Currently, only
9 states (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma, and Texas) and the
District of Columbia recognize common-law marriages contracted within their borders. In addition, five
states have "grandfathered" common law marriage (Georgia, Idaho, Ohio, Oklahoma and Pennsylvania) allowing those established before a certain date to be recognized. New Hampshire recognizes common law marriage only for purposes of probate, and Utah recognizes common law marriages only if they have been validated by a court or administrative order.
- Only for common law marriages formed before January 1, 1997 (1996 Georgia Act 1021).
- Only for common law marriages formed before January 1, 1996 (Idaho Code § 32-201).
- Common law marriages effective only at death. (N.H. Rev. Stat. Ann § 457:39).
- Only for common law marriages formed before October 10, 1991 (Lyons v. Lyons 621 N.E. 2d 718 (Ohio App. 1993)).
- Only for common law marriage formed before November 1, 1998. (1998 Okla. SB 1076).
- Texas calls it an "informal marriage," rather than a common-law marriage. Under § 2.401 of the Texas Family Code, an informal marriage can be established either by declaration (registering at the county courthouse without having a ceremony), or by meeting a 3-prong test showing evidence of (1) an agreement to be married; (2) cohabitation in Texas; and (3) representation to others that the parties are married. A 1995 update adds an evidentiary presumption that there was no marriage if no suit for proof of marriage is filed within two years of the date the parties separated and ceased living together.
- Administrative order establishes that it arises out of a contract between two consenting parties who: (a) are capable of giving consent; (b) are legally capable of entering a solemnized marriage; (c) have cohabited; (d) mutually assume marital rights, duties, and obligations; and (e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife. The determination or establishment of such a marriage must occur during the relationship or within one year following the termination of that relationship.
- Kansas law prohibits recognition of common law marriage if either party is under 18 years of age. (2002 Kan. Sess. Laws, SB 486, §23-101).
- Pennsylvania law was amended to read "No common-law marriage contracted after January 1, 2005 shall be valid." (Pennsylvania Statues, Section 1103)
Many states have abolished common-law marriage by statute, because common-law marriage was seen as encouraging fraud and condoning vice, debasing conventional marriage, and as no longer necessary with increased access to clergy and justices of the peace. (For example: Cal. Civ. Code § 4100; N.Y. Dom. Rel. Law § 11 ;
Furth v. Furth, 133 S.W. 1037, 1038-39 (Ark. 1911);
Owens v. Bentley, 14 A.2d 391, 393 (Del. Super. 1940);
Milford v. Worcester, 7 Mass. 48 (1910)).
Among those states that permit a common-law marriage to be contracted, the elements of a common-law marriage vary slightly from state to state. The indispensable elements are (1) cohabitation and (2) "holding out." "Holding out" means that the parties tell the world that they are husband and wife through their conduct, such as the woman's assumption of the man's surname, filing a joint federal income tax return, etc. This means that
mere cohabitation cannot, by itself, rise to the level of constituting a marriage. Of course, many disputes arise when facts (such as intentions of the parties or statements made to third parties) are in controversy.