What is a common-law marriage?

June 2, 2017 | Author: | Posted in Legal

A common-law marriage is a marriage by mutual consent alone, without license or ceremony of any kind, either ecclesiastical or civil. Unions of this kind are said to be consensual, that is, existing merely by virtue of consent or acquiescence.

Common-law marriages, without either license or ceremony, are validated by the courts in most jurisdictions if proper proof is submitted, or if children and property are involved. For instance, Chapter 199, Section 12, of the New Jersey act of 1911 concerning marriages provides: “Nothing in this act contained shall be deemed or taken to render any common-law or other marriage otherwise lawful, invalid by reason of the failure to take out a license as herein provided.”

It is erroneous to suppose that the law recognizes a common-law wife or husband as distinguished from a legal one. Common-law in this relation is employed merely to distinguish what is known as a “simple contract marriage” from a ceremonial marriage.

In many states of the Union if a man and woman live together for one day or more under an agreement to be man and wife, they are legally married, although they may obtain no license and have no ceremony performed. On the other hand, if they live together for forty years without such an agreement, they are lover and mistress in the eyes of the law and as such are subject to the penalties provided.

Whether a man and woman are to be regarded as common-law husband and wife depends on their ability to produce evidence that the necessary agreement existed. The evidence may consist of writings, declarations, or merely the conduct of the parties.

In some states attempts have been made to outlaw all common-law marriages by statute. In England before the reign of George II (1727-1760) any marriage could be contracted merely by verbal consent without civil or religious license or ceremony.

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