Common Law Marriage – What Is It?
Common law marriage is the concept that two people can be considered married without ever having a formal marriage ceremony or a marriage license. Mainly, this is accomplished through intent. In order to have a valid marriage without a formal ceremony, the couple must agree that they are married, act in a manner such that a reasonable person would believe they are married, and have no other legal impediments to a formal marriage. Common law marriages generally do not have any witnesses to the marriage , and they do not have any paperwork documenting the agreement to marry. The requirement that the parties live together is also fairly flexible in modern common law jurisprudence. Although the parties do not need to reside together for any length of time, people have been found to be common law spouses who never lived together. Overall, the focus in establishing a common law marriage is the mutual intent to be considered a married couple. The concept of a common law marriage goes back to medieval England. Although it has been largely abandoned in most of the states, part of Utah’s constitution mandates that common law marriages will be recognized in Utah so long as they are established prior to July 1, 1978.
Utah’s Recognition of Common Law Marriage
Utah does not recognize common law marriages. In Utah, parties can only be legally married through a formal ceremony. To be legally married, a couple must have either a marriage license and a marriage certificate or have the civil union formalized through a religious ceremony or otherwise officially solemnized. Although Utah does not recognize common law marriages contracted after 1895, the state does recognize common law marriages if the parties entered into a common law marriage prior to 1895. Additionally, in situations where one of the parties to a divorce has a common law marriage as well in some other place, Utah will give consideration to that common law marriage.
Utah’s Common Law Marriage Requirements
For a marriage to be considered a common law marriage in Utah, the spouses must meet certain requirements. The couple must agree to be married, live together in the state of Utah, and hold themselves out to the public as a married couple. In Utah, parties cannot create a common law marriage if they are either already legally married to someone else or to each other since a legal marriage is a prerequisite for the conversion to a common law marriage.
Although cohabitation and possession of property, such as a deed or bank account, are pieces of evidence that can help establish a common law marriage, they are not required to establish a common law marriage in Utah. If the parties hold out themselves to be married but have not taken any action to formally marry, the key analysis is whether they hold themselves out as a married couple to the public.
Common Law Marriage Proofs in Utah
A common law marriage in Utah is a legal union that results from an individual’s intent to be married and living with a partner in a relationship resembling one of marriage. Common law marriages are exceptions to Utah’s otherwise well-established requirement that a marriage must be solemnized by a solemnizing official to be valid.
There are two common situations in which the issue of whether a common law marriage exists arises in Utah: (1) Divorce, and (2) Probate. In a Utah divorce case, the parties may dispute whether there was a valid common law marriage or whether an "intended" marriage existed for purposes of granting the requesting party alimony. In probate, the existence of a common law marriage involving funds and property owned by a decedent may determine whether the surviving spouse of a decedent is entitled to a statutory share of the decedent’s estate.
In either context, the burden is on the party claiming that there was a common law marriage that the elements are present. As a threshold matter, a party claiming a common law marriage in Utah needs to adequately allege the two elements necessary for a common law marriage.
The first necessary allegation is the presumption of a lawful marriage which is established by proof that the parties: entered into a marriage ceremony that complies with Utah Code § 30-1-5.1; or Cohabited together at some time in the past and was generally reputed to be married. The second necessary allegation is the underlying requirement that the parties marry with the mutual intent to marry.
Once it is established that the parties have sufficiently alleged the presence of a common law marriage, the focus of the inquiry is on the evidence that supports or undermines the existence of a common law marriage.
Evidence of Cohabitation
The most direct proof involves evidence that the parties cohabited as husband and wife. Often, the questions posed to witnesses as to whether there was cohabitation involve testimony that establishes the following: Reputation of Marriage. Once the element of union between the parties has been adequately alleged, the burden shifts to the party asserting that a common law marriage exists to prove that this union was forged with the mutual intent to marry. The intent of the parties is usually shown through evidence of evidence that the parties held themselves out in the community in a way suggesting they were married. In other words, this evidence goes to the parties’ reputation or representation of the marriage. Evidence of reputation is a critical component of establishing the existence of a common law marriage. It is also notoriously difficult to establish as it is typically self-serving and is limited to things such as testimony that the parties thought they were married; referred to one another as husband and wife; communicated with friends and family about getting married; filed joint tax returns; executed mutual wills; and engaged in conduct suggesting their mutual intent to marry.
For example, the court in Allen v. Gray presented evidence that the Allen had represented himself as being in a marriage and consequently been rejected by his church that was opposed to divorcees remarrying. People in the community testified that Allen held out Gray as his wife. Other community members acknowledged that the couple had attended functions or social events involving Allen’s business contacts where they presented themselves as husband and wife. The court treated this evidence as conclusive, and dismissed the probate proceedings initiated by Allen’s children.
Common Law Marriage Legal Rights and Duties
In terms of legal rights and responsibilities, Utah’s common law marriage is equal to the rights of a formal marriage. This may seem obvious since there has been a marriage, but what does that actually mean and how does that affect you?
To put it simply, a common law marriage in Utah means that you have all the same rights and privileges, as do your children, as if you had gone through the proper ceremonies of a formalized marriage. In short, it is a marriage in every sense of the word without the legal paperwork to prove it.
In Utah, every married person has the legal right to:
In addition to these rights granted to married people in Utah, when a common law marriage has been established, the following extra rights apply to common law spouses:
The rights of children are pretty straightforward , as they have the same standing as children born to legally married couples. The one extra step is that the marriage must be proven to the court if it is ever challenged. This is generally done when there is a divorce or a death, and either spouse wants to claim rights to an estate, support or custody of the children, so extra proof of marriage is required.
In any Utah divorce, the most complex issues tend to be the allocation of assets and debts, and the most important issue for married couples – children. Custody of children, child support, visitation, where the child lives, as well as cost of living concerns all come to a head during divorce settlements. The same is true when common law marriage is found between a couple.
Dissolving a Common Law Marriage
If you want to dissolve your common law marriage, you must file a petition in the district court for the district in which you reside. This is done in essentially the same way as a divorce proceeding, and requires you to follow the same legal proceedings that are necessary to end a regular marriage (if you have one of those btw, good luck in the next several weeks). You may need to prove to the court by clear and convincing evidence that your "marriage" is invalid. You will be required to work out alimony and the equitable division of any combined property you may have had after the court declares that your marriage never legally existed. Common law marriages can be ended just like a regular marriage. Again, you may end up having to do all the paperwork yourself unless you have an attorney.
The Effect of New Laws
The most recent change to the law in Utah regarding common law marriages arose on November 20, 2014, when the Utah State Court of Appeals ruled in the case of State of Utah v. Barlow that all formalities of a marriage must actually occur (marriage license and solemnization), and that the court would not recognize a common law marriage formed in another state where a license was required but was not procured. The appellate court in that case concluded that a Utah statute requiring a marriage license to be procured and that the marriage be solemnized (as is usually done by a judge or religious leader) was a condition precedent to marriage. The Court of Appeals upheld the lower court’s ruling, and the Supreme Court of Utah declined to hear the case. Thus, as of March 2017, Utah law requires both the procurement of a marriage license and the solemnization of the marriage to create a valid marriage in Utah.
Common Law Marriage FAQs
What is the "ceremony" requirement for a common law marriage?
This is probably the biggest misconception about common law marriage in Utah. For a common law marriage to exist, the parties must agree that they are married and completely intend to be married. Many people believe it takes a formal ceremony, like a wedding, performed by an officiant and with a marriage certificate to have a valid marriage. That is not the case. Even a full-blown wedding reception isn’t required so long as the parties intend to be married, plan to live together going forward, hold themselves out to others as married, and have capacity to be married (i.e., be of age, not already married, etc.).
So, if I just set up my boyfriend’s mom as "The One" on my Facebook, and we check in at restaurants as "Name plus name" or some other stupid couple thing, is that enough to constitute a common law marriage?
Not by itself. Facebook is not an official government entity . Now… what if you posted that relationship status for a year, your boyfriend’s mom is listed on your Social Security record as your emergency contact, you file taxes as "Married Filing Joint," and that status is up everywhere you can think of? Add those factors to our previous factors and congratulations, your facebook statuses may just have given rise to a common law marriage.
So, if I want to get a divorce from a common law spouse, do I need to do anything different?
In short, no. You go through the same procedure as a formal marriage for a divorce. Of course, first you’ll want to decide whether you really have a common law marriage or not…
Can a common law spouse be entitled to alimony?
Alimony in Utah is sometimes called "spousal support" or "spousal maintenance." And the answer is yes, the situation would be the same as a formal marriage. Common law spouses are not entitled to alimony.