What Is Common Law Marriage?
Common law marriage is the legal status a couple may have when they are considered to be married even though they did not go through the official ceremony or fill out documents to become legally married. Couples may be considered legally married if they have lived together for a certain period of time and hold themselves out to be married. In some states, an intention to be married may satisfy the requirements to form a common law marriage, but most states require additional factors that depend on the specific state where the parties reside.
In North Carolina, common law marriage is not recognized. However, it is a common misconception that cohabitation creates a common law marriage in North Carolina . This is not true; even if the parties entered into a cohabitation agreement to live together as husband and wife, a common law marriage will not be formed. While the requirements for forming a common law marriage in North Carolina cannot be satisfied, there are several implications of cohabitation in North Carolina.
In other states, such as Alabama, Colorado, Iowa, Kansas, Montana, New Hampshire, Rhode Island, South Carolina, Texas and Utah, common law marriages may be formed. For example, in Alabama, the requirements for forming a common law marriage are that the couple must agree to be married in the future, the couple must cohabitate, and the couple must hold themselves out to be married.
North Carolina Common Law Marriage Laws
In North Carolina, common law marriages are not recognized. The North Carolina General Statutes states that the only way a marriage can be legally recognized is through a marriage license and a ceremony performed by a person legally authorized to marry commercial relationships. Any other relationship, no matter how long it has lasted, is not considered a marriage by law, even if the parties have called each other "husband" or "wife." In fact, even marriage where both people thought a marriage license existed, but it turned out it did not, was not considered a legal marriage under North Carolina laws.
The only circumstances in which cohabitation of two people who think they are married could be considered a legal marriage is when there were previously married, terminated the first marriage by divorce, and failed to remarry correctly. In that case, the couple could potentially be considered married if they proved their first marriage, a legally obtained divorce, and there were no intermediating marriages in between. This exception applies only in the context of a divorce and does not apply to other common law situations.
Alternatives to NC Common Law Marriage
When considering the options for couples who want to ensure their relationships are legally recognized in North Carolina, it is crucial to explore alternatives to common law marriage.
As there is no law allowing cohabitating couples to create a domestic partnership in North Carolina or obtain the equivalent of a common law marriage by either registering or entering into a declaration that they are domestic partners, the law does recognize (and courts will enforce) certain agreements that unmarried couples may use to protect their rights and property.
Cohabitation Agreements
Cohabitation agreements are a recognized alternative to common law marriage. Cohabitation agreements are normally legal contracts which cover a particular subject matter, like the division of income and expenses, the disposition of property, remedies for breach, and more. Cohabitation agreements can be quite extensive, covering many issues including liability for debts, payment of alimony upon the death of one "partner", and sharing of goods obtained during the relationship. They can also be very simple documents, touching only on a few basic issues. It is possible to draft an agreement under which the partners agree to divide assets in the event the relationship ends. However, the parties must not have an illegal objective in drafting the contract, like attempting to avoid paying support because they want to cohabitate but don’t want to commit to a legal marriage.
Domestic Partnerships
Another option for cohabiting couples is a domestic partnership. Domestic partnerships (also referred to as civil unions) are a legally recognized alternative to marriage. Unlike marriage, which requires a formalized legal process, domestic partnerships can be created informally, without the input of the court system and without the involvement of a judge. Couples can enter into an agreement and begin living together. However, there appears to be no widely accepted definition of a domestic partnership in North Carolina, and so there is no guarantee that a court will enforce a domestic partnership agreement when it conflicts with applicable law, like intestacy or divorce law. If an unmarried couple chooses to enter into a domestic partnership, it is a good idea to have a professional create a written contract to ensure that their intent to be recognized as domestic partners – and the legal rights they expect as a result of their status – is documented. Ultimately, whether through a cohabitation agreement or a domestic partnership, unmarried couples should not rely on the existence of a common law marriage in North Carolina. Instead, they should put in place a legally binding instrument that will protect them in the event that their relationship dissolves.
Recognitions and Legal Implications
The legal recognition and implications of such a relationship have been tenuous and complicated in the state of North Carolina. Traditionally, common law marriages were recognized and valid. The Uniform District Court Rules in effect prior to July 2012 cited to the, "widely known and often limited practice of common law marriage." The district court’s discretion has since changed to align with the state’s legislative birth as businesses to protect against common law marriage. Although the Uniform Rules for District Court Practice remain in effect, the original sources to the bi-monthly Uniform Law Updates have been removed and replaced by specific district court local rules.
Although common law marriages are no longer recognized, there are several legal recognition’s for previously entered into common law marriages. In North Carolina, there are adopted choices for a "de jure" or "de facto" marriage that acknowledge the unclear past of common law marriage. "De jure" is linked to the legal validity of a common law marriage entered into before 1 October 1987. "De facto" links to legal validity of common law marriage entered into after 1 October 1987 but before 1 January 2014. For formerly married couples who meet the legal requirements of a common law marriage, there is the option of a "de facto" marriage. This option is offered, however there are strict requirements set by the state of North Carolina to prove a de facto marriage which requires a settlement of property or separation proceeds, Free Trade Agreement, domestic partnership, or partner benefits. These provision become effective and available beginning April 1, 2012.
Effects of Out-of-State Common Law Marriages
Couples who enter into common law marriages in states where it is still recognized may not remain there indefinitely. Many couples will move from that state at some point after their marriage. Because North Carolina recognizes only one common law marriage, in 2016, the North Carolina General Assembly enacted a new statute to provide the statutory authority needed to recognize out-of-state common law marriages entered into prior to January 1, 2018 , and to recognize future marriages for which common law marriage is still recognized in the state in which the couple resides. For couples moving into or otherwise residing in North Carolina, it is advisable to consider entering into a written agreement relating to your future rights as married spouses. Because the law is somewhat complicated, it is advisable to consult with an attorney if you are considering whether to formally sever your ties to North Carolina, relocate permanent residence, or you have a dispute arising over the dissolution of your relationship.
How to Legalize Your Relationship in NC
If a couple is reeling from the fact that it cannot be married in North Carolina because the law does not recognize common law marriages, it can legalize the relationship through the same steps as any couple would. They must get a marriage license and then apply for it in any North Carolina county. The legal requirements for securing this license begin with the requirement that the couple must be of sound mind and able to enter the contract voluntarily. They also:
- Must be at least 18 years old.
- Remain married to the other person.
- Have stepped into a marriage without capacity either through force, lack of mental capability or concealment of child birth.
- Not be blood relatives.
In situations where the couple is already married, a divorce is required. Since some people are seeking to get remarried, it is important to start here and ensure that the couple will qualify to marry.
Speaking with a Family Law Attorney
Consulting with a family law attorney can help clarify the answers to questions about common law marriage, enabling you to make informed decisions in the future. Your options when deciding how to formalize your relationship, which may include entering into a premarital agreement or even getting married, can be explored with your family law attorney as well .
In addition to telling you whether common law marriage is an option for you, your lawyer may have additional recommendations that will help you avoid future legal complications in your relationship or in the event of a divorce or death. Consulting with a family law attorney can help you understand and make informed decisions about your relationship before it carries legal weight in North Carolina.