What is Common Law Marriage?
Common law marriage is a term that is often thrown around in popular discussion, but what does it actually mean? According to the Utah House of Representatives, "common law marriage is a marriage not solemnized by a religious or civil ceremony but rather established by the parties’ own actions." This type of relationship exists when a couple follows certain patterns and behaviors that have been recognized as creating a legal marriage by the courts.
A common misconception about this type of relationship is that some type of contract needs to be formed. However, parties merely need to hold themselves out to the public as a married couple. Even if the parties have verbally expressed that they do not intend to be married, the court will still consider them common law spouses if they act as though they are married.
Some of the hallmarks of a common law marriage are to live together, identify one another as husband and wife, share a joint bank account, file taxes together, and generally conduct your lives like a married couple would .
Historically, common law marriages have been recognized in the United States since before the Civil War. The idea was that people should not be forced to marry in a civil or religious ceremony when they live as if they were married. The U.S. supreme court held in Green v. Lessee of Neal, that "a man and woman alike, by living together as husband and wife, and cohabiting with each other, with the assent of the other, may make "for the purpose of the state, a valid marriage." This holding meant that for the purpose of the state, the common law marriage was valid.
While many believe that common law marriages are not recognized in Utah, Utah House Representative, Rep. Paul Ray, states, "Utah recognizes common law marriage that occurred prior to 1895… You had to have the intent…You could not have been married in any other state."
In Utah, individuals who wish to prove their marriage under common law must prove that they had the intent to get married. This means that they need to provide clear and convincing evidence of their intent.
Is Common Law Marriage Legal in Utah?
Utah does not recognize common law marriages. Any efforts to avoid common law marriage for legal purposes would have to be undertaken in a state that does recognize the institution. Subsequent attempts to enforce the terms of the agreement would not be permitted in Utah. Utah does not recognize any common law unions entered into after April 24, 1890 (the Wilford Woodruff Manifesto), except for limited exceptions as to parties who entered into a common law marriage in Oregon prior to 1961 and where both partners are mentally incapacitated.
Common law marriage in Utah is considered void on public policy grounds. Parents and siblings of the couple must be able to assert the relationship. For example, a sister of one of the parties can Quo Warranto to break up an illegal marriage. But, this type of action is only allowed in very limited circumstances. However, Utah still does recognize the concept of domestic contracts or agreements (as referenced above). Such contracts may be used to enforce the property rights of the parties entered into by contract. These contracts are available to all persons while they are single.
Common Law Marriage Requirements in Utah
For a couple to be recognized as common law married in Utah, they must meet specific criteria. Most importantly, a couple has to live together for a minimum 10 years. If the couple is the biological or legal parent of a child who is a minor, then the 10-year requirement doesn’t apply and they will be legally considered married regardless of how many years they actually live together. There are also other requirements that have to be met, dictated by the nature of the couple’s relationship. They are as follows:
• Significant time living together
• Financial interdependence
• Shared responsibility in raising children (if applicable)
• Intent to be legally bound by marriage or have a relationship similar to one
As you might expect, proving cohabitation and intent to marry when attempting to establish common law marriage is difficult to do, which is why Utah does not allow any new common law marriages to occur in the state.
The Pros and Cons of Common Law Marriage In Utah
In addressing the potential benefits and challenges faced by couples in common law marriages in Utah, there are several legal protections to consider. Couples in common law marriages may be entitled to spousal support or alimony, similar to formally married couples. This may provide financial security for one partner during separation or divorce. Additionally, property rights arising from common law marriage are similar to those enjoyed by traditional married couples. For example, if a couple has purchased a home together and their relationship ends, they may have an equal right to ownership even if only one party was the titleholder. When it comes to property acquired prior to the marriage, Utah operates under equitable distribution principles. There are case law examples of courts applying these principles to a common law marriage. For example, in Reya v. Reya, the Court preserved a series of transactions which led to the acquisition of property in joint names , but also reversed the trial court’s order which attempted to distribute separately owned property of the parties on dissolution. The Utah Supreme Court stated "[W]e see no reason to hold that assets and family chores constitute less of a contribution to the marriage than cash wages." 2009 UT 40 (Apr. 22, 2009).
When it comes to the challenges, establishing paternity, division of assets, and potential liability in a divorce or separation may be more complex. For example, one partner may be held responsible for the debts incurred by the other. The burden of proof is on the plaintiff spouse in common law divorce and separation cases. The plaintiff must establish that a common law marriage existed and provide evidence of the property acquired. Disputes over the validity of a common law relationship can be lengthy and costly, often making settlement difficult.
Dissolving a Common Law Marriage In Utah
Ending a common law marriage is similar to ending a traditional marriage. Utah does not recognize common law marriages residing in Utah, but does recognize common law marriages that originated in other states. LaBauve v. Campbell, 2006 UT 18, ¶ 24, 133 P.3d 876. If you are in a common law marriage the process of dissolution is similar to a traditional dissolution; however, the setting for the Occidental Petroleum case is an exception.
In Occidental Petroleum Corp. v. Goodpaster, 2010 UT 1, 223 P.3d 103 (2010), the Utah Supreme Court held "a divorce proceeding pursuant to Utah laws is the proper and exclusive remedy for a spouse to terminate a common law marriage." Id. at ¶ 51. The Occidental Petroleum ruling applied solely to common law marriages between residents of Utah that were under the purview of Utah’s statute, Utah Code Ann. § 30-1-4. Utah Code Ann. § 30-1-4 applies to those who "cohabit in the state." Id. at ¶ 47. Those who reside outside of Utah and have a common law marriage should look to follow the laws of the state of residence for process of dissolution. However, those in a common law marriage living in Utah should look to Occidental Petroleum for the process for dissolution.
Alimony remains a possibility upon dissolution under either circumstance for common law marriage or if you are in traditional marriage.
Legal Representation and Advice
Consulting an attorney after reaching a common law marriage agreement is highly recommended. Even for common law couples that have been together for years, you will need a lawyer if your relationship falters. While you and your partner may be able to come to a written agreement on how to divide your property during a divorce, the courts will have the final say on whether or not this arrangement is enforceable. Sometimes judges trust in agreements made between parties who have worked closely with one another , but there are no guarantees.
Couples may also have joint debts or need to negotiate child custody arrangements, child support, and alimony if children have entered the lives of a common law couple. Again, these are matters which must go through the courts for formal approval. You will need a lawyer to advocate for your interests during the court proceedings. Their familiarity with family law and divorce proceedings will provide you guidance as to how the process will work, and your attorney will be able to help you resolve your legal matters with your former partner fairly and equitably.