You may have heard of “common law marriage” but what does it mean and does it even still exist? A valid common law marriage carries all the rights and obligations of a marriage where two people obtained a marriage license and went through a religious ceremony, except they didn’t. Until October 1991, common law marriages were legal in Ohio but how do you qualify?
To have a valid “common law” marriage, there has to be a present agreement between two people to marry, the living together of those people and those two people must present themselves as husband and wife to their community and social circles. Any common law marriage that was entered into prior to October 1991 is still legal in Ohio. If a couple came from another state, in which common law marriage is valid, even after October 1991, and met the criteria in that state, Ohio will recognize a valid common law marriage from another state.
If the common law marriage breaks down and a divorce is required, the burden of proof is on the party seeking the court find a common law marriage was in place. It must be shown, by clear and convincing evidence, that there was a common law marriage in place, and such was in place prior to October 1991. All three elements must be shown. Simply a promise to marry (e.g. an engagement) is not sufficient nor is cohabitation alone. All three elements are required to show a common law marriage. If either party is able to show there was a common law marriage in place, prior to October 1991, the parties’ marriage will be treated the same as any other marriage. Their assets and debts will be subject to division just as if they had gone through the formalities of getting married, as will custody of children. This includes child and spousal support, equity in a home, payment of debts, etc.
As time progresses, the number of common law marriages is dwindling but it is still an issue that arises, and courts must look at the facts of each case on its own merit. Each case’s facts will be different. How did the parties file taxes or present themselves to friends and family or draft their Wills. Documentation will be key and the more documentation, the better. If you have moved from another state, make sure you know the common law requirements of that state as well. If you have any questions about common law marriages in Ohio or another state and how that could impact your potential divorce or separation, seek the advice of counsel.