ocean, and is bordered on the west by the Sea of Japan, while extending from the Sea of Okhotsk in the n ...
ese during the Second World War were held to be legally married after contracting marriages under circumstances where the formal requirements could not be met.) To this limited extent, English law does recognise what has become known as a "common-law marriage". English legal texts initially used the term to refer exclusively to ''American'' common-law marriages. Only in the 1960s did the term "common-law marriage" begin to be used in its contemporary sense to denote unmarried, cohabiting heterosexual relationships, and not until the 1970s and 1980s did the term begin to lose its negative connotations. The use of the term is likely to have encouraged cohabiting couples to believe falsely that they enjoyed legal rights. By the end of the 1970s a myth had emerged that marrying made little difference to one's legal rights, and this may have fuelled the subsequent increase in the number of couples living together and having children together outside marriage.


Scotland

Under
Scots law Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Ireland ...
, there have been several forms of "irregular marriage", among them: # Irregular marriage by declaration ''de praesenti'' – declaring in the presence of two witnesses that one takes someone as one's wife or husband. # Irregular marriage conditional on consummation # Marriage contracted by correspondence # Irregular marriage by cohabitation with habit and repute The
Marriage (Scotland) Act 1939 Marriage, also called matrimony or wedlock, is a culturally and often legally recognized union between people called spouses. It establishes rights and obligations between them, as well as between them and their children, and between t ...
provided that the first three forms of irregular marriage could not be formed on or after 1 January 1940. However, any irregular marriages contracted prior to 1940 can still be upheld. This act also allowed the creation of regular civil marriages in Scotland for the first time (the civil registration system started in Scotland on 1 January 1855). Until this act, the only regular marriage available in Scotland was a religious marriage. Irregular marriages were not socially accepted and many people who decided to contract them did so where they were relatively unknown. In some years up to 60% of the marriages in the Blythswood Registration District of Glasgow were "irregular". In 2006, "marriage by cohabitation with habit and repute", the last form of irregular marriage that could still be contracted in Scotland, was abolished in the Family Law (Scotland) Act 2006. Until that act had come into force, Scotland remained the only European jurisdiction never to have totally abolished the old-style common-law marriage. For this law to apply, the time the couple had lived together continuously had to exceed 20 days. As in the American jurisdictions that have preserved it, this type of marriage can be difficult to prove. It is not enough for the couple to have lived together for several years, but they must have been generally regarded as husband and wife. Their friends and neighbors, for example, must have known them as Mr. and Mrs. So-and-so (or at least they must have held themselves out to their neighbors and friends as Mr. and Mrs. So-and-so). Also, like American common-law marriages, it is a form of lawful marriage, so that people cannot be common-law spouses, or husband and wife by cohabitation with habit and repute, if one of them was legally married to somebody else when the relationship began. It is a testament to the influence of American legal thought and English colloquial usage that, in a study conducted by the Scottish Executive in 2000, 57% of Scots surveyed believed that couples who merely live together have a "common-law marriage". In fact, that term is unknown in Scots law, which uses "marriage by cohabitation with habit and repute". Otherwise, men and women who otherwise behave as husband and wife did ''not'' have a common-law marriage or a marriage by habit and repute merely because they set up housekeeping together, but they ''must'' have held themselves out to the world as husband and wife. (In many jurisdictions, they must do so for a certain length of time for the marriage to be valid.) The Scottish Survey is not clear on these points. It notes that "common-law marriage" is not part of Scots law, but it fails to note that "marriage by cohabitation with habit and repute", which is the same thing but in name, ''was'' part of Scots law until 2006.


United States

In the U.S., most states have abolished common-law marriage by statute. However, common-law marriage can still be contracted in seven states and the
District of Columbia ) , image_skyline = , image_caption = Clockwise from top left: the Washington Monument and Lincoln Memorial on the National Mall, United States Capitol, Logan Circle (Washington, D.C.), Logan Circle, Jefferson Memoria ...
. Once they meet the requirements of common-law marriage, couples in those true common-law marriages are considered legally married for all purposes and in all circumstances. Common-law marriage can still be contracted in
Colorado Colorado (, other variants) is a state in the Mountain West subregion of the Western United States. It encompasses most of the Southern Rocky Mountains, as well as the northeastern portion of the Colorado Plateau and the western edge of the ...
,
Iowa Iowa () is a U.S. state, state in the Midwestern United States, Midwestern region of the United States, bordered by the Mississippi River to the east and the Missouri River and Big Sioux River to the west. It is bordered by six states: Wiscon ...
,
Kansas Kansas () is a U.S. state, state in the Midwestern United States, Midwestern United States. Its Capital city, capital is Topeka, Kansas, Topeka, and its largest city is Wichita, Kansas, Wichita. Kansas is a landlocked state bordered by Nebras ...
,
Montana Montana () is a state in the Mountain West division of the Western United States. It is bordered by Idaho to the west, North Dakota and South Dakota to the east, Wyoming to the south, and the Canadian provinces of Alberta, British Columb ...
,
Rhode Island Rhode Island (, like ''road'') is a U.S. state, state in the New England region of the Northeastern United States. It is the List of U.S. states by area, smallest U.S. state by area and the List of states and territories of the United States ...
,
Texas Texas (, ; Spanish: ''Texas'', ''Tejas'') is a state in the South Central region of the United States. At 268,596 square miles (695,662 km2), and with more than 29.1 million residents in 2020, it is the second-largest U.S. state by ...
,
Utah Utah ( , ) is a state in the Mountain West subregion of the Western United States. Utah is a landlocked U.S. state bordered to its east by Colorado, to its northeast by Wyoming, to its north by Idaho, to its south by Arizona, and to its ...
,
Oklahoma Oklahoma (; Choctaw: ; chr, ᎣᎧᎳᎰᎹ, ''Okalahoma'' ) is a state in the South Central region of the United States, bordered by Texas on the south and west, Kansas on the north, Missouri on the northeast, Arkansas on the east, New ...
and the
District of Columbia ) , image_skyline = , image_caption = Clockwise from top left: the Washington Monument and Lincoln Memorial on the National Mall, United States Capitol, Logan Circle (Washington, D.C.), Logan Circle, Jefferson Memoria ...
. All U.S. jurisdictions recognize common-law marriages that were validly contracted in the originating jurisdiction, although the extent to which the U.S. Constitution requires interstate marriage recognition has not been fully articulated by the
Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
. However, absent legal registration or similar notice of the marriage, the parties to a common law marriage or their eventual heirs may have difficulty proving their relationship to be marriage. Some states provide for registration of an informal or common-law marriage based on the declaration of each of the spouses on a state-issued form.


English-speaking Caribbean

Due to their colonial past, the islands of the English-speaking Caribbean have statutes concerning common-law marriage similar to those in England. However, in the Caribbean, the term "common-law" marriage is also widely described, by custom as much as by law, to any long term relationship between male and female partners. Such unions are widespread, making up a significant percentage of families, many of which have children and may last for many years. The reasons for people choosing common-law arrangements is debated in sociological literature. Although the acceptance of this type of union varies, men being more inclined to consider them as legitimate than women, they have become an institution.Benjamin Schlesinger, "Family Patterns in the English-Speaking Caribbean", ''Journal of Marriage and Family'' 30 (1968): 49–54.


See also

*
Free love Free love is a social movement that accepts all forms of love. The movement's initial goal was to separate the state from sexual and romantic matters such as marriage, birth control, and adultery. It stated that such issues were the concern ...
* '' Nikah 'urfi'' * ''
Pacte civil de solidarité In France, a civil solidarity pact (french: pacte civil de solidarité), commonly known as a ''PACS'' (), is a contractual form of civil union between two adults for organising their joint life. It brings rights and responsibilities, but less so ...
'' *
Putative marriage A putative marriage is an apparently valid marriage, entered into in good faith on the part of at least one of the partners, but that is legally invalid due to a technical impediment, such as a preexistent marriage on the part of one of the par ...


Notes and references


Notes


References

{{Authority control Family law Types of marriage