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Perhaps you and your partner have been together for a long time – maybe even many years. You’ve lived in the same house, shared the same bills, divided the chores – basically, you’ve lived life together, much as any legally married couple would. So you may find yourself wondering, are you legally married? It’s an understandable question – especially considering that many people are familiar with the term “common law marriage,” a term that’s been around for quite some time.

Certainly, there are legal benefits to being married – and there are also legal consequences when a marriage ends. As a result, it’s important to understand the basics about common law marriage – what qualifies, and in which cases states might recognize a common law marriage as valid. Let’s take a look at the history of common law marriage and a few of the basics together.

A Look at the History of Common Law Marriage

In essence, a common law marriage is a legally recognized marriage between two people who have not purchased and signed a marriage license, nor had an official wedding ceremony performed.  Common law marriage is historically rooted in old English law, where it was widely allowed hundreds of years ago for those couples who lived together and functioned as a married couple but never had an official ceremony. In those times, it was often difficult to travel or find someone to officiate a wedding, and having children out of wedlock was certainly considered socially unacceptable. As a result, common law marriage served the purpose of legitimizing a couple’s decision to live together as husband and wife and provided a way to pass on property after death.

Common law marriage used to be recognized by many states in the United States, although that list has diminished over time. Today, only a few states continue to have statutes recognizing common law marriage – and North Carolina is not one of those states. According to North Carolina General Statute §51-1, a marriage can only be created in the presence of an ordained minister of any religious denomination, or a magistrate, along with a declaration from the officiant that the parties are joined by matrimony. 

Ultimately, the only way that North Carolina courts will recognize a marriage as a valid common law marriage is if the couple entered into a valid common law marriage in a state that still recognizes common law marriage, and then moved to North Carolina afterward. This is because of the Full Faith and Credit Clause of the United States Constitution, which requires all states to recognize marriages as valid if they were considered legal in the state where they took place. If you believe that this may the case in your marriage, you will want to consult with an attorney who can advise you as to your particular circumstances, and how the law may apply.

Requirements for Common Law Marriage

There might be any number of reasons why a couple decides not to get married. Sometimes, couples feel like a legal document or an official ceremony isn’t necessary to formalize their commitment. In other cases, they don’t want to spend the money on a lavish ceremony or a big party. In still other cases, couples may simply be content living together and plan to have an official ceremony eventually, but simply haven’t done so yet. Whatever the reasons, sometimes, couples simply don’t officially tie the knot. In certain states, they might be recognized as having a valid common law marriage, if they can meet the following requirements:

  • Be eligible to be married and live in a state that recognizes common law marriage: As noted above, North Carolina is not one of those states. Only couples who move to North Carolina with a valid common law marriage from a state that still recognizes those marriages are eligible to be recognized as married in North Carolina without an official ceremony and marriage license.
  • Intend to be married, act, and hold themselves out as a married couple in all circumstances: There are many ways to do this. Some examples might include opening a joint bank account, using the terms “husband,” “wife,” or “spouse” when referring to each other in public, using the same last name, wearing wedding rings, or other similar actions that demonstrate an intent to be married. 

Contrary to popular belief, there is not necessarily a particular amount of time that a couple has to remain living together and holding themselves out as a married couple to be considered married under common law in the states that allow it. 

For those who have a common law marriage that is legally recognized, it means that those couples have the same rights and legally recognized benefits as any other married couple. That includes tax breaks and addressing other tax issues, property rights, access to retirement accounts, and everything else that comes with being an officially married couple in a legal sense. On the other side of the coin, it also means that when a couple decides to end their marriage, they must do so just as any other legally married couple does – with a divorce.

Obtaining a Divorce After a Common Law Marriage

Divorce is difficult even under the best of circumstances – and this can particularly be true for couples who have a common law marriage, largely because of the element of intent. Without an official marriage license, establishing that the parties actually intended to be married can come down to one partner’s word against the other. In many cases, the dispute arises when there are financial issues between the partners, and one might have a significantly higher income or more assets than the other. When the couple separates, the economically disadvantaged partner is often eager to have the marriage recognized as legally valid, while the other partner is not.

If a couple married under common law is seeking a divorce in North Carolina, however, then it often means that the element of intent was probably already established in the other state, although, of course, evidence will still need to be provided.  The best course of action for those couples who live in North Carolina and wish to seek a divorce from a common law marriage that was established in another state is to contact a North Carolina family law attorney for guidance and assistance. The law can be complex and confusing, and it’s usually not in either party’s best interest to try to navigate the divorce process alone. At The Law Office of Dustin McCrary, that’s where we come in. We’re here to help you find the best way forward during this difficult time in life.

Call The Law Office of Dustin McCrary Today

Without question, the law can be complex, and every couple has their own unique set of circumstances. If you have additional questions about common law marriage or any other aspect of the divorce process, and you want to move forward but aren’t sure how, call The Law Office of Dustin McCrary today. We have extensive experience handling every aspect of the divorce process, and we’re passionate about helping you move forward through difficult circumstances and on to a bright new chapter ahead. Contact us at any time. We look forward to helping you soon. 


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