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The problem with common-law marriage? It’s usually about divorce

South Carolina is the latest state to say that couples should have to get married to enjoy the benefits of marriage. Why doesn’t Utah, which has the highest marriage rate in the nation, agree?

Mary Corporon, Jeremy Johnson’s lawyer, turns toward the prosecution during the trial for former Utah Attorney General John Swallow at the Matheson Courthouse in Salt Lake City on Thursday, Feb. 16, 2017.
FILE - Mary Corporon during a trial at the Matheson Courthouse in Salt Lake City on Thursday, Feb. 16, 2017. Corporon, who has been involved in multiple common-law marriage cases, said people don’t usually seek legal recognition of their relationship as a marriage because they want to finally have a wedding or celebrate a milestone anniversary.
Ravell Call, Deseret News

SALT LAKE CITY — It was created to help people become legally married; today, it mostly exists to help couples separate.

But common-law marriage, the centuries-old means by which a couple who live together can be pronounced married without having said “I do,” is disappearing across the U.S. — except in Utah and a handful of other states.

South Carolina is the most recent state to abolish common-law marriage, with a ruling from the state Supreme Court that calls the institution outdated and paternalistic.

“We have concluded the institution’s foundations have eroded with the passage of time, and the outcomes it produces are unpredictable and often convoluted,” Justice Kaye Hearn wrote in an opinion issued July 24.

Historically, common-law marriage conveyed legitimacy to a union when two people wanted to be married but had no access to a minister or courthouse. Over time, the goal for some couples became more practical: for example, to reap the financial benefits of marriage, such as a lower tax bracket, health care benefits or an inheritance.

But today it’s often sought only when couples are separating or one partner dies, and defenders of common-law marriage say it provides much-needed protection for the growing number of couples who live together without getting married.

“There are realities in human life created by people living together for a period of time and having their financial affairs knitted together and then having them separated. There are perceived unfairnesses, sometimes, when that separation happens,” said Mary Corporon, a Salt Lake City attorney.

“Having a common-law provision, or a nonsolemnized marriage, creates some possibility for redress of what people think is unfair about the situation,” she said.

But others say that when states recognize common-law marriage, a court can declare a person married retroactively, even if the person never wanted to be married.

“I see it as a bit of a nightmare,” said Doug Anderson, practice manager for Cordell & Cordell in Clearfield, Utah, adding, “The reasons behind it (existing), in my mind, have all disappeared.”

With South Carolina’s highest court pronouncing common-law marriage a relic, legislators in Utah and and other states where the institution still exists could face pressure to do the same. But they’ll also be asked to consider laws that could replace it.

A group of legal scholars from across the U.S. is working on a legal framework that all states could adopt to govern the dissolution of nonmarital, long-term relationships. It’s needed, they say, as the number of American couples who are living together increases, especially among the youngest adults.

According to the U.S. Census Bureau, in 2018, more Americans between the ages of 18-24 lived with an unmarried partner (9%) than lived with a spouse (7%). And just 30% of today’s young adults (ages 18-34) are married, compared to 59% in 1978, the Census Bureau says.

How Utah does it

Officially, Utah says it doesn’t recognize common-law marriage but instead recognizes “marriage not solemnized,” which is essentially the same thing to anyone without a law degree.

Under the statute, couples of legal age to be married, who live together, “mutually assume marital rights, duties and obligations,” and “hold themselves out as” husband and wife are said to be in a nonsolemnized marriage.

But that language is rarely used when cases come before the court, as when the girlfriend of the late Salt Lake County Recorder Gary Ott asked for recognition of their relationship as a marriage after Ott’s death.

Corporon, who has been involved in multiple common-law marriage cases, including the Ott case, said this is typical, and that people don’t usually seek legal recognition of their relationship as a marriage because they want to finally have a wedding or celebrate a milestone anniversary.

“If you think it through, whatever possible reason is there to declare a marriage, other than to get money or property?” Corporon said.

That was the motivation of the South Carolina man whose petition for a common-law marriage led to the recent Supreme Court ruling there.

In that case, the couple had lived together for about 20 years and had two children together but never married. After the couple broke up over an affair, the man sought to have their relationship declared a common-law marriage so that their assets could be “equitably” divided. In a trial that lasted more than a week, attorneys presented evidence that showed the couple had joint accounts and owned property that was titled in both of their names. The man also testified that they had introduced themselves as husband and wife on occasion.

The woman, however, had witnesses who testified that she had said she would never get married again, and tax records showed that both had filed as single.

A family court judge ruled that a common-law marriage had been in effect since 1989, when the couple first moved in together. Appeals eventually took the case before the state Supreme Court, which not only reversed the family court’s decision and awards, but abolished common-law marriage altogether, noting that the South Carolina Legislature had repeatedly considered this, as far back as 1989.

In her opinion, Hearn wrote that a major problem with common-law marriage is that the concept is so ambiguous that most people cannot define what exactly it is. Moreover, even people who seek a common-law marriage sometimes admit that they have presented themselves as married over the years if marriage offered them an economic advantage.

“What is truly astonishing is not that parties take inconsistent positions to gain advantage, but that they seem to see nothing particularly inappropriate in their chameleon-like behavior. We must conclude that this court can no longer place its imprimatur on a rule which seems to be a breeding ground for such conduct and its attendant disrespect for the law itself,” Hearn wrote.

The universal ambiguity about what constitutes a common-law marriage is a key argument of opponents of the doctrine. Anderson, a Utah attorney who works for Cordell & Cordell, a nationwide firm specializing in men’s cases, said the Utah law is maddeningly vague.

“The reality is, most people don’t know the requirements of a common-law marriage; that’s the biggest issue I have with it,” Anderson said. “Someone can be together for one month and as long as they hold themselves as being married, and tell everyone that they’re married, the court can determine that they were married.

“I can’t tell you how many people come into my office, not married and scared to death that the court is going to determine that they were common-law married because they were together five years,” he said.

Origins of the doctrine

Common-law marriage existed in Europe prior to the Reformation and eventually migrated to the American colonies, according to Hearn. “Frontier America was sparsely populated and difficult to travel, making access to officials or ministers impractical to many. States also sought to legitimize ‘subversive’ relationships and the children thereof, as well as to direct women to the family for financial support instead of the public fisc,” she wrote.

For both economic and social reasons, however, the majority of states have ended the custom. (Before South Carolina, the last state to do so was Alabama in 2018.) Hearn wrote that increasing acceptance of children born outside of marriage means that children’s welfare is no longer an argument for common-law marriage, nor is the potential for societal judgment of unmarried couples who live together.

“Meanwhile, courts struggle mightily to determine if and when parties expressed the requisite intent to be married, which is entirely understandable given its subjective and circumstantial nature. The solemn institution of marriage is thereby reduced to a guessing game with significant ramifications for the individuals involved, as well as any third party dealing with them.”

Linda McClain, professor of family law at Boston University, agreed, saying, “Common-law marriage cases can be pretty messy when you have facts that are all over the place.”

“The function was historically to normalize things, to take people who are deviating from the norm and to bring them under the protective umbrella, the moral umbrella, of marriage. But that’s the ethical debate today, whether you should treat people as married if they didn’t consciously take on marriage.”

Besides Utah, states that recognize common-law marriage are Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma and Texas. The District of Columbia also does, and New Hampshire provides for a marriage to be established after the death of one partner, “an after-the-fact remedy,” McClain said.

McClain said she found the justices’ reasoning remarkable, given that South Carolina is “not exactly the most liberal state.” But the ruling is in line with prevailing legal thought, which is “marriage is a right, but there’s also the right not to have marriage imposed upon you.”

The lack of a uniform legal standard, however, results in uneven outcomes, which is why a committee comprised of legal scholars across the nation is working on a proposal for a framework all states could potentially adopt. Naomi Cahn, a professor of law at George Washington University Law School, is a member of the Economic Rights of Unmarried Cohabitants Committee, and said the panel hopes to have a proposal within two years. Members are looking into practices across America and across the world, Cahn said.

Some people have called for a revival of common-law marriage to protect the rights of people who live together without marriage.

But McClain cautioned against sweeping claims that marriage is disappearing, noting that levels of cohabitation vary by social class, ethnicity and education. “The college educated people, disproportionately, are still marrying. The marriage gap is very much class- and race-based,” she said. She also noted that many older Americans choose not to marry (or remarry) because they don’t want their Social Security benefits to change.

“Maybe for some of those people, common-law marriage would be protective if they don’t feel they can afford a ceremony or don’t want to go through with it (marriage),” McClain said. But she is in favor of states’ adopting some sort of “bright-line rule” by which couples who live together could codify their relationship in some way.

Anderson said the simplest reason to do away with common-law marriage is that “it clogs up the court system more than it should.” He is currently involved in a case in which a couple has no children, but the woman is seeking recognition of their nonsolemnized relationship because she believes she is entitled to assets accumulated during the eight years they lived together.

“In this case, if we did away with (common-law marriage), really there would be no case. Because of common-law marriage, it takes a non-legal issue into the legal realm, and now it’s going to be a hotly contested case because there’s so much to gain or lose, depending on what side you’re on.”

But Corporon said that’s exactly why common-law marriage is needed.

“What you can get with declaring a marriage, that you can’t get otherwise, is alimony, or 50 percent of a house, or life insurance proceeds, or the estate of the deceased person, or a widow’s benefit under Social Security. There are thousands of economic benefits that potentially flow from being married to somebody,” she said.