What is Considered Common Law Marriage?
Common law marriage is a legal concept that has its roots in the practice of court decisions in England during the 1300s, which essentially created marriage in the absence of a formal ceremony, if the parties had the intent to marry and were otherwise legally eligible to marry. This form of union was brought to America by early colonists and has continued with some differences across various jurisdictions. It is important to note that there are very few states still recognizing common law marriages today, and much of this is due to the fact that every state has specific statutory requirements for marriage, which do not include common law marriage.
Nevertheless, where the conviction of a common law marriage exists, the law treats it no differently than a more traditional type of marriage. In many states, the passage time is often one of the most critical factors , and how long the parties have cohabited (i.e., lived together) can dictate whether or not a common law marriage will be recognized. That said, there is no universal rule about the length of cohabitation. Some states recognize common law marriages as short as 6 months cohabitation, while others require 7 years or more, and still others do not have any duration requirement.
Besides the duration of cohabitation, other common criteria that are used by various jurisdictions to determine the recognition of common law marriages are:
Historically, Illinois specifically rejected common law marriages in 1905. However, if the value of a common law marriage is being considered, then it would also be pertinent to consider the Uniform Enforcement of Foreign Judgments Act, which allows an out-of-state judgment that recognizes an Illinois common law marriage and meets certain conditions to be extended in Illinois.
Common Law Marriage in Illinois: Legality
Illinois does not recognize common law marriages, whether such a relationship is established in another state or within Illinois. Moreover, even if you have been in a long-term committed relationship, you are not married in the eyes of the law. While a long-term relationship may feel like marriage, it is vitally important to understand the provisions that could be lacking should a couple not formally enter into marriage.
For example, when a child is born to a married couple, each parent has legal rights to the child, such as having the ability to make medical or educational decisions for a child. When an unmarried child is born to an unmarried couple, both parents do not initially have these powers. In the eyes of Illinois law, unmarried parents do not have these powers unless and until both parents sign a Voluntary Acknowledgment of Paternity before the child is born, or through an order of paternity from the court.
The absence of such a legal status creates potential issues for unmarried parents. For example, should an unmarried father and mother cease to cohabitate, the father would not necessarily have any power to make decisions regarding the child’s care. Having a child with an unmarried partner creates uncertainty, and perhaps loss of rights one formerly had in a traditional marriage.
How Long is the Duration of a Common Law Marriage?
The duration requirement of common law marriage is fairly straightforward in Illinois. Under the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/201), the period required to establish a common law marriage is 9 consecutive months. Notwithstanding, the duration requirement is the most misunderstood element of common law marriage, even among attorneys.
The most common misconception is that it is necessary for a couple to live together for 9 full months in order to qualify for a common law marriage. This is a critical aspect of the law because this 9 month requirement is a continuous period, not applied in a cumulative fashion. If a couple is in a continuous relationship with no intention of its coming to an end, then they can meet the 9 month period requirement even if they do not live together.
For example, a husband and wife may in fact be considered "married" under the common law even though they have not cohabitated for a total period of 9 months. This would result in the death of one of the spouses. The court would likely hold that this person had a common law spouse entitled to inherit from his estate even though they only lived together for 30 days before his death.
When Cojinstruing the meaning of the 9 month requirement, the court will consider the couple’s intent and their public representations. For instance, an out-of-state couple who had a civil ceremony in Order to effectuate a legal marriage in their home state likely has the requisite common law intent and public representation to establish a common law marriage in Illinois.
In determining whether a common law marriage exists, the attorney handling such a case should advise his or her client to produce clear and compelling evidence to establish the appropriate timeline required by statute. This is critical if one spouse dies intestate or without a will or other estate plan. Section 2 of the Illinois Probate act (755 ILCS 5/2-1) cites to the Surviving Spouse’s right to receive statutory shares of the deceased spouse’s estate. If the husband did in fact establish a common law marriage with the decedent, his share would be equal to that of a surviving spouse and he would also have right to a lifetime distributive share.
This is only relevant if the couple lived together for 9 continuous months in the relationships. The spouse who was living with the decedent would likely also be entitled to an elective share under the probate statute if he occupied the residence and resided there exclusively with the deceased spouse for a period of 3 months prior to the death of decedent.
Exceptions and Recognitions for Common Law Marriage
Just because common law marriage is not permitted in a state, does not mean that if a couple was validly married via common law in another state and later moves to a state that does not allow common law marriages, they will be denied spousal rights in the new state. The Full Faith and Credit Clause of the Constitution does require that states recognize marriages that were entered into in a state that allows common law marriage . Therefore, in Illinois, if you are legally married via common law in one of the states noted above, and later move to Illinois, you and your spouse have full rights as a legally married couple. Unfortunately, the reverse is also true and even though you may get married some place that allows common law marriage, when you move to Texas where common law marriage is permissible, if the respective state does not recognize it, you may end up in litigation over whether you are or are not married.
Illinois Nonmarital Alternatives
For unmarried couples who wish to avoid formal marriage, there are alternative legal arrangements that can provide some level of protection. A cohabitation agreement is one such option. These are essentially contracts agreed upon by the parties that set forth the terms of their relationship, including but not limited to property rights, financial support, and child custody. Cohabitation agreements uphold much of the same formality as prenuptial agreements. However, under Illinois law, Illinois courts do not have the authority to enforce these agreements or adjudicate disputes. Because cohabitation agreements are not binding, keeping evidence of assets and all financial transactions is highly recommended so that in the event you and your partner part ways, the assets and expenses can be divided fairly.
A domestic partnership is another option besides formal marriage. Under the Illinois Domestic Partnerships Statute, unmarried couples can apply to the circuit court of the county where they meet certain requirements, such as being at least 18 years old, not related by blood, and residing together for six months or longer. Their application must also include proof of financial interdependence (bank statements, credit card bills, etc.), proof of health insurance coverage, and proof of identity of both parties. The evidence presented must demonstrate that the parties are living together and that they meet the requirements stated above. If their application is approved, they will enter into a domestic partnership, giving them certain privileges regarding adoption and health care decision making.
Legal Advice and Factors to Consider
It is always wise to consult with a qualified attorney to fully understand your situation. No two sets of facts are exactly alike. For example, while common law marriages are no longer recognized in Illinois, some states do abide by common law marriages. Accordingly, if you and your spouse in Illinois are considering moving, you should find out the laws of the state to which you will be relocating prior to moving, especially if you have accumulated substantial assets between you. Once you move to another state, or country, you may lose your ability to file for divorce in Illinois and be subject to the divorce laws of your new location.
You should also have the assistance of a qualified attorney to work out your spousal rights regardless of the laws of the jurisdiction in which you establish your residency. If you are a married couple living in Illinois , you have the rights and obligations of married people. If you have been living together in a common law marriage elsewhere and move to Illinois, you may not have the same rights and obligations of being married but they will very likely remain the same as long as you were married where you previously lived. If you are unmarried but living together and wish to engage in a written agreement as to your rights and obligations, you should seek legal advice prior to drafting and signing such an agreement.
A qualified attorney can help you decipher the intricacies of both marriage and non-marital cohabitation.