Common law marriage defined
In the simplest of terms, common law marriage is a contract, the terms of which have not been expressed in written form, and which has derived from the parties’ implicit promise to form (or continue) a valid marriage. In essence, the parties are promising each other that they are legally married without entering into a formal marriage ceremony or obtaining a marriage license.
Common law marriage is characterized as an agreement (which may be expressed or implied) between two parties to form a single economic unit. As would be expected , the basic characteristics of such a marital relationship mirror those of traditional marriage. The parties must: The crux of the matter is whether the parties intended to be married and whether their actions were consistent with that intent. That is, the mere fact that the parties have lived together under the same roof for a period of time is insufficient to establish a common law marriage. Instead, in Ohio, the Court will determine whether the parties were holding themselves out as a married couple.
What is the common law marriage status in Ohio?
To the extent that any common law marriage exists in Ohio, its existence and consequences are limited to a unique set of circumstances. The current law in Ohio does not recognize common law marriage or provide for its formation or dissolution. In 1969, the Ohio legislature abolished common law marriage, but preserved certain incidents of common law marriage pursuant to R.C. 3105.12 and R.C. 3105.18. Notably, the parties must be heterosexual individuals not having the capacity to marry as a result of: (1) a living spouse; (2) consanguinity; (3) a spouse having the same sex; or (4) lack of legal age eligibility. Parties also cannot have formed a same-sex marriage, civil union, or similar legal relationship in another jurisdiction.
In 2007, the Ohio Supreme Court ruled in the case of Burchett v. Burchett, Ohio St. 3d 3, that whether a common law marriage was created is determined solely by Ohio statutory law and not by Ohio common law. Additionally, since Ohio statutory law does not expressly recognize common law marriage, so long as there was no valid common law marriage prior to 1969, those who might claim otherwise were barred from doing so by the Burchett Court.
Common law marriage requirements in Ohio
In Ohio, the law inquired into whether a common law marriage existed by addressing: "(1) whether the parties entered into a legal marriage; (2) whether they cohabitate; (3) whether the parties entered into a marriage agreement; and (4) whether the parties mutually promised to enter into a marriage agreement."
Usually, because of the passage of time and the absence of documentary evidence, the facts necessary to establish (1) the existence of a legal marriage, and (2) whether the parties entered into a marriage agreement would not be contested. However, the other two elements were far less clear. In other words, if parties to a purported common law marriage challenge the existence of cohabitation or whether the parties mutually promised to enter into a marriage agreement, the trial court may be dealing with a considerably different fact pattern. Fortunately, the Ohio Supreme Court has held that "[w]hile much has been written about the use of common law marriages in Ohio, very little guidance has been supplied as to their creation . . . [T]he better interpretation of [the common law] cases is that they are limited to the situation where a couple desires to enter into a common law marriage and that the parties must have mutual interest in the marriage." The difficulty of proving the parties’ state of mind regarding the union can be seen in the conflicting results of several cases.
In Long v. Long, an Ohio appeals court upheld a trial court finding that a marriage existed between two parties who had lived together for twenty-three years as husband and wife while having several children together. The court stated: "Appellee testified that she did think of appellant as her husband. . . . Appellee and appellant, in 1980, signed two papers setting forth the fact that they were living together as a husband and wife and asking a minister to marry them. Appellee admitted these papers were never given to the minister. Rather, they were filed with a property deed to show that the parties had lived together as husband and wife for twenty years. Appellant and appellee initiated separate legal action in 1980 to have themselves declared married, however they later dismissed the action." (Emphasis added.) The court remained unwilling to find a common law marriage existed, however, because there was no proof that the parties entertained a mutual interest in a legal marriage. Not all courts have been so strict in their requirements.
In another case factually similar to Long v. Long, a couple who lived together for more than twenty years and had a child was held by a trial court to have entered a common-law marriage. Significantly, the parties here filed joint federal and state tax returns for many years, and used the same last name, while they did not share any bank accounts or jointly own a home or car. Notably, the parties also had filed duplicate "Declaration of Informal Marriage" documents. After a subsequent domestic relations case was brought by the mother in this case, the father argued in the course of deciding a division of property that the parties were not married. The court disagreed.
Ending a common law marriage
The termination of a common law marriage can be initiated through the court like a traditional dissolution. Due to the limited number of states where common law marriage is recognized, the parallel process for dissolving a common law marriage and a traditional marriage in Ohio is less known. The termination of a common law marriage is governed by the same standard as an Ohio divorce. Based on the United States Supreme Court decision in Obergefell v. Hodges, Case No. 14-556, 576 U.S. __ (2015), path to termination of a common law marriage likely will include filing a complaint for divorce or dissolution.
In Ohio, dissolution and divorce share similar processes. Parties are required to file their property and debt inventories within 30 days of the filing of a complaint in a dissolution and within 80 days after filing the complaint in a divorce. Parties to a dissolution action must meet same final hearing time frames as parties to a divorce. Also, in both instances, the parties must wait 90 days before their divorce/dissolution actions are finalized. One potential advantage for parties to a divorce is the ability to request a custody determination be made by the court at the time of filing the complaint.
Ohio law states that if a person is granted a divorce, all prior marriages become void. Thus, the termination process of a traditional marriage is the same as that for a common law marriage.
In Ohio divorces, spouses must be residents for at least six months prior to filing for divorce. In common law marriages, parties can meet this residency requirement by proving sufficient domiciles have been established. If parties do not live in a common law marriage state, parties generally must legally dissolve their marriages in the state they live in or were married in if the particular state recognizes common law marriages.
Legal safeguards and restrictions
For those who are in a common law marriage, it’s important to understand how the law protects you or presents challenges for you. While there are federal laws that apply to married couples (and therefore apply to parties in common law relationships), there are many state laws. If you have not registered your common law marriage and are living in a state where this legal status is not recognized, you could run into problems if you seek a divorce from your partner.
If you’re in a common law marriage, courts in Ohio will treat you as a married couple and apply the same legal standards to analyze your situation as they would in a traditional marriage. You will be entitled to the same protections from abuse as traditional marriages and at times can get an injunction under certain state domestic violence laws. There are certain materials that must be filed with the state if you seek a divorce or other remedy. If you have children, you can pursue child support, custody and visitation as a married couple would. Likewise, child support for biological children of the relationship is available to provide financial assistance. These are all issues that traditional marriages are subject to, and courts make no distinction as to the nature of the couple’s relationship when ruling.
The only major challenge that a couple in a common law marriage may face involves division of property. When Ohio granted same sex marriage the same rights and protections as traditional marriage , the requirements for common law marriage were updated to allow same sex couples to enter into common law marriages. Aside from the change in verbiage, nothing is different. Since division of property is typically based on the duration of the marriage, this can present a problem for a common law couple depending on the time frame of the relationship. For a traditional couple, the date of marriage is the date on which property was acquired, and property may be divided in part according to each spouse’s contributions and separate interests. Even though Ohio now allows common law marriage for same sex couples, this does not change the substantive law regarding distribution of property. Therefore, for couples who have been in long term common law marriages, it may be difficult to divide property fairly, since the very nature of the relationship (with its "under the table" status) may have kept one or both parties from making substantial economic contributions. Also, many same sex spouses did not seek to formally marry when same sex marriage was illegal due to privacy concerns. Without a legally recognized marriage in the state, it may be more difficult for a judge to assess how marital assets should be divided.
Questions about common law marriage
As with any area of the law that has been around for a long time, there are a number of myths and misconceptions surrounding the topic of common law marriage in Ohio. This FAQ is designed to answer some of the most commonly asked questions on the subject.
Q: What exactly is common law marriage?
A: A common law marriage is a relationship between two people where they hold themselves out to the world as being married to each other, but without the benefit of having gone through a civil or religious ceremony. Common law marriages date back to ancient Rome, and were common in many early European cultures. Today they are recognized by many states as a valid form of marriage.
Q: Is there a common law marriage in Ohio?
A: Not anymore. Ohio used to recognize common law marriages that occurred prior to 1991, when the Ohio legislature enacted a statute declaring that no further common law marriages would be recognized. The only exception to this rule is that common law marriages entered into prior to 1991 are still recognized in Ohio for purposes of inheritance rights – i.e., if you were born to parents who were legally married under common law principles, you will remain the child for purposes of inheritance even though your parents’ common law marriage may not be valid today.
Q: What do I need to enter into a common law marriage in Ohio?
A: You do not need to file papers, go before a court, obtain a marriage license or have a ceremony. To be considered common law married, you need not only the intent to be married, but you need to hold yourselves out to the world as being married to each other. For instance, you may file a joint tax return, buy a home together, and introduce each other as husband/wife to family and friends. Once those criteria are met, you would be considered common law married under Ohio law.
Q: Do you have to have sex to have a common law marriage?
A: No, but it is certainly a part of an answer to the question of whether you have held yourselves out to the world as being married to each other. Sex is not the key component, however. The key component is intent – both of you have to clearly intend to be married to one another.
Q: Does having children together mean you have a common law marriage?
A: The fact that you have children together does not in and of itself mean you have a common law marriage. Instead, the question goes back to issues of intent and holding yourselves out to the world that you are married to each other. Having children together makes it more likely that you have held yourselves out to the world as being married to one another, but having children alone is not enough.
Q: Can a same-sex couple enter into a common law marriage in Ohio?
A: Not officially, no. Ohio does not recognize same-sex couples for purposes of marriage, however, this has been determined by the U.S. Supreme Court to be unconstitutional. Therefore, according to federal law, you can enter into a common law marriage in Ohio regardless of your sex. But in order to do so, you must hold yourselves out to the world as being married. For same-sex couples, that can often be problematic, as most states and certainly the federal government do not recognize same-sex marriage. Instead, they recognize civil unions, which give you only some of the benefits of marriage. Therefore, it is important to remember that common law marriage is a creature of state law only, and not federal law, and that each individual situation is greatly dependent on the particular state’s laws as to common law marriage.
Moving ahead after common law marriage
While common law marriage is no longer an option in Ohio, couples currently residing together in the Buckeye State have both legal and practical options if they want to make their union more official. One option is to take the step towards actually getting legally married – civilly or through a religious ceremony. The requirement for issuing a marriage license is that each individual must at least be 18 years of age. If one is aged 16 or 17, that person must get a judicial waiver to marry, which will only be granted if the other spouse consents to the marriage. In lieu of marriage, cohabitating partners may choose to sign a cohabitation agreement that spells out ownership of property, assets, debts and other related issues. Cohabitation arrangements do not confer legal rights and privileges; however, the terms of any signed agreement are generally legally enforceable in court . Cohabitating couples may also choose to enter into a property agreement that transfers all jointly owned property over to one individual, or they may re-title jointly owned property to separate individuals. Creating these agreements may afford the partners the protection measures they desire, without the formality of marriage. While legitimately married couples may receive several different types of legal benefits, unmarried ones do not have those protections. Unmarried couples are not entitled to asset division as determined by law if they should split. They are also not eligible to take advantage of filing taxes jointly as a couple. Marriage affords many protections and rights to couples, but cohabitation grants private rights to property distribution in a less formal manner, if couples choose to engage them. Depending on their preference as a couple, cohabitation agreements may offer an acceptable alternative to legal marriage.