What is common law marriage?
Common law marriage is when two individuals are deemed to be married by living together in a marriage-like state, despite the absence of a formal marriage and/or marriage license. Generally, for there to be a common law marriage, there must be an agreement between both parties to be married, and they must hold themselves out to the public as husband and wife, despite the lack of a valid marriage certificate. Typically, common law marriages arise in situations where the parties have been together for several years, but never went through the formalities to legally marry. This can happen for many different reasons.
Common law marriages likely arose primarily due to the difficulty of obtaining any type of marriage documentation as settlers traveled west across the United States. Many people traveling through the area of Chicago in the early 1800s did not have a way to obtain a marriage license, which is why it was agreed that if two people traveled together and had established a marital relationship, that party would be legally recognized as "husband and wife," even without an actual marriage license.
In Illinois, there are typically two common law marriage scenarios. The first scenario involves a couple who are living together, presented themselves as husband and wife, and intended to be married. That situation typically applies to long-term relationships in which the parties rejected the idea of a formal marriage. However, it was agreed that they were considered to be married. This is often referred to as "common law marriage by cohabitation and representation."
The second scenario involves a couple who traveled to a location where common law marriages are permitted, such as Colorado, and were married in that location . Because the person lived in Illinois, however, the Illinois courts can be involved in the dissolution of the common law marriage. Common law marriages can be very complex situations and often require that litigation occur to determine the extent of the rights parties have in relation to one another.
The main focus of common law marriage is the mutual intention of the parties to be married. While the duration of the relationship is certainly an important factor, it is not the only factor that the court will consider. Other factors include whether the parties represented themselves as being married to the public, including joint social security or health insurance plans, joint ownership of property, bank accounts, using the same last name, and other forms of co-mingling assets and benefits.
Depending on the situation, parties to a common law marriage may be entitled to all of the benefits available under Illinois law, including palimony or spousal support, and inheritance if the deceased spouse died without leaving a valid will. Parties also have a right to equitable division of their property. Parties should be aware that the benefits of cohabitation and representation are not limited to traditional-type relationships. If the parties intended to be married, cohabited, represented themselves as being married despite not having children, they may be entitled to the rights and benefits of marriage.
It is important to note that, while some states still permit common law marriage, Illinois no longer recognizes such relationships. In fact, after 1905, no new common law marriages can be formed under Illinois law. Existing common law marriages that occurred prior to 1905 and in another state still remain valid in Illinois.
Is common law marriage recognized in Illinois?
No. Illinois no longer recognizes common law marriages that occur within state borders. However, an exception exists for those who enter into a common law marriage in a state that allows the practice and then move to Illinois. In addition, any same sex couple legally married in a state that recognizes same sex marriage and who move to Illinois will legally be considered married in Illinois (even if they never marry in Illinois). But this presumes that they remain married. If they divorce or separate, the presumption that they married in Illinois is not necessarily valid.
While many people believe that a common law marriage can be created if parties "hold themselves out" as married for a time, and/or if they intend to be married at some point, in Illinois, that is simply not the case. In fact, while technically Illinois did recognize common law marriages (during which time diversification on a variety of topics and a variety of sources made it more ambiguous than it ought to have been), the Illinois legislature abolished common law marriages in 1977. By the statute, any relationship entered into from that point forward was not recognized. (Note: Statutes are very different from case law, which constitutes what is known as "the law" in Illinois).
Still, there is case law that suggests that those people who entered into a common law marriage after 1977 but before 1984 (the effective repeal date of the 1977 statute – about a decade after the passage took place) may be considered common law married (or common law divorced) after all. (See, Gordon v. De Santis, 129 Ill. App. 3d 96 (1984). This is a theory of sorts, and the language tends to be somewhat ambiguous, and thus difficult to rely upon. Gordon also protects people who are common law married and divorce at any time from 1984 forward, but it also protects De Santis’ ex-wife from being a spouse rather than "someone he once saw." So that is why it helps both sides of the marital relationship).
What are the alternatives to common law marriage in Illinois?
For those who want the economic advantages of marriage without the legal status, Illinois provides several alternatives that can provide many of the same benefits.
Cohabitation Agreements
Couples who cohabit but choose not to marry in Illinois can opt to enter into a cohabitation agreement that, unlike a prenuptial agreement or post-nuptial agreement, is only effective while the couple is cohabitating. Cohabitation agreements can cover the same issues as prenups and post-nups but are focused on the period of cohabitation, rather than on the termination of the marriage. In this respect, a cohabitation agreement can serve as the basis for understanding how a couple will divide their property upon the termination of their cohabitation. In addition, two cohabitating people may enter into a cohabitation agreement that declares their express intention to marry or provides a procedure for deciding whether to marry. It bears mentioning that the enforceability of cohabitation agreements is not absolutely settled nationwide, and one who enters into such an agreement should do so with the advice of an experienced family law attorney.
Domestic Partnerships
An alternative to marriage for gay and lesbian couples in Illinois is the domestic partnership. Illinois recognizes those unions legally registered in states that recognize domestic partnerships and also recognizes domestic partnerships from other country, provided the domestic partnership was entered into voluntarily and with the consent of the parties. Illinois offers a registration process through which those couples who are not legally permitted to marry in Illinois can formally register their relationship. Domestic partnerships provide significant financial benefits to partners, similar to those offered couples who are married. Domestic partnerships confer the right to have health benefits provided through an employer and the right to take family medical leave to care for a partner’s related illness, among other legal benefits.
What rights do unmarried couples have in Illinois?
While there is no common law marriage in Illinois, most unmarried couples assume they have the same rights as married couples. Unfortunately, this assumption is not true.
Property
For the most part, you can "own" Illinois real property as tenants in common or joint tenants, regardless of your marital status. If you are unmarried, the ownership of the property will have to be established by admissible evidence, such as a deed. While an unmarried couple can agree that property is held as joint tenants, a court will consider all the surrounding facts and circumstances when deciding whether a joint tenancy exists. In Illinois, unmarried couples generally have no presumption or right to acquire property upon the dissolution of the relationship. There is no equitable interest among unmarried cohabitants in a piece of real property if the title to the real estate is held by one party. If two parties own a piece of property as joint tenants, the surviving joint tenant will maintain exclusive rights to all property interests upon the death of the other joint tenant .
Inheritance
Unmarried couples also do not have a right of inheritance if one partner dies without a will. Unmarried partners can name each other on wills, but they cannot pass on benefits through probate. Benefits must be passed to beneficiaries outside of the probate process. For example, you can name your unmarried partner as a beneficiary on a life insurance policy or on your bank account. Otherwise, a court may not award the partner any property upon death. Although unmarried cohabitating couples are not entitled to spousal support or modifications, they may be able to recover damages for the enforcement of joint financial obligations. If an unmarried couple can prove that both parties contributed to the acquisition of joint property or the performance of services, then equitable awards may be appropriate.
Children
If a child is born to an unmarried couple, it is presumed that the father is not the child’s biological parent. The father will be required to undergo paternity testing if he does not consent to the establishment of parenthood.
What to do if you are seeking common law marriage from another state?
If you believe that you had a common law marriage in another state, you may want to try to establish the existence of that relationship through legal proceedings in the Illinois courts, with the intent of having the relationship recognized by the Illinois courts if and when you seek a divorce or a property distribution or other relief. Generally, the courts in a jurisdiction will recognize a marriage that is valid where it took place.
Provided that the initial state was one of the states that recognizes common law marriages, Illinois courts will likely recognize the common law marriage for purposes of limiting a spatial statute of limitation, or for purposes of preventing a spouse from concealing assets. In addition, if the spouse can convince a court that a common law marriage exists, those same courts will likely separate the parties’ marital property, send them on their way much like they would with a couple who obtained a formal marriage license.
There are a number of essential facts that the party claiming that he or she had a common law marriage in another state will need to prove. While there are some differences in the specific requirements for a common law marriage in the various states, you will generally need to show that:
While there are many ways to put these facts into evidence, the preferred methods involve stating your case in a pleading (formal document) filed with the court. If the other spouse does not wish to contest the claim, he or she may consent to the entry of a judgment establishing the common law marriage.
The other side may question whether the marriage is valid. In such cases, the court will hear the evidence as though the matter were a trial and will enter judgment based on the evidence. There are a number of evidentiary exceptions to the rule requiring a common law marriage, however, including:
There is often the challenge of establishing the recognition of a common law marriage if it is invalid where the party claiming the marriage resides. In many cases, the Illinois courts will not recognize a common law marriage if the parties both reside here.
Common law marriage myths
Common Misconceptions About Common Law Marriage in Illinois
One of the most common misconceptions about common law marriage is that any couple that has lived together for some time is considered married under the law. This is simply not true. There is no set amount of time that a couple needs to live together before being considered married. In fact, the law specifically states that cohabitation does not constitute a marriage. That means that even if you and your partner have lived together for decades, you are not married simply because of that fact.
An extension of the misconception that living together constitutes a marriage is the belief that if an unmarried couple is together long enough, they automatically become married . This is also not true. The law does not grant a married status simply because a couple lives together for a certain period of time. A couple must consent to marriage and have their consent witnessed, and they must file the paperwork for a marriage license in the state to which they are getting married.
Some people also mistakenly believe that because they share a residence, they are legally allowed to make decisions for one another if one of them were to become incapacitated. That is not the case in Illinois or other states—without legal documentation such as a power of attorney, your partner does not have the right to make medical or financial decisions on your behalf.