How Does Common Law Marriage Work?
Common law marriage is a legal concept that allows couples to be considered legally married without the need for a ceremonial marriage, which typically includes a marriage license and a religious or governmental ceremony. Instead, couples in common law marriages have established themselves as a marital unit through mutual consent, often by cohabitation and other actions typically associated with either a formal marriage or domestic partnership. The history of common law marriage can be traced back to England, where unenforceable, informal, unlicensed partnerships between couples were recognized and enforced by the courts. As such, common law marriage is backed by principles of common law rather than statutory laws. It was introduced to the colonies by early British settlers in America who brought their English customs with them.
After the American Revolution, elements of British common law became ingrained into the U.S. legal system, including common law marriage. It was widely accepted in the early 20th century , and many states recognized it for tax, property and social security purposes. However, as formalization and recordkeeping of marriages became more widespread, the majority of U.S. states (save a handful) passed statutes that voided common law marriage in their jurisdictions. To date, only 11 states in the U.S. recognize common law marriages: Alabama, Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas and Utah. As previously said, common law marriages can take on a number of forms, but two attributes must exist before a couple can be considered as common law married. First, the two people must intend to be married, either with written or oral assent. Second, the couple must have cohabitated together. Some states also require it to be reasonably believed by outsiders that the two are actually married. Simply living in the same house does not create a common law marriage, nor does sporadically attending social events together.
Common Law Marriage Status in Massachusetts
The legal status of common law marriage in the Commonwealth of Massachusetts is clear with two exceptions. The first exception is with regard to common law marriages entered into prior to July 16, 1980. The second is Common Law Marriages considered as a whole in the context of interstate and international marriage. Except for these two notable exceptions, Massachusetts is not a common law marriage state. This means that in order to be legally married under the laws of this Commonwealth, there must actually be a marriage ceremony performed by someone authorized to conduct such a ceremony by state law such as a duly ordained member of the clergy or a justice of the peace.
Under C. 207, s. 1, except for these two notable exceptions, no person can enter into common law marriage in the Commonwealth of Massachusetts:
No man or woman shall be allowed to enter into a contract of marriage with another of the same time, but a man and a woman may live together, may exercise toward each other ordinary marital rights, and shall be subject to all other civil obligations and liabilities as if they were lawfully married; provided, that no rights of any person accrued or acquired previous to the sixteenth day of July, nineteen hundred and eighty shall thereby be impaired.
In the health benefits context, interim regulations have been promulgated pursuant to Mass. C. 118E § 8 which provides for health insurance coverage for the domestic partners of married state employees. Since the Massachusetts Legislature has made clear in Kahn v. Family Dollar Stores of Massachusetts, Inc., 437 Mass. 636 (2002) had it intended to create a domestic partnership equivalent to marriage which would have permitted such partners to inherit from their decedent partners through intestacy, it would have made that intention clear, it could not be said that the provision of such health insurance benefits reflected a specific legislative judgment that domestic partners should receive inheritance rights equivalent to those bestowed upon married couples. Thus, if a domestic partnership is different from the statutory concept of marriage and creates obligations, duties, and risks unlike those applicable to legally married couples in Massachusetts, the rationale set forth by the Massachusetts Supreme Judicial Court in Kahn, supra, makes it very unlikely that a domestic partner would be permitted to claim entitlement to such health insurance benefits based upon intestacy.
When Did Common Law Marriage Terminate in Massachusetts?
Common law marriage was alive and well in Massachusetts for many years. Many have speculated that common law marriage in Massachusetts ended with the passage of Massachusetts General Laws chapter 207, section 1. However, that was not the case. Instead, it was an entire decade later that this form of marital status came to an end.
In 1977, Massachusetts passed chapter 150 of the Acts of 1977 which included a provision that stated: "Chapter 207 of the General Laws is repealed." Chapter 207 concerned marriage and marriage licenses. This legislation was enacted because there was widespread concern in the Legislature about the effects of common law marriage. State agencies stopped recognizing common law marriage as of July 12, 1977.
In contrast, it was not until 1983 that the Massachusetts Supreme Judicial Court addressed the issue and prohibited the creation of a common law marriage after July 12, 1977.
In In re Garcia, 389 Mass. 431 (1983), the Court appears to have relied on the law prior to 1977 and ruled that because common law marriage was not prohibited, and therefore allowed at the time that the parties allegedly became married under common law, the common law marriage was valid. In 1983, the Court ruled that although they had allowed a common law marriage that occurred prior to 7/12/77 to continue to be legal, nonetheless, "we shall rule that in the future there may be no marriages by common law."
Why Was Common Law Marriage Abolished?
The abolition of common law marriage in Massachusetts was motivated by an array of societal, legal, and practical considerations. One of the most salient reasons was the desire to provide a consistent and logical system for determining the validity of marriages. By clearly defining what constitutes a valid marriage, the state aimed to eliminate confusion and uncertainty surrounding marital status. A structured approach to marriage strengthened the application of the law across the state, ensuring that all citizens were treated equally under the same rules.
Another reason for abolishing common law marriage was the state’s interest in providing clear and comprehensive guidelines for legal benefits. Several legal advantages, such as tax breaks, health care options, and inheritance rights, are conferred upon legally married couples in Massachusetts. However, these benefits are only applicable to couples legally recognized as married by the state. Eliminating common law marriage prevented people from potentially exploiting the lack of formalities surrounding this type of union. It was believed that the abolition would help close loopholes that could allow individuals to unfairly claim these benefits.
Another concern was the inequities between spouses in a common law marriage. In formal marriages, the law delineates the rights and responsibilities of both parties. However, in common law marriages, it was difficult to determine the extent of each party’s liability for debts and agreements. The termination of a common law marriage without a formal procedure led to extensive litigation concerning the division of assets, debts, and even support issues. Making the dissolution process uniform ensured that each party was held to the same standard when it came to the division of property and payment of outstanding debts.
The most significant reason for eliminating common law marriage in Massachusetts was the desire to create more informed citizens regarding the legal implications of entering into and dissolving a marriage. Imposing a sound and orderly framework of formalities intended to be advised and discussed with a knowledgeable attorney before the marriage would assist citizens and protect their interests.
Current Rules on Marriage in Massachusetts
The current legal framework for marriage in Massachusetts differs significantly from that of common law. In contemporary Massachusetts, marriages can only be formed through a formal ceremony. The legal requirements for marriage are clearly set forth in Massachusetts General Laws Chapter 207, which governs all matters related to marriage and divorce.
To get married in Massachusetts, an individual must first file a marriage intention with the city or town clerk or registrar in which at least one of the parties resides. The intention must be signed by both parties, who must be at least 18 years old and not related to each other in a way that would prohibit marriage under the law. Once an intention is filed, a three-day waiting period is generally required before the couple can marry . An exception exists for active members of the military, for whom the waiting period may be waived under certain circumstances.
Massachusetts law also recognizes same-sex marriages, which became legal in the state in 2004. Couples in same-sex marriages are subject to the same legal requirements as opposite-sex couples when it comes to obtaining a marriage license and entering into a marriage.
Unlike common law marriages, which do not require a marriage license and where cohabitation can create a legal marriage over time, a Massachusetts marriage requires the filing of an intention and a formal ceremony. Following the marriage, the couple is issued a marriage certificate that serves as official documentation of their marital status.
What It Means for Couples Who Relocate to Massachusetts
The absence of common law marriage is significant for couples moving to Massachusetts from states where common law marriage is recognized. This is true, regardless of whether the couple was married by a common law marriage in a state that recognizes such unions. It also applies to couples that never lived together in a state where common law marriage is authorized, and have done nothing to change their residence to Massachusetts. One can only be deemed married by a common law relationship in Massachusetts if they live in a state where common law marriage is recognized, are 18 years of age or older, were together for at least five years, and do not openly or publicly represent themselves as married anywhere except in the state where they were deemed to have married by common law. If those four conditions are not met, no common law marriage can exist in Massachusetts, and the relationship will be deemed nothing more than a mere cohabitation.
Legal Guidance for Potential Issues
The end of common law marriage in Massachusetts may be a relief to many, but for couples who were married between 1990 and January 1, 2008, the lack of a common law divorce could present long-term complications. For instance, consider couples that have separated after a lengthy period of time cohabitating as a couple. Many gut-wrenching dilemmas exist if a couple will no longer be able to rely on "requi[sites] of common law," such as children, joint finances , and length of cohabitation, for their status as a married couple. In the words of Bulger: [a]lthough not an ironclad method or necessarily an automatic procedure, these concepts are the principal building blocks of any equitable final disposition of a cohabiting couple’s assets at the time of a split. If you are a member of a separating couple married under common law prior to 2008, the best method for resolving potential disputes is to consult with an experienced attorney.
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