Being Common Law Married
Common law marriages are informal unions between individuals who choose to represent themselves as married without the benefit of a marriage certificate or license. Whether a marriage contract exists that gives rise to a common law marriage varies by state. Historically, common law marriages were created to permit individuals to be recognized as married without the formalities of a marriage license. They were particularly popular during the 1800s and early 1900s, in part, because of the difficulty of accessing marriage licenses in out-of-the-way communities or among particular castes. However , they have recently come under attack because of perceived abuses, including spousal support obligations involving very short-term cohabitation.
Not all states recognize common law marriages. Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas and Utah permit common law marriages under certain circumstances. In North Carolina, depending on how you define a common law marriage, three different tests can be applied: Requiring a cohabitation and for a specific period of time or a statutory contract or by the general test of holding oneself out to the public as married under certain circumstances (acting as husband and wife).
Is Common Law Marriage Valid in North Carolina?
On October 14, 1915, the North Carolina Supreme Court decided the case of S. V. Little vs. L. C. Little. In this case, the Court defined marriage as "the voluntary union for life of one man and one woman, as husband and wife. . ." However, while this statement seems clear, the long history of common law in the state of North Carolina creates a conflict.
Most people are aware of the concept of common law marriage, yet most believe that it is a concept of West Virginia or Pennsylvania, not North Carolina. For those not familiar with the term, a common law marriage is where a couple lives together as husband and wife before a formal legal marriage without the benefit of a marriage license where the parties received marital rights under the "voluntary union for life" theory mentioned above.
In 2016, the North Carolina state legislature established N.C. Gen. Stat. § 51-1.2 that voided all common law marriages in North Carolina prior to October 1, 2013, or anyone who was in a common law marriage as of that date can still have it recognized as valid, but any "relationship solemnized on or after October 1, 2013, shall be invalid unless it is solemnized in compliance with the provisions of this Chapter."
However, despite this new statute, individuals must recognize that case law created prior to October 1, 2013 still stands, thereby leaving some ambiguity for people in North Carolina that may have been involved in a common law marriage prior to the new statute. The general rule is that a common law marriage may be established under the common law that requires: (1) The valid contract of marriage between a man and woman at the inception of their relationship. (2) The couple’s cohabitation. (3) The couple’s public declaration as husband and wife.
It should therefore be understood about the validity of and potential establishment of the common law marriage. However, if you are in a common law relationship now, you should know that that relationship may not be the basis for alimony after a separation/divorce as the legal term "spouse" does not include the term "former spouse." Be cautious about entering into a relationship that can create legal consequences with no recourse.
Do North Carolina Courts Recognize Other States’ Common Law Marriages?
North Carolina recognizes a common law marriage if it was entered into in a state that recognizes common law marriages. In order for the marriage to be recognized in North Carolina, the common law marriage must have been validly entered into in the other state. The law where the other state is located will first be applied to determine if the marriage was validly entered into. If so, our state law will then determine whether the elements for a common law marriage under North Carolina law were present in the formation of the marriage in the other state.
Example 1: Mark and Debbie go to Alabama and enter into a common law marriage. This marriage would not be recognized in North Carolina, because it is not proper to characterize any common law marriage entered into after January 1, 2015, as a common law marriage in this state.
Example 2: Mark and Debbie go to Alabama and enter into an Alabama common law marriage. Under Alabama law, the couple must agree to enter into a marriage and live together as husband and wife in order for the common law marriage to be valid. In North Carolina, living together as husband and wife is not enough to create a common law marriage; Mark and Debbie also need to publicly declare their intent to be married and begin living together after that declaration. That declaration must be made so everyone involved with the couple knows that they are married. If this declaration is made in Alabama along with the intent and continued cohabitation, this common law marriage would be valid in North Carolina.
North Carolina Common Law Divorce Considerations
The implications of a common law marriage extend beyond the marriage itself and can impact a couple’s legal rights when they live or move to North Carolina.
Common Law in Child Custody and Support Cases
If a couple was married in the eyes of the law in their home state and has since moved to North Carolina, that couple is still married in the eyes of North Carolina. As such, they will continue to have the same rights and responsibilities as any couple married here. In fact, filing for divorce in North Carolina also requires a final judgment on issues of child custody, visitation and support, along with alimony.
North Carolina recognizes support and custody orders from other states, so long as those orders meet the requirements outlined in the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA helps resolve conflicts between states when a couple is moving to another state , or when there is some other question over which state has the proper jurisdiction over a child.
Surviving a Common Law Marriage in a New State
Couples within a common law marriage residing in North Carolina should keep in mind that this state does not recognize common law unions. If a couple who is common law married moves to North Carolina, the state will not recognize the marriage. Because this may impact matters such as social security benefits, tax filings or pensions, it is critical to understand the "mobility rule" that outlines how a common law marriage is judged based on the state in which the couple established the marriage. So long as the state of residence recognizes a common law marriage, so will other states when a couple is married in another state under the common law.
Alternatives to Common Law Marriage in NC
Alternative legal arrangements to common law marriage in North Carolina include Domestic Partnership Agreements and Cohabitation Agreements. The requirements necessary to enter into a Domestic Partnership Agreement are similar to those required for persons entering into a marriage, but a Domestic Partnership Agreement is a contract between two people who have the same or opposite sex, and legally do not meet the requirements necessary to enter into a valid marriage. By entering into a Domestic Partnership Agreement, you and your partner are making a legally enforceable and binding contract establishing your rights regarding your personal and financial matters during your relationship, and after your Domestic Partnership ends.
A Cohabitation Agreement is a contract entered into by you and your partner specifically setting out how you will or will not share personal and financial responsibilities, property, and obligations during your relationship, and how you intend to distribute your property after your relationship ends. Cohabitation Agreements are similar to Domestic Partnership Agreements, but a Cohabitation Agreement is not submitted to the State of North Carolina. It generally is not publicly available unless a dispute arises between you and your partner forcing you to file your Cohabitation Agreement with the Court.
Protecting Your Rights in North Carolina
A couple may protect their rights in a Common Law marriage by consulting with a family law attorney and drafting a legal contract setting out the terms of the marriage. For example, a couple may desire to contractually agree to a "trial separation" to determine the future of their relationship. The contract may last for a specific term of days, weeks, or months, or until one party provides the other a specific notice. A party who does not follow the agreed upon terms of the contract may limit their ability to obtain equitable distribution or spousal support later in litigation. A separation agreement is another option to protect a rights of a couple in a Common Law marriage. A separation agreement is a written contract a married couple in which the couple agrees to live apart. A separation agreement often allocates property division , custody, child support, alimony, and more. A court will recognize a separation agreement as a binding contract between the parties if the parties clearly demonstrated that it was intended to be binding. At that point, the court must enforce the terms of the agreement. The following are some common terms that may appear in a separation agreement: who pays what bills; spousal alimony; child custody; child support; which party resides in the home and when; how to divide personal items; division of business assets; vehicle division; debt division; how to handle medical and life insurance, and visitation schedules if the parties have children. Therefore, there are a few steps that a couple can take in order to protect themselves and ensure that their actions demonstrate an intent to marry so that they cannot be negatively impacted in the future: