What is Common Law Marriage?
Common Law Marriage, generally, is a concept that refers to a couple presenting themselves as a married couple even without a formal marriage license. For example, a married couple typically receive a marriage license before their wedding and state law recognizes the marriage. Unlike that standard scenario, common law marriage would mean that the parties hold themselves out as a married couple but have not received an official marriage license. A common law marriage requires a few things for it to be recognized: 1) Having capacity to marry (such as, a person over the age of 18); 2) actual cohabitant in a continuous and uninterrupted relationship; 3) intent to permanently remain married to one another; 4) only one spouse has been married at the same time in the eyes of the law; and 5) holding yourself out to be married (such as, using the same last name, describing yourself as husband and wife, etc). These are the general requirements of what a common law marriage is and what it takes to be recognized as such and remains constant across the nation .
Common law marriage has become a widely missed-understood concept and is fraught with many myths as to what it is and how it works, frankly, because of the sparseness of law on this issue. A common law marriage does not mean that you have to have sex (albeit sexual relations can be considered a form of evidence of cohabitation relationship) and there is no specific length of time to establish a common law marriage. In other words, a common law marriage could have only incepted one week ago and take effect immediately.
Although common law marriage is recognized in a handful of states (currently only nine states recognize a common law marriage), Connecticut is not such a state. Connecticut is repealing its Statute on Common law marriages as of October 1, 2017. This means that even if you and your partner begin holding yourselves out to be married from now on in the future, it will not be recognized as such.
Connecticut and Common Law Marriage
Connecticut does not recognize common law marriage. In other words, a couple cannot marry by establishing a common law marriage in the state of Connecticut. This is an important decision on the part of the legislator and the courts. A common law relationship lacks the clear guidelines set forth in a conventional marriage. It therefore leaves many uncertainties if a subsequent divorce or dissolution is needed.
The thought process behind common law marriage goes back to Europe in the Elizabethan days. The idea was that a couple could marry without the Church; instead they could marry by way of intention and living together as husband and wife. While these marriages were valid at the time, the notion of marriage has changed. Most people do not want to be burdened with proving a common law marriage. There are a myriad of different circumstances which could be claimed by the parties involved. This is very impractical.
Fortunately for the public, Connecticut dealt with the difficult situation of common law marriage in 1811 when it passed first the statute, then the common law case of De Battista v. Siskowski, 136 Conn. 125 (1949) stating: First, the common law notion of marriage without a ceremonial marriage is unknown to and has never been recognized in this state; second, the state has a strong public policy against common law marriages; third, the legislature has enacted a specific statute relating to marriage wherein the question of common law marriage is properly resolved; and fourth, there are numerous practical difficulties and problems of a serious nature which would result from the recognition of common law marriages. As we said in Farnum Manuf. Co. v. Crane Co. [112 Conn. 752, 754, 754 A. 721 (1902)], "to permit such a status to attach as the result of any circumstance whatever seems to us as repugnant to our ideas of marriage in this state as it is unwise in its practical consequences."
Because of De Battista, the possibility of common law marriage is no longer a concern for the State of Connecticut.
Effects on Connecticut Couples
For couples cohabitating in Connecticut under the belief that they are "common law married," there could be serious legal implications. Since Connecticut does not have a common law marriage policy, a couple cohabitating under this belief may be at risk of denied legal rights that traditional married couples possess. A few legal implications are:
Parenting Rights – When a couple cohabitates in Connecticut, and later separates, the issue of parenting rights (and child support) will arise. While a couple has the ability to petition Family Court for a parenting plan, a non-biological parent may not be granted parenting rights when the parties are not married. Unlike traditional marriage where a step-parent may have legal visitation rights, and even parenting rights in some cases, an unmarried partner does not have the right to visitation absent the ability to prove "de facto parent" status.
Death Benefits – In the event of the death of one party, a remaining party may be denied certain benefits. For instance, the decedent’s spouse will be entitled to inheritance property, and will have rights to certain death benefits (retirement benefits, insurance benefits, etc.) that unmarried partners are not entitled to. An unmarried partner would have to rely on finding rights under a Last Will or other estate planning document to receive such benefits.
Social Security Benefits – An unmarried partner may not be entitled to spousal support through Social Security in the event of death. Under federal law, there are very specific guidelines (Title II of the Social Security Act) determining whether a partner is legally entitled to spousal benefits. If a couple does not meet the qualifications, an unmarried partner may not be entitled to survivor or spousal benefits.
Health Benefits – Health benefits and/or insurance may be lost. A spouse may carry their partner under health insurance; however, an unmarried partner may not be able to do the same without incurring high costs. Another option is the use of COBRA for qualified beneficiaries which can be expensive, and may be unavailable depending on the employer’s policies and rules.
Common Law Marriage Alternatives
The Connecticut De Facto Marriage – A Common Law Marriage Alternative
Though residents of Connecticut may not enter into a common law marriage, that does not mean they cannot find other legal ways to express their commitment to each other. The state has set up a civil union law that basically gives couples the full rights of married people. This means things like the ability to file joint tax returns, inherit property from each other when one dies, and gain access to the same medical benefits and insurance programs that married people enjoy.
The two people entering into a civil union do not have to determine that they are legally free to marry someone else for the union to be considered legally binding. A civil union is available to individuals of the same sex as well as to those of the opposite sex. Civil unions were formerly called domestic partnerships.
Though protecting the same rights as a traditional marriage, civil unions are not exactly the same as a marriage. The legal language is a little different in places. For example , a domestic partner cannot use their partner’s surname when signing a contract or on some other official document. Likewise, a domestic partner cannot bind their partner to a contract. On most levels, however, domestic partnership and marriage do the same things.
Another less formal option for couples who wish to stay together for the long term is cohabitation. Cohabitation is simply moving in with a partner without such a union in place. Connecticut does not recognize de facto marriages, which are those in which two people give the appearance of being married (for example, by agreeing to a verbal contract of marriage, changing their last names, or filing taxes as a married couple), leaving cohabitants exposed to a pretty big risk.
In Connecticut, cohabitants hold no legal protections in the eyes of the state. When they separate, they have to divide their property fairly through an outside person (a judge) or legally draw up a cohabitation agreement that outlines how property will be distributed. That being said, cohabitation is still a popular option.
Legal Advantages of Marriage in Connecticut
Should you formalize a common law-style relationship with a legal marriage? The Connecticut Supreme Court has clearly recognized that marriage will always have advantages. See Karam v. Karam, 50 Conn. Supp. 180 (1999). Some of those advantages are discussed below.
The Supreme Court held in one case that "married persons enjoy certain rights not available to unmarried persons outside the protected sphere." Karam, supra at 186. Suppose a spouse files for divorce in another state while the other spouse continues to reside in Connecticut. Even if the filing spouse has lived abroad for years, he/she may still obtain a divorce in the foreign state under laws governing that state’s choice of law rules. The spouse who has not moved out of Connecticut usually prevails when that person seeks a legal divorce in Connecticut courts because the Connecticut court applies Connecticut law. This may give the Connecticut resident a significant advantage in asset valuation or for some other reason.
In another case that involved a common law-style cohabitation relationship, the Supreme Court discussed the common law rule "competition between claimants." Karam, supra at 186. When persons make claims, the spouse with greater legal rights usually prevails. This rule also operates in cases involving divorce actions between the parties who were married.
The right to make medical decisions for the spouse is also very important. Karam noted that "[t]he requirements of marriage, such as age, ability to consent, and observance of licensing requirements, reflect this public policy interest [in the institution of marriage], as well as the State’s concern with the interplay between otherwise autonomous private decisions." Id. at 187. A spouse usually has superior rights when it comes to making decisions about medical treatment or medical decisions after one spouse becomes incapable of making those decisions.
The right to inherit property without the requirement for probate may be a significant factor in deciding whether to marry formally. The intestacy rules will apply when there is no will. However, since common law marriage does not exist in Connecticut, the intestacy laws would not apply to these relationships in Connecticut. The non-married partner would need a will to obtain any inheritance upon the death of the other partner.
A spouse usually may also file estate taxes for the other spouse without any other special documentation. This may be important because spouses may essentially split their estate tax payments when necessary. The surviving spouse would not have the same right to settle the estate without proving that the common law-style spouse was legally married.
Action to Take After Moving to CT in a Common Law Marriage
If you moved to Connecticut with a Common Law Marriage (Steps to Take):
Connecticut is one of the few states that does not recognize Common Law Marriage.
If you married under Common Law in another state, you may consider yourself married in Connecticut, however, you should consider what would happen if you and your spouse separated or divorced in Connecticut or were to die in a Common Law Marriage such as:
(a) how will property be divided?;
(b) how are taxes treated?;
(c) how will insurance companies define your beneficiary?;
(d) how will pensions and retirement accounts be treated during a divorce or separation?;
(e) what would happen to you if one of you could not make a decision for yourself?
Each section above will require a different solution to your marital status in Connecticut – does that mean you should marry under statutory law? Maybe. First consider if you really need the legal status recognition to solve any of the above.
For example, lets assume you have been married under the Common Law in another state for many years. If you move to Connecticut and at the time you register to vote or obtain a driver’s license, have the "marital status" question, you may want to consider informing the State of Connecticut of your marital status as a married man or woman in accordance with the law where your marriage took place .
This does not change your legal status under Connecticut law and there are many considerations. If your state of residency or home was in Connecticut, don’t be surprised if you receive an inquiry from the State of Connecticut after you send in your application whether you did go through an official marriage ceremony or process and provide what proof is requested.
Second, what about health care benefits and death benefits? For example for some state employee benefits, you cannot receive health care benefits or pensions unless you can provide notice you are married under statutory law and your spouse signs the necessary documents to qualify for your employment benefits.
Third, taxes and tax shelters. Legally speaking, are you a "dependent" or a legal "spouse" when you file your taxes? While you may want to seek the advice of your tax advisor, if you and your spouse may be eligible for certain tax breaks available to married persons. Likewise, consider estate planning ramifications whether you have a will, life insurance or estate plan. A second opinion from an attorney may be required to be sure you have explained your marital status so that you can take advantage of all the tax and estate planning with your correct legal status.
