What is Common Law Marriage?
Typically in the United States, a couple gets married by obtaining a marriage license and having a marriage ceremony. In some states, however, a couple can be deemed married by cohabiting and presenting themselves to the public as husband and wife without ever obtaining a marriage license or holding a marriage ceremony. This is called common law marriage, and the following states currently recognize common law marriage, regardless of when the marriage was established:
- District of Columbia
- Rhode Island
- New Hampshire (for limited purposes)
The nationwide trend has been the abolition of what is increasingly considered an outdated doctrine. There are many states that used to recognize common law marriage that now only recognize them if they were established before a certain cut-off year.
There is a popular misconception that if you live together for a certain period of time, like seven years, you are common-law married. Actually, common law marriage has nothing to do with the length of time that you are together. Although the specific requirements vary from state to state, the fundamental concept is that the parties agree to be married, and they tell their friends, family, and the public that they are married.
Does North Carolina recognize common law marriage?
No. In North Carolina, pursuant to North Carolina General Statutes Chapter 51, a valid marriage requires that both parties consent to the union and that the parties take each other as husband and wife either:
- In the presence of an ordained minister of any religion or a magistrate, followed by the declaration by the minister or magistrate that the parties are husband and wife or
- In accordance with any mode of solemnization recognized by any religious denomination, or federally or State recognized Indian Nation or Tribe
That said, if a couple is common-law married in a state that recognizes common law marriage and subsequently relocates to North Carolina, the full faith and credit clause of the U.S. Constitution requires North Carolina to recognize the marriage.
Is there common law divorce?
There is no such thing as common law divorce in the United States. In the event of divorce, a common-law married couple has to go through the same legal process as a couple with a marriage license. In North Carolina, you need to physically separate and wait at least one year before you can get divorced. Typically, before the divorce is entered, you will be dealing with issues of property division and perhaps alimony, child support, and child custody.
Parties in a common law marriage may be faced with an additional layer of complication in a divorce – that is, proving that they were married in the first place. Although common law married couples enjoy the same legal and economic benefits as a couple with a marriage license, this means that they also bear the same legal ramifications and economic downsides in a divorce. When a common-law married couple gets divorced, it’s easy for one party, usually the one with the financial advantage, to claim that they were never married because he or she never had the intent to be married, and vice versa. And how do you prove in Court whether a party had or didn’t have the intent to be married? That can get contentious.