What is a Common Law Marriage?
Many people have heard the term "common law marriage" used in various contexts. So what does it mean? And how does it apply in the Commonwealth of Virginia?
The Virginia Supreme Court explains that "common law marriage is a consensual, non ceremonial, and non-pro forma marital relationship." Many of the attributes of a "traditional" marriage, such as an officiant, certificates, a marriage license, and so on, are not necessary (or even available to) for a common law marriage. For this reason, a great many states have abolished the permitee of common law marriage, as it leads to confusion and consternation when it comes to determining what rights accrue to "married" couples.
Common law marriage differs from a traditional marriage in one main respect: it is formed without taking effect in a single transaction (or even, often, at a single time). In other words, rather than a couple being granted an official marital status in a single step , the law requires evidence that the couple fulfills certain conditions over time, and that those conditions will be sufficient to establish the existence of a common law marriage.
Whether a common law marriage exists is often unclear, and the definitions of what those conditions are can vary. The existence of a common law marriage is for this reason a fact sensitive inquiry, and each case should be analyzed on its own. Many courts have held that the following are necessary to show the existence of a common law marriage:
Many couples choose this informal arrangement simply out of personal preference. For example, some couples may desire to live together in a "marriage-like" relationship without wishing to assume any related obligation under the law. Others simply consider themselves married in their hearts, and do not see the necessity of any formalized ceremony to reflect that reality.
The Situation in Virginia
Virginia does not recognize common law marriages, but it is worth noting that this has not always been the case. Virginia did recognize common law marriages until 1958. At that time the Virginia Supreme Court stated that "the law has been changed so as to require a marriage ceremony in Virginia and a marriage license to be presented in a civil ceremony, i.e., the law now requires a license, and of course, a license presupposes an intended legal marriage."
Overtime, Virginia lawmakers have prompted amendments to the law making clear that common law marriage is no longer recognized. This includes an amendment making clear that a couple cannot enter a common law marriage when they are already married to another person. "No person shall knowingly marry any other person… previously married and whose marriage has not been expressly terminated prior to the time of such second marriage… A marriage contracted by a person knowingly in violation of the provisions of this section shall be void ab initio." A void marriage technically is defined as having never occurred, while a voidable marriage is valid until the court finds it invalid.
The General Assembly has made additional amendments related to married spouses and how they can enter into another marriage. "An emancipated minor may marry without an emancipation order so long as he has the permission of his parent or legal guardian or he may be emancipated by court after written application… No person under eighteen years shall marry unless he is emancipated by a court or has received the written permission of his parent or legal guardian to marry."
Virginia’s stance on common law marriages puts it in the minority of states nationwide. There are only seven states that continue to allow common law marriages and those states are: Alabama, Colorado, Iowa, Montana, Rhode Island and the District of Columbia.
Exceptions and Recognition
Although the general rule in Virginia remains strict prohibition against common law marriages after a change in the law in 2016, there are some exceptions and further legal recognitions of common law marriages. First, couples who entered into common law marriages prior to January 1, 2017 are still recognized as married by the state of Virginia. Further, the law recognizes that a couple may have entered into a valid common law marriage in another state with different requirements for a common law marriage. Any marriage legally entered into in another state is recognized in Virginia as long as the marrying couple never relinquished their Virginia residency and married while out of the state. Because of this, it is important for Virginia couples considering marriage to understand the state marriage laws of the state they intend to be married in. Lastly, an exception to the disallow of common law marriages in Virginia is legal recognition of a common law marriage created in the District of Columbia. The District of Columbia allows same sex and opposite sex couples to be legally married under common law and sometimes these couples cross over the Potomac River into Virginia. As a result, many Virginia courts recognize common law marriages formed in the D.C. as legally valid and enforceable in Virginia.
How This Applies to Couples in Virginia
While Virginia does not recognize common law marriage for couples to use it as the basis for establishing a spousal relationship in a divorce or probate case, it will recognize a common law marriage that has been established in another state, either for purposes of inheriting from the deceased spouse as would a surviving spouse in Virginia, or to enforce property rights that arise from the marriage during its life.
So if a couple enters into a common law marriage in a state that recognizes such a common law marriage, then returns to Virginia, their marriage is valid in Virginia even though Virginia does not allow those marriages to be entered into or proven here.
The same analysis applies to couples who may have been married in Virginia and move elsewhere to establish residency for the minimum period of time required by another states’ laws and obtain a marriage license there, and continue to renew their home, bath and kitchen or other retail vendor licenses here and call Virginia home for tax purposes.
In short, this is more than just a "wily" move to avoid the collateral consequences of marriage. Its a serious acknowledgement that marriages are recognized across state lines whether or not the place of marriage recognizes them.
This further allows courts to give full faith and credit to a common law marriage entered into in another state for the purpose of probate law. A Virginia court must accept the declaration of a common law marriage in the other state and give it full faith and credit in Virginia, even though Virginia will not itself recognize a common law marriage for purposes of declaring a spouse in Virginia.
Even so, the courts still require Texas, Alabama or other recognized proof of a common law marriage to show that the couple was "in fact, a couple . " This can be proven by, for example, showing a joint bank account with the couple as account holders, that they owned property as tenants by the entirety or in joint tenancy, or were joint purchasers or sellers in real estate transactions during the life of the purported marriage.
Many states that recognize common law marriage do allow other states to enforce their common law marriage determinations.
Virginia courts will accept evidence of a common law marriage, but only to prove that the parties are married, for tax and other consequences.
Marriage by common law in Virginia should be taken very seriously because Virginia does hold couples who think themselves to be common law married to that declaration in divorce cases where the marriage is determined to have existed by the evidence. This means the dividing of property and other consequences of a divorce. Claiming common law marriage is not a free path to divorce on grounds of adultery or strangulation, so couples should consider the consequences once their "marriage" is recognized in Virginia.
This means that the parties seeking to validly establish a common law marriage in Virginia should be ready to validate every element of the common law marriage under the laws of the other state, and the validity of the marriage in that state.
There is no statutory or other bright line rule for determining that a common law marriage exists in Virginia. Its existence depends on evidence of the intent to be married by agreement, capacity or legal eligibility to marry husband and wife, and consummation of the marriage. If these elements can be established by the best evidence available in Virginia for the recognition of another state’s common law marriage determination, particularly as to property interests for courts of equity and probate, the likelihood of finding a common law marriage in Virginia is more likely than not.
Alternatives to Common Law in Virginia
If common law marriage were available, many people who want to publicly celebrate their long-term relationships or work through the many social and financial consequences that come with marriage would likely consider becoming common law spouses. However, because common law marriage is not offered in Virginia, there are other options for long-term, non-married couples.
For instance, some non-married couples in Virginia choose to enter into a contract that outlines their rights and responsibilities and determines how they will handle concerns that could arise in the future. These contracts are called cohabitation agreements, and they can establish parameters for division of property should they decide to separate, obligations related to children, healthcare responsibilities and more.
Cohabitation agreements are not sanctioned by the Virginia courts. This means that, while such contracts are generally enforceable and can provide non-married couples a means for reaching an agreement without divorcing, they will have no bearing in a courtroom if one partner decides to challenge the agreement or try to pursue a lawsuit. Cohabitation agreements cannot supersede Virginia Family Law statutes. When this is the case, the Virginia court retains discretion and the parties will likely be concerned with additional factors that they did not address in their cohabitation agreement.
Another option that some non-married couples explore is domestic partnerships. In these relationships, couples file paperwork with their local government to legally declare their partnership. This allows them public recognition of their commitment to each other without entering into a traditional marriage. Domestic partnerships can also extend employee benefits and grant limited survivorship rights. In Virginia, domestic partnerships are only available to same-sex couples, primarily as a result of the Defense of Marriage Act (DOMA) and the ensuing Supreme Court rulings.
Obtaining Legal Counsel
Whether you have recently decided to become married by common law or have been living in Virginia under the belief that you are married under Virginia law, you should still consult a qualified Virginia divorce attorney to help ensure that your rights and responsibilities are properly carried out. One common misconception is that a couple may think if they live together and do everything a married couple does , that it is sufficient to create a common law marriage. While this may be true in some states, Virginia is not one of those states and the missing elements in the relationship can leave you with less than desirable results when you attempt to enforce rights you believe you may have.