Does Michigan Recognize Common-Law Marriage?
Strictly speaking, only certain unions may be considered "marriages" under Michigan’s public policy. While common law marriages were previously valid in Michigan, the state’s trespass on this area of common law can divide couples unjustly by refusing to recognize their marriage. Although the legality of common law marriage in Michigan is somewhat of a contentious issue, this specific form of relationship is not widely practiced in the state.
In 1957, the state of Michigan passed the Revised Statute 551.3. This statute directly addressed the issue of informal marriages by declaring that "no common law marriage entered into after the passage of this act shall be valid . " While the language of the statute is clear-cut, the issue itself remains murky. A number of cases exist in which a court claims the right to form a common law marriage between couple if they do so with the intention of establishing a legal relationship. Generally, the court must find evidence of the parties’ intent to establish a permanent bond that does not depend on ceremonial marriage. Alternatively, the law will grant couples common law status retroactively until the statute disallowing the practice came into place in 1957.
The Origins of the Common Law Marriage Tradition
The origins of common law marriages date back to the Middle Ages in England. It was not made a point of law until 1753, when Lord Hardwicke’s Marriage Act specified that all marriages must be accomplished according to the Church of England. The act also laid out the conditions under which a marriage could take place:
- The wedding must be conducted by a clergyman of the Church of England.
- The couple must announce their intention to marry in the local church on three consecutive Sundays.
- The couple must receive the consent of the parties and their parents, where necessary.
In time, the Lord Hardwicke Marriage Act restricted the conditions under which a couple could be married to strict regulations that many couples found onerous. Because of this, some people, depending on their moral standards and social customs, began to have informal marriages, or what became known as "common law" marriages. In England, couples often relied on their social position to avoid the requirements of the Marriage Act.
Around this same time, the American colonies were following the customs of their parent countries. Thus, some American colonies had laws resembling the English Marriage Act of 1753. Custom, rather than law, governed people in most areas of colonial America. As a result, many colonies recognized unconventional marriages. After the American Revolutionary War, changes in the lives of the American people made it less important to follow custom. In 1838, South Carolina became the first state in the U.S. to make a common law marriage valid in the eyes of the state. However, until recently, marital law in the United States remained quite contradictory.
In 1965, states across the nation began repealing laws allowing common law marriages. With the repeal of these laws, the recognition of common law marriages in these states became void—except where the parties were already recognized as common law spouses. This exception was established to reduce hardships to individuals who already relied on the laws of common law marriage. In 2019, Alaska became the last state to abolish common law marriage so that as of 2019, there are no states in the U.S. where unmarried cohabiting partners can create a common law marriage.
Common Law Marriage Myths and Misconceptions
Many people think that you are legally married if you and your partner have lived together for a certain number of years. This is not necessarily the case. Unless you have signed a contract to allow for such a thing, cohabitation does not make you married in the eyes of the law. Some people have a misunderstanding that you are legally married after a year of living together, or after two years. This is incorrect under Michigan law. You do not want to wait six to twelve months to separate from your spouse only to find out you were not married at all, and now you are not entitled to any spousal support or property division.
Under Michigan law, you are only recognized as married if you have a formal marriage certificate. The relationship between you and your partner is not recognized and you have no legal claims against your partner as you would with an actual separation or divorce. While there are ways to protect yourself against such an outcome, it is important that you take those steps prior to entering into a home together. Once the relationship ends you could be left owing significant debt and having no way to satisfy that debt as you would in a divorce case.
Some people think that by living together and having a child you are married under Michigan law. This is also not the case. You are not married just by having a child together. You may have limited parenting time and parenting time guidelines, but you and your partner are not considered to be married. This is simply a misconception amongst many living in Michigan.
Legal Alternatives to Common Law Marriage In Michigan
While common law marriage does present some legal benefits, there is a reason that it is not the most common form of relationship in our state. Fortunately, there are in fact legal alternatives that can be used to protect you and your rights in various situations. For example, couples may want to make use of domestic partnerships or cohabitation agreements to secure their rights and privileges if they are not legally married.
Domestic partnerships are agreements in which two people living together as a family and sharing economic resources can sign a statement that they are living as a domestic partnership. Such relationships may be further enhanced by contracts designed to provide benefits to one another in the event of death or breakup. A judge will legally recognize these contracts and couples must typically file the necessary paperwork with a local government office (usually the county clerk where they reside) . These contracts can provide the same benefits as legal marriage, but most people do not claim to have a domestic partnership unless they are certain that their local and state governments recognize the legality of such status. When in doubt, Michigan residents should ask their employers whether they permit domestic partnerships and whether they recognize them for the purposes of health insurance and survivor benefits.
Highly-committed couples may also wish to consider written cohabitation agreements that provide many of the benefits of legal marriage without the need for the marital status. For example, such contracts can define how assets will be divided in the event of breakup, how taxes will be filed, how the couple will manage joint financial responsibilities and more. Because these contracts are specific and signed by the involved parties, it’s important that these agreements are drafted by an attorney who knows the law and understands the couple’s needs. In this way, the couple is able to forgo the potential complications of common law as well as the expense of full-blown marriage.
Protecting Your Rights When You Don’t Have A Common Law Marriage
Even though couples cannot enter into a common law marriage in Michigan, there are steps they can take to help protect their legal rights, and provide important information about their relationship and future intentions. This is particularly true for unmarried couples with substantial assets or who have children.
It’s important to note that even though living with someone for many years may help establish joint rights, after a marriage terminates by divorce, neither person claims support from the other after physically separating. Therefore, if you are living with someone as a couple, be sure you understand how property, support and custody will be handled if you separate or divorce.
In Michigan, unmarried couples do not have the same rights as married couples. All unmarried couples should have wills, health care powers of attorney and financial powers of attorney to protect their rights and each other. A will sets forth how the couple wishes to have their estate assets divided at death, and custodial arrangements for the children. Health care powers of attorney are needed to discuss medical decisions. Financial powers of attorney allow one member of the couple to handle financial affairs if one becomes incapacitated.
In addition to these basic legal documents, unmarried couples also set up trusts to ensure the couple’s wishes are enacted after death, pre- and post-nuptial agreements for support obligations to one another and annual gifting strategies to pass wealth to children.
If you are considering living with another person as a couple, it is wise to seek advice about the legal ramifications of your actions.
How Out-of-State Common-Law Marriages Affect Michigan Law
If the type of common law marriage that exists in Michigan is not an option for a couple, many may consider whether a valid common law marriage exists in a different state that would apply to a move to Michigan. A common law marriage that was established in another state remains valid for all purposes under Michigan law, provided that the couple had the requisite intent and if a marriage requires a license under the laws of the other state, they obtained the required license. For example, a valid common law marriage in Kentucky would be recognized in Michigan.
In 2004, the Michigan Court of Appeals analyzed the issue of whether a Vermont common law marriage could be recognized as valid in Michigan in Krohn v. Smeekens, 200 Mich.App. 405; 506 N.W.2d 909 (1993). The Court noted as follows:
"In Peterson v. Davidson, 177 Mich. App. 565, 568-569; 442 NW2d 743 (1989), this Court held:
The Legislature defined ‘marriage’ and ‘spouse’ in MCL 551.2; MSA 25.82. ‘Spouse’ means.'[a] husband or wife who is a resident of this state or who is domiciled in this state at the time of death of either spouse. . . .’ MCL 551.2[1]; MSA 25.82(1). In Flint v. Grant , 9 Mich. 87 (1861), our Supreme Court defined a ‘spouse’ as ‘one who has a consort that he has therein right to call his own.[‘] Id., at 88.
The requirement of MCL 551.2; MSA 25.82(1) for marriage to occur in Michigan presupposes that Michigan recognizes the validity of marriages performed elsewhere. If it did not, the reference to ‘residents’ fairly read leaves open the possibility that a husband and wife can marry validly in another state. In light of MCL 600.2802; MSA 27A.2802, which provides, in pertinent part:
(1) The law with reference to any of the following subjects applies to all actions within this state, regardless of the place of injury and regardless of the place of wrongful conduct, except as provided in subsections (2) and (3): . . . (c) Personal rights, including the right to protect life and health; LEGAL STANDARDS:
"(g) Marriage."[9]
In recognition of the trial court’s analytical error, the couple’s marriage would be valid in Michigan.