Definition of common-law marriage
common-law marriage (plural common-law marriages)
- A marriage based on the duration of cohabitation rather than formal ceremony.
Common-law marriage, sometimes called sui juris marriage, informal marriage or marriage by habit and repute, is a form of interpersonal status that is legally recognized in limited jurisdictions as a marriage even though no legally recognized marriage ceremony is performed or civil marriage contract is entered into or the marriage registered in a civil registry. A common-law marriage is legally binding in some common law jurisdictions but has no legal consequence in others. In some jurisdictions without true common-law marriages, for example, Hungary, the term "common-law marriage" is used as a synonym for non-marital relationships such as domestic partnership or reciprocal beneficiaries relationship. A Sui Juris Marriage might only apply in the United States in this form.
Common-law marriage is often contrasted with the ceremonial marriage.
The distinctions of a common-law marriage are following:
- Common-law marriages are not licensed by government authorities, although they may be recorded in the public records of some governmental entities, but do not need to be registered at all.
- Common-law marriages are not solemnized before witnesses in a wedding ceremony.
- Cohabitation alone does not create a common-law marriage; the couple must hold themselves out to the world as spouses (Saskatchewan, Canada, excepted); and
- There must be mutual consent of the parties to the relationship constituting a marriage (Saskatchewan excepted).
- Both parties must be of legal age to enter into a marriage or have parental consent to marry.
- Both parties must be otherwise qualified to enter into a marriage, including being unmarried (Saskatchewan excepted), of sound mind, and, in many states, not sentenced to or serving a term of life in prison.
- In some jurisdictions, a couple must have cohabited and held themselves out to the world as husband and wife for a significant period of time, not defined in any state, for the marriage to be recognised as valid. With the exception of Saskatchewan, Canada, no Western World legal jurisdiction is known to allow common law marriages to be created while one or more of the cohabitants are civilly married and not divorced.
A marriage is validly contracted, whether according to statute or according to common law, the marriage can be dissolved only by a legal proceeding in the pertinent trial court, usually family court or probate court.
In the U.S. state of Texas, a new provision was added to the Family Code; either partner in a common-law marriage has two years after separation to file an action in order to prove that the common-law marriage existed. To use the provision, the separation must have occurred after September 1, 1989.
Since the mid-1990s, the term "common-law marriage" has been used in parts of Europe and Canada to describe various types of domestic partnership between persons of the same sex as well those of the opposite sex. Although these interpersonal statuses are often, as in Hungary, called "common-law marriage" they differ from true common-law marriage in that they are not legally recognized as "marriages" but are a parallel interpersonal status, known in most jurisdictions as "domestic partnership", "registered partnership", "conjugal union" or "civil union" etc.
Not all agreements break statutes. Some are illegal because they break public policy, which is generally "to discourage any interference with the freedom of choice" (Saskatchewan, Canada, excepted). An agreement forbidding a party to marry or bribing a party to refrain from marriage is considered "Interference with Marriage Relation" or an "Agreement in Restraint of Marriage"; such agreements are typically held to be nonbinding.
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