A common law marriage refers to a legally recognized marriage in which the married couple did not obtain a marriage license or have their marriage solemnized in a civil or religious ceremony. North Carolina does not recognize common law marriage. You have to obtain a marriage license and meet other requirements to get married in North Carolina.
However, complications may arise if a couple had a common law marriage while living in a state that recognizes common law marriage, then later separated after moving to North Carolina.
Do you have a family law matter stemming from a common law marriage? Reach out to Charles R. Ullman & Associates and get the legal advice and advocacy you need. Our Wake County law firm can help you navigate the confusing and stressful process of separation and divorce so you can begin the next chapter of your life on the right foot.
What Is Common Law Marriage?
Historically, some states in the U.S. recognized common law marriages. However, only a handful of states still recognize this form of marriage today.
In states that recognize common law marriage, a couple may enter marriage by living together for a sufficient period required by state law, presenting themselves to the public as a married couple, and meeting other requirements, including:
- Reaching the minimum age to marry
- Having a sound mind and intent to marry
- Not having a current valid marriage to someone else
A common law marriage is different from a couple simply living together. In a common law marriage, the partners present themselves as married by such acts as one spouse taking the other’s last name, referring to each other as husband/wife/spouse, or having joint financial accounts.
Common Law Marriage in North Carolina
North Carolina law (Chapter 51) does not recognize common law marriages. All marriages entered into under state law must involve the couple obtaining a license and having their marriage solemnized by an ordained minister of any religious denomination, by a ceremony recognized by a federally- or state-recognized Native American nation or tribe, or by a magistrate.
Couples who reside in a state that recognizes common law marriage and enter such a marriage while residing in that state may have their common law marriage recognized by North Carolina upon moving here provided that North Carolina courts can establish the date that the common law marriage began.
Which States Recognize Common-Law Marriage?
Today, only a few states and the District of Columbia recognize common law marriage. These states include:
- Iowa, which does not explicitly prohibit common law marriages
- Montana, which does not expressly invalidate common law marriages
- New Hampshire
- South Carolina, which allows for marriages without the couple having obtained a license
- Texas, which expressly recognizes informal marriages by declaration or agreement of the spouses
- Utah, which recognizes the validity of marriages not solemnized
Certain states that previously recognized common law marriages continue to recognize such marriages if the couple met the requirements under state law before the banning of common law marriage. These states include:
- Georgia (for marriages established before January 1, 1997)
- Idaho (for marriages established before January 1, 1996)
- Oklahoma (for marriages established before November 1, 1998)
- Ohio (for marriages established before October 10, 1991)
- Pennsylvania (for marriages established before January 1, 2005)
How to Prove Common Law Marriage
Most states that still recognize common law marriage have statutory requirements that a couple must meet for their relationship to qualify as a common law marriage. When third parties dispute the validity of a common law marriage, a couple may need to present evidence to prove their marriage. The evidence may include the following:
- A written agreement dated and signed by both spouses, ideally witnessed by other parties as well, that expressly states their intent to enter into marriage
- Any affidavits signed by a spouse to obtain benefits, such as health insurance, for the other spouse
- Affidavits from the spouses setting forth the date their marriage began, the state they lived in when entering the marriage, and any prior marriages and how those marriages ended
- Supporting documentation of a marriage relationship, such as joint tax returns, joint financial accounts, deeds under which the couple owned property, or name change records
- Testimony of family members, friends, neighbors, or other acquaintances regarding how the couple publicly held themselves out as married
States that recognize common law marriage typically impose deadlines on filing court petitions to prove the existence of the common law marriage after the couple separates or one spouse dies. Failing to file a petition to prove the marriage promptly may result in a legal presumption that the couple never had a common law marriage.
Dissolution of a Common Law Marriage
No state has a separate process for dissolving a common law marriage. Instead, couples in a valid common law marriage must follow the same divorce process as statutory marriages. A couple that established a common law marriage in a state that recognizes such marriages and then moved to another state must still pursue the statutory divorce process in their new home state to end the common law marriage. The Full Faith and Credit Clause of the U.S. Constitution generally requires states to recognize legal acts under other states’ laws, such as the creation of a marriage. Moving to a state that does not permit the creation of common law marriages does not end a valid common law marriage.
Learn More About How We Can Help You by Contacting Our Attorneys
Are you in a common law marriage and considering a divorce in North Carolina? Then contact Contact Charles R. Ullman & Associates today for a confidential consultation with a North Carolina divorce attorney. Our firm can provide you with the support and advice you need and the rigorous advocacy you deserve.