All across the United States people of all ages are making a choice to live together in a long-term, committed relationship. Some simply call it “living together.” Some call it “cohabiting.” Lately the term “domestic partnership” has become more popular particularly in same-sex relationships.
For all intents and purposes, many of these cohabiting couples, whether heterosexual or same-sex, act like a married couple. They share bank accounts. They buy property together. They make major decisions together. They may even be raising children together.
However, technically they are not married because they haven’t had the official marriage ceremony.
There is a common belief that if you live together for 7 years, then you are married by “common law.” This is simply not accurate. Only a few states recognize “common law marriage. And, Massachusetts is not one of them. (The closest state to us that does is Rhode Island).
In states that do recognize the doctrine, there are generally 3 elements to determine that a couple is in a common law marriage: 1) that the couple has agreed that they are “married,” 2) that they live together, and 3) that they hold themselves out to the community as being married. When a couple “holds themselves out” as being married, they are telling the world through their conduct that they are married. So, just “living together” is usually not enough to create a common law marriage; the couple must do something to “tell the world” that they are married.
Even though they haven’t obtained a marriage license, they are considered married in the eyes of that state’s law. So, they must play by all the rules of “regular” married people. If they end the relationship they must get a divorce through a formal divorce proceeding and their property is subject to division. But, they also enjoy the benefits of “regular” married people too. In some states, both parties of the common law marriage have a say when it comes to the other person. If one gets into an accident and is disabled, the other can be at the hospital as a “family member.”
If the couple lives together in a common law marriage state and they don’t want their relationship to become a common law marriage, then they must be clear that their intent is that the relationship not become a common law marriage. It is recommended in that situation that the couple put their intentions in writing so that there is no question about their intent. (i.e., give an example of the type of writing that might be used – i.e., John Smith and Jane Jones hereby agree as follows: that they have been and plan to continue to live together as two free, independent adults and that neither has never intended to enter into any form of marriage, common law or otherwise.”)
If you live in a state like Massachusetts that does not recognize the doctrine of common law marriage, then there is no way to form a common law marriage no matter how long you live with your partner or how you hold yourselves out to the community (i.e., you refer to yourselves as husband and wife to everyone in your community even though you haven’t legally married in a formal ceremony with a license). If that couple breaks up, they aren’t married by common law, it’s as simple as that.
By whatever term you may use to describe these living arrangements – ‘living together,” “cohabiting,” or “domestic partnership” there are many different legal areas, some rather serious, that impact the couple: child custody, insurance, property ownership, and estate planning just to name a few. In coming blog posts, I’ll address some of these legal issues.