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What Is a Common-law marriage? Definition, Uses and Importance.

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Common-law marriage is a legal term that refers to a relationship between two individuals who choose to live together without the benefit of a legal marriage ceremony and marriage certificate. For various reasons, some people may decide to forgo the laws of marriage. 

No marriage license or civil ceremony is required for a couple to be recognized as legally married under this agreement. However, this term may not be applicable in every state. Some states regard a couple as married as any other traditionally married couple if they meet certain requirements like living together for a specified number of years.

Why is common-law marriage in Probate important?

In Probate, common-law marriage enables partners to marry legally without the need for a ceremony, witnesses, or a marriage license. This means that both partners are still entitled to Inheritance rights, property division, and alimony.

Do you want to know what it takes to become a legal heir or beneficiary even if you were not traditionally married to the deceased? Read this article that clarifies what an heir/beneficiary really is.

How is common-law in Probate structured?

A common law marriage is not any easier than a traditional marriage for inheritance reasons, and in fact, it’s more convoluted. If your common-law spouse died without a will, your spouse’s relatives might file a petition with the court to claim the property because the two of you weren’t legally married.

The state must first and foremost approve the arrangement. To become common-law spouses, a couple who wishes to marry in the future must meet specific conditions. Requirements such as these may or may not be included.

Being in a committed relationship for a predetermined period;

  • Legally, both partners are entitled to wed.
  • Each partner must be at least eighteen years of age;
  • Neither partner is being compelled into the arrangement against their will or is under any duress; and
  • No one can be married to more than one person at a time.

Your common law marriage must be legally established before you may collect your rights as a spouse and move on. You could lose your inheritance if you fail to meet even one of your state’s common-law marriage criteria.

If you want to litigate on behalf of your spouse in a common-law marriage, things get a little more tricky. You cannot sue your employer for negligence unless you prove that you and your spouse have a legally enforceable relationship. 

This is the case, for example, when your spouse dies in a work accident. Before filing a lawsuit for neglect, you must first prove that you meet the legal conditions for a common-law marriage. A traditional marriage would allow you to instantly sue on behalf of your spouse if such were the case.

Common-law marriage vs. Traditional marriage

For a common-law marriage to be divorced, a trial may be necessary, taking longer and costing more than a divorce from a more traditional marriage. If your common-law spouse died without a will, your spouse’s family may file a petition with the court to claim the property.

As a general rule, people believe that a common-law marriage is different from a “real” marriage. That’s not the case. For legal purposes, a common-law marriage is identical to an actual marriage. A common law marriage, for example, can’t be ended by “breaking up.” It can only be dissolved by divorce or death, like a regular marriage.

The proof is what makes the difference. A marriage license and a ceremony are required for traditional ceremonial marriage. A Declaration of Informal marriage, which can be obtained through the county clerk’s office, can prove a common-law marriage. The majority of the time, though, there is no written record. As a result, the marriage is supported by some required evidence.

Also read: How to Find Out What Your Probate Inheritance is Worth

History of common-law marriage

Until Lord Hardwicke’s Act of 1753, common-law marriages were legal in England. Couples crossed the border to avoid the ban for many years after the law was passed. The Council of Trent (1545–63), which mandated that marriages be performed in the presence of a priest and two witnesses, made common-law marriages illegal in Roman Catholic countries across Europe during the Middle Ages.

The British colonial authority in Africa did much to destroy the equivalent of common-law marriages in Africa. Still, the independence of African states has led to a reemergence of what is called customary marriage, although specific legal procedures, such as registration, exist.

As recently as the second half of the twentieth century in the United States, common-law marriages were recognized in around one-third of the states (if entered into before a specific statute-defined date).

The only criterion for a common-law marriage was mutual consent to engage in marital intimacy. Nonetheless, these marriages were subject to the same restrictions on age and sex as traditional marriages. An incorrectly performed wedding ceremony (e.g., due to an error on the marriage license) was sometimes accepted as a common-law union.

Synonyms for Common-law marriage

  • Endogamy
  • Marriage of convenience
  • Spousal relationship
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