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What is Common Law Marriage?

Most people are familiar with the idea of common law marriage – they usually associate it with folks who have lived together for some amount of time but never obtained a marriage license or conducted a solemnization ceremony before a religious or legal official. “Common Law” describes laws that are not found in any statutory or constitutional document but have nonetheless been recognized as law by the courts.  Therefore, common law marriages are those that are recognized by a state even though the parties have not complied with statutory formalities.

In fact the solitary act of living together would probably not meet the requirements for common law marriage in those states that recognize it. Though the requirements vary from state to state, there are most commonly three elements: (1) an agreement between the parties to be married; (2) living together as a married couple; and (3) representing (often called “holding out) to others that they are a married couple.

Why does this issue come up? Often the question of the existence of a common law marriage arises related to an inheritance or divorce claim. In an inheritance case, a party is claiming to be entitled to a portion of the deceased person’s estate as a common law spouse. In a divorce case, a party is seeking a division of marital property and/or spousal support. Without the existence of a marriage, neither of these claims could stand. Other less common scenarios related to common law marriage arise when someone has been ordered to pay alimony to another person until that person remarries; if the person receiving payment subsequently entered into a common law marriage, the obligation to pay spousal support could be terminated. In addition, in a criminal case, a party being called to testify against another party may claim the existence of a common law marriage between the parties in order to assert the spousal privilege and avoid being forced to testify.

It is important to note that only a handful of states in the U.S. permit common law marriages, and North Carolina isn’t one of them. A common law marriage can not be created in North Carolina. However, North Carolina courts will recognize a common law marriage that was created in another state in which such a marriage is permitted (due to the “Full Faith and Credit Clause” in the United States Constitution). For example, a couple resides in South Carolina for a number of years, during which they satisfy South Carolina’s requirements for common law marriage; they move to North Carolina, where one party later files for divorce and property distribution. There is a presumption that a marriage entered into in another State is valid under the laws of that State; if the other party denies the existence of the marriage, the denier has the burden to prove that the marriage was invalid.


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