All About Common Law Marriage
Common law marriage is a term that seems to be everywhere in the media but is often misunderstood. Simply explained, it is the mutual agreement and commitment of choice by couples that they intend to be married, accompanied by a public acknowledgment of that intent. Common law marriage also requires cohabitation for a period of time depending on the state’s laws, with the following additional requirements:
- The parties must be free to marry. Neither party has an existing marriage.
- Parties must have legal capacity to enter into it. Or, both parties must be of the age that permits them to legally marry .
- There must be consent to be married. This will require a verbal promise followed by a demonstration of intent by living together.
- The agreement must be in the present tense, not intending or planning to marry in the future.
- The parties must hold themselves out to the public as married.
As with any contract, the requirements are largely subject to the state law where the couple resides. Because of the variance in the law by state, couples should ensure that their present state recognizes common law marriage before they reside together.
Illinois Common Law Marriage
Common law marriage in Illinois is an issue that often comes up for discussion in family law. In fact, many people recently separated and considering divorce are confused by the question of whether Illinois will recognize common law marriage. Unfortunately, the answer is not cut and dry.
Defining Common Law Marriage
In the United States, common law marriage is a situation in which individuals are recognized as married without a formal ceremony or marriage license. The union typically must be documented by cohabitation and public reputation. In some states, the parties must intend to take advantage of the privileges and responsibilities of marriage. Both spouses, in most cases, must have the legal capacity and state residency necessary for legal marriage.
Illinois’ Position on Common Law Marriage
Illinois does not recognize common law marriage. In order for a marriage to be legally valid in the state of Illinois, the couple must have a marriage license. However, there are exceptions to this rule in cases involving couples married in another state that does recognize common law marriage.
Common Law Marriage Exceptions in Illinois
When considering the abolition of common law marriage, there were strong arguments for and against the ban. Those in favor of abolishing it believed that individuals in a domestic union "would get a bad deal if the marriage had not been recognized by the place where the relationship was formed." Those arguing against the ban felt that it would unfairly hurt couples who had entered into a common law marriage in another state.
Today, Illinois courts must adhere to the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/201). This means that couples who meet the definition of a common law marriage in a state that recognizes the legal union are married when entering into the state of Illinois. Obtaining a divorce in these situations would likely come with more difficulty, since the court in Illinois lacks any jurisdiction in the matter.
As a couple from Minnesota enters Illinois, the matter of marriage license versus common law union becomes moot. Illinois law concentrates on the union itself rather than how the matter was solved in Minnesota.
Common Law Marriage Related Topics and Exceptions
Certain exceptions apply to Illinois’ non-recognition of common law marriages.
The State of Illinois does recognize some common law marriages as valid. This recognition applies only to those established in other states. The Code of Civil Procedure states that "a marriage which is valid by the law of the state where performed shall be valid in this State." 735 ILCS 5/10-3. Thus, a common law marriage that occurred in a state where it was legal will be recognized if established before the Defense of Marriage Act (DOMA) was passed. Also, Illinois recognizes annulments or divorces granted in other states.
The issue of common law marriage can arise in the context of a divorce when assets have been accumulated during a common law marriage. The court will determine what property is part of the marital estate based on the validity of the couple’s marriage.
An example of a common law marriage between same-sex spouses being recognized in Illinois can be found in the case of In re Marriage of Hall. In this case, the appellate court held that a couple legally married in Canada and had established a valid marriage under Illinois law pursuant to 735 ILCS 5/10-3. Moreover, the court held that the parties "elected to file for a divorce in a state that recognizes same-sex marriage," and therefore, Illinois had jurisdiction.
Legal Rights And Implications
As mentioned earlier, Illinois does not recognize common law marriage; however, there are some rights that these couples may have, generally in the areas of inheritance and property rights.
Inheritance Rights
If a couple has had children together, the wife will be entitled to inheritance rights as the children’s mother, according to Illinois law. This means that, should the couple separate and the one woman continue to go by the other woman’s last name, the former partner still has the right to put that last name on the children’s birth certificates as their legal guardian and has the right to make decisions for the children.
In addition, Illinois commonly gives property to children upon the death of either of their parents, so whatever property the couple has accumulated together during their time together would be considered common property and therefore entitled to inheritance for all of the children born into that property during the time that the women were together. Both sides must prove that the property really belongs to the joined family together, or else their inheritance would be considered invalid .
Property Rights
Couples will not have the same property rights as married couples, but in the case of a divorce, the court is likely to consider the amount of time that they lived together, the combined income brought into the relationship, and the property already held by either party. Thus, if it can be proven through documents like tax returns, pay stubs or bank statements that the two women held jointly owned property or combined bank accounts prior to the split, the court will have to look at which assets were held jointly and which were held separately.
The same goes for their income. Consider a couple that was not married but held the same last name and lived together prior to their separation and breakup. While the couple must prove that property and income were held as a unit, they will have a much easier time doing so than if they had simply separated from one another without ever having lived together or combined income and property for a set period of time.
For those considering combining property and finances before their relationship is validated by a marriage certificate, it might be a good idea to consult with a lawyer about preparing a cohabitation agreement. This agreement can outline various logistics about the relationship including finances, income, property ownership, and anything that specifically needs to be in place to protect them should anything happen.
Alternatives To Common-Law Marriage In Illinois
Although common law marriages are no longer recognized in Illinois, there are alternative legal options available for people looking to formalize their relationships. Common law marriages were once a way of establishing legal recognition for couples who lived together but did not go through a traditional marriage ceremony. In addition to common law marriage, Illinois also recognized "declarations of invalidity of marriage" for couples who had legally divorced one another, but subsequently lived together and held themselves out to be married. However, the Family Law and Procedure Act, 750 ILCS 5/101 et seq., otherwise known as the Illinois Marriage and Dissolution of Marriage Act, eliminated the practical utility of these concepts when it substantially redefined marriage.
The same year that the IMDMA eliminated the recognition of common law marriages in Illinois (2012), the State enacted the Civil Union Act, which established civil unions as a legally-recognized alternative for couples who wish to couple their lives together without necessarily dissolving the criteria associated with traditional marriages. A civil union serves as the most comparable legal alternative to common law marriages, as it allows couples to define a legal commitment similar to marriage without conforming to traditional marriage licenses and related requirements. Ministerial or judicial approval of the union is not required, but the parties must sign and file a Declaration of Civil Union – essentially the civil union equivalent of a marriage license – as well as a $5 filing fee with the relevant circuit court.
The benefits of legal recognition provided by civil unions include a number of rights and responsibilities equivalent to those enjoyed by legally married couples, including the following:
Though many of the same rights and responsibilities provided to civil unions are replicated at the federal level for civil unions and marriages, there are some exemptions, specifically in the areas of federal tax laws, veterans’ benefits, fighting for same-sex marriage at the Supreme Court, immigration and other federal programs.
Legal Considerations for Couples
A couple who does not want to go through the process of a formal marriage should consult an experienced family law attorney about the issues they should consider before moving forward. Both parties may want to decide how to handle certain issues up front, rather than waiting until they are in a legal dispute over their decision . Some of these points include the following: If you already have children and plan on having more children, you should consider in detail when and where you will be living and what role each of you will play in their education. Going through this process with your partner will help you and them be on the same page when deciding to enter into a long-term relationship without formal marriage.