How Does Common Law Marriage Work?
Common law marriage derives its name from the body of legal precedent and case law, which is used instead of codified law or statutory law. As an archaic institution, common law marriage came about in England and was applied or adopted in 44 states in the U.S., although it has now been abolished in the majority of them. The practice of common law marriage took root as a replacement for the formalized and costly process of obtaining a marriage license to wed.
Throughout the majority of the 19th century, common law marriage was the accepted practice in Virginia and most of the state did not perform marriage ceremonies. Couples who wanted to wed only had to cohabitate and present themselves openly to their community as a married couple in order to be legally considered so. Common law marriage continued to be recognized in Virginia until it was abolished in 1853. Today, Virginia does not grant common law marriage, requiring couples to enter into formalized marriages through a licensed ceremony. Common law marriage remains valid in the state of Pennsylvania, but not for those solely residing in Virginia.
The distinction between common law and formalized marriage is that formalized marriage is mediated by the state, conferring certain rights on the couple in the eyes of the government. The benefits of formalized marriage involve the bestowing of state and federal rights to the couple, such as tax and economic breaks, spousal rights, social security benefits, immigration benefits, pensions, and benefits upon death. Marriage also creates a joint venture of a new business interest. In this way, taxes may be reduced and other financial benefits can be worked out within the tax code. A couple can file their taxes jointly .
The absence of a state contract between couple in a common law marriage, though, presents a problem in regards to the idea of joint venture. Although they function as a couple, neither spouse has any claim to the property or business of the other if the relationship dissolves. Regardless of whether one spouse has been augmenting the property held individually by the other spouse, neither possesses any automatic rights to the augmented inheritances of their partner. This raises the key distinction between how spouses view a common law marriage versus a formalized one.
For these reasons, common law marriage is no longer considered valid in Virginia. A couple married through common law is not considered legally married. One party may claim his or her marital rights in spite of not having undergone a formal marriage ceremony with his or her partner, but the other party does not possess the same rights. Neither party can file joint income taxes, file for divorce, or claim alimony in court, nor can one spouse receive spousal support. Additionally, since marriage is a recognized contract between two parties, the breakdown of a common law marriage may restrict the spousal rights of either party.
In Virginia, any claims of a common law marriage need to be filed within the one year stipulation of an established and legal relationship. After this calendar year, the couple in a common law marriage must go to court to prove their association and timeline as a couple. If the court decides to recognize the claim as a legal marriage, whether or not the inheritance of the property of either party will be valid will remain an issue. These matters must be settled in separate litigation to determine what portion of property that is owned by the couple during the duration of their relationship belongs to each party.
Does Virginia Have Common Law Marriage?
In Virginia, common law marriages, which are formed when a couple, through their words and actions, demonstrates that they consider themselves to be married rather than unmarried, are not valid. Although common law marriage was officially prohibited in Virginia in 1850 under the provisions of what is now known as VA. CODE ยง 20-45.2, Virginia courts have long-recognized that if a couple entered into a common law marriage in a state where it was allowed, such a couple can be considered married in Virginia. In other words, Virginia will recognize as valid a common law marriage entered into in a state that allowed them, even if it would not have been valid in Virginia.
While this presumption is strong, it is not insurmountable. A recent Fairfax County Court of Appeals case held, "Virginia does not automatically validate a foreign marriage just because it occurs in a jurisdiction that recognizes the marriage as legal." Tuck v. Clement, 76 Va. Cir. 341 (Fairfax Co. 2008).
As the court recognized in Tuck, the most common common law marriage scenario is where a couple enters into the contract to marry in another jurisdiction with the intent of moving to Virginia shortly thereafter. However, the couple either after entering the contract or after moving to Virginia has come to the conclusion that they no longer wish to remain married. As the Court recognized, often in these situations Tennessee is the most likely state of choice for a couple to enter into common law marriage or marry, although any state will do. Assuming the plaintiff in the Tuck case was married in Tennessee, plaintiff and defendant would have had to meet the prerequisites for a common law marriage, namely, cohabitation and the mutual consent of both parties of which no legal proof exists. The Court ultimately ruled that finding intent was a question for the Judge to determine and not the jury. This is a bit of a tricky, albeit common, issue. The Court decided that the juries are not meant to decide the intent of the parties. It would have been much easier if Virginia just recognized all common law marriages as valid. Unfortunately, the Court’s decision in Tuck implies that an analysis of the parties’ intent is now necessary.
What About Common Law Marriages Recognized in Other States?
Generally, Virginia will recognize a common law marriage established in another state.
In other words, if you are married under the laws of South Carolina and your spouse dies or if your spouse leaves you and goes to South Carolina and you want a divorce, Virginia would recognize this marriage as valid. Virginia would not (and does not) recognize a "common law" marriage, and the courts here especially take a dim view of love letters to prove a marriage. However, Virginia will recognize the "effects" of that marriage and give it full faith and credit.
Confusion can arise when a couple who is married in another state moves to Virginia. For instance, suppose you are a gay couple married in Maryland eight years ago. You move to Virginia and work for an employer with a health plan that includes health care benefits for spouses. If you can prove that Virginia recognizes your marriage and that a legal marriage occurred in another state, then you may be eligible for those benefits.
Other states may not give such a marriage full faith and credit, i.e. to recognize it. But Virginia will. These questions arise primarily in the context of spousal benefits. For example, if you work at a company that offers health insurance for spouses, a spouse from outside of Virginia may be able to have those benefits.
However, the other side of this situation is when you have a couple married under the laws of Virginia who then moves to South Carolina. The authorities there are not required to give the full faith and credit to that marriage.
Alternative Legal Solutions to Common Law Marriage
Virginia does recognize some legal alternatives to common law marriage. Cohabitation agreements, also known as cohabitation contracts, can grant some of the same rights as a common law marriage, but they do not legalize the relationship or create a domestic partnership.
Cohabitation Agreements
Some people mistakenly believe that a cohabitation contract is a pre-nup agreement for a common law marriage. While these agreements are alternatives to a traditional marriage certificate, a cohabitation contract comes with many of the same drawbacks of common law marriage. In Virginia, a cohabitation agreement can be entered into by two parties intending to live together. They may share a residence and certain expenses but they are not legally married. Cohabitation contracts are private between two people. No action or process is required to enter the contract, which is why it is considered an alternative to marriage. The cohabitation contract may state terms, such as: Unless you are represented by an attorney, your cohabitation contract does not need to be written or filed with the court . That means it is a private document that will never be revealed to outside parties. However, entering into a cohabitation contract does not establish your relationship in the eyes of the law. In other words, you still will not be able to file a joint tax return or obtain spousal benefits if your partner should become ill.
Domestic Partnership Agreements
Domestic partnership agreements are an option legally recognized by Virginia. These agreements are used by unmarried couples in Virginia to plan for different scenarios of their life together. The agreement can be complex or simple. Importantly, it may grant all the rights and conditions of a marriage contract without needing to be legally wed. Such an agreement may dictate the following terms: As with cohabitation agreements, you do not need to involve the court in a domestic partnership agreement. Your relationship will remain private. A court may help enforce your agreement, but only when it has a basis for doing so. Entry of a domestic partnership agreement by both parties does not create a domestic partnership or a common law marriage.
Safeguarding Your Virginia Partnership
While Virginia does not allow for common law marriages, there are steps you and your partner can take to protect your rights in case there is a healthcare emergency or you decide to end the relationship in a matter similar to divorce.
Power of Attorney
One of the most important documents you can create to protect yourself and your partner is a medical power of attorney. This document will grant authority to your partner to make healthcare decisions for you if you are unable to do so. You can include as much treatment authority as you would like, from basic choices to advanced care that you may wish to avoid. Since Virginia does not recognize common law marriage, a same sex couple may be unable to visit each other in the hospital if one is unable to communicate. As long as a medical power of attorney has been created, there wouldn’t be any issues. Other ways to share medical responsibilities include advanced healthcare directives and living wills.
Financial Power of Attorney
If you want your partner to have the ability to make financial decisions for you or if you have joint bank accounts, you will need to establish a financial power of attorney. An attorney in Virginia will work with you to determine the best options for your situation.
Estate Planning
If you and your partner have decided to commit to each other and want to protect your desires in the event of your death, you should contact an attorney immediately to begin estate planning. This may include assigning each other’s assets to your partner, creating wills that stipulate how your estate will be distributed, and granting authority to your partner to take care of your funeral arrangements.
Consulting a Virginia Lawyer
Seeking the guidance of a qualified family law attorney in Virginia can be crucial when determining whether an unmarried couple is legally protected or if there is a partnership right at play . If a former couple has ended a relationship or shortly after it has ended, they may seek legal protections or remedies, and having an attorney who has handled these matters before with knowledge of Virginia law is essential.