What exactly is common law marriage?
Common law marriage is a non-ceremonial relationship that will be recognized when there is a significant period of living together for some time. In some cases, it will be considered a marriage for purposes of property division upon divorce. It is not clear exactly where the origin of common law marriage began, but the customary practice of marriages based on a mutual agreement between two people predates most records of marriage. Other historians claim that society dictated that single women could live with men with whom they chose without the blessing of the church until they could find a husband in good economic standing. Under these conditions , women were considered "common law married" to those men.
Traditionally, a common law marriage does not require a marriage license or a ceremony and only requires the couple to live together and be recognized as married by the community. A couple may have children and have shared property, though not necessarily.
In Washington, D.C., common law marriages are no longer permitted. However, if a couple established a common law marriage before D.C. lifted its ban, the union is still valid.
Legal recognition for common law marriage in the District of Columbia
Common law marriage is not recognized in Washington, D.C. Washington, D.C., is unique in the sense that it never adopted any corresponding common law marriage statutes. The D.C. Council abolished common-law marriage as of January 1, 2010. It also stopped all new common-law marriages from being valid on March 10, 1995. However, it did not nullify the validity of any existing common law marriage as of March 10, 1995, which would continue to be recognized.
Washington, D.C., also does not recognize common law relationships that were valid prior to 1995 in order to afford them spousal rights. This means that same-sex and unmarried coupled relationships, however long they might have lasted, prior to 1995 are unable to obtain rights such as health care coverage. Washington, D.C., does offer domestic partner benefits to its employees, so long as that partnership is registered with the city.
When it comes to wages earned by married and unmarried employees, as well as health care benefits and leave, Washington, D.C., does not make any distinction.
Criteria for establishing a common law marriage in the District of Columbia
The requirements to establish a common law marriage in Washington, D.C. are slightly different from those in Virginia and Maryland. In the District of Columbia, a couple must:
Intent
The intent to conduct themselves as a married couple as confirmed by the actions of the parties. This means that the parties must subjectively intend to enter into a marriage and intend to be married.
Cohabitation
Existence of an economic union or cohabitation attentive to the circumstances indicating that the parties have chosen to live as if they are legally married.
Holding Out
The practice among the general community to publicly hold themselves out to be married. Examples of this can be done through social media, a wedding website or other means such as announcing the relationship to friends or family members.
While the D.C. common law of marriage is not generally favored, adherence to the above requirements can be enough to recognize a common law marriage that existed prior to the repeal date. As a result, however, the common law of marriage is likely to remain an influential factor in inheritance disputes in the D.C. area.
How to prove a common law marriage
Unless and until the marital status is otherwise established by an Order of a Court, the nature of a person’s marital status in Washington, D.C. is presumed to be one of single status. While the presumption in favor of single status may be overcome by proffered evidence of a common law marriage, absent satisfactory proof of a common law marriage the presumption of single status precludes equitable distribution of assets or an award of spousal support.
Because D.C. does not recognize common law marriages, the burden of proving the existence of an alleged common law marriage rests upon the party alleging its creation. A finding of a common law marriage is appropriate only under exceptional circumstances. Conduct which may be persuasive in this regard includes: 1) cohabitation; 2) shared financial responsibilities; 3) joint ownership of property, and 4) reputation or "holding out" as husband and wife to friends and associates. Evidence of the existence of a common law marriage must be of a clear and specific nature supporting the inference that the parties intended to create a common law marriage. Mere concurrence in certain conduct may not be sufficient to establish the existence of a common law marriage.
Advantages and disadvantages of common law marriage
For some couples, common law marriage can be an attractive option, despite the potential challenges. On the positive side, it allows couples to establish a legal basis for their relationship after living together without having a formal ceremony. It establishes inheritance rights, property rights, and spousal support rights. In cases of divorce, determining the splitting of assets, custody and support are often much simpler because they are already established under current state law. Absent an agreement between spouses about the split of property, they may divide all the property in half. If a couple moves to another jurisdiction , many of the benefits of common law marriage will transfer but not all. There are exceptions to the rule, such as where same-sex common law marriages are not recognized.
If you do not intend to go through a formal ceremony to be married but wish to take advantage of the rights of a married person, you should carefully consider whether you have all the protections you need. For many, the cons and pros of common law marriage will be difficult to weigh against each other and you may wish to review your options with an experienced family law attorney to determine what the best course is for you.
Ending a common law marriage in the District of Columbia
In Washington, D.C., a common law marriage terminates by formal divorce or mutual agreement. This means that spouses may dissolve the marriage through one of two options: divorce or annulment.
The former option of divorce carries certain requirements. You must have grounds for divorce and have lived there for at least six months, plus either have a ground for divorce under D.C. law or have lived in the District for at least a year. If you’re seeking a divorce, the same divorce proceedings will end a common law marriage as they would for a ceremonial marriage. There is no special procedure for couples who were married under common law.
It’s important to know that even if you filed for divorce, the judge does not have to grant it. You cannot force a judge to dissolve your marriage if the judge believes there are grounds for preserving it.
The other route by which you may dissolve your common law marriage is an annulment. Annulment does not reverse the marriage in the eyes of the law. Instead, it considers the marriage never having occurred at all. To qualify, you must believe the marriage is invalid for one of the following reasons:
To seek an annulment, you must file a petition with the court explaining the reasons you believe the marriage should be annulled. The court will review this petition and issue its decision. In some cases, you might both agree to an annulment.
An annulment does not affect the rights you and your spouse have to assets acquired during the marriage. If you have children, the annulment will not have any impact on custody or support.
Real-world examples and scenarios
Scenario 1: Addressing the question of whether a common-law husband can receive credit for an alimony payment made with separate property, Wright v. Wright, 728 A.2d 613 (D.C. 1999). Assessing whether a common law "husband" can receive credit against an alimony payment he asserts he has paid to a "wife," the District of Columbia Court of Appeals examined D.C. precedent and concluded that a common law marriage is valid in the District of Columbia. However, because the court had failed to establish a bright-line rule concerning when a third-party "wife" would be entitled to rely on a claim of common law marriage, it was unclear whether this "wife" was permitted to rely on a claim of common law marriage .
Scenario 2: Resolving a conflict over whether a former spouse could bring a common law marriage claim as a defense to a partition action, In re Alexander, 663 A.2d 808 (D.C. 1995). Adjudicating a conflict between the executor of a deceased couple’s estate and the testator’s former spouse, the District of Columbia Court of Appeals reversed a Family Court’s decision rejecting the former spouse’s claim to the decedent’s half interest in the couple’s house, because in a partition action, a person claiming a common law marriage "has the burden of proving the existence of the marriage by a preponderance of the evidence."