Coupling Policies

Legal and Common-Law Marriage

Prior to the 19th century, legal marriage was the only method by which different-sex couples could achieve legal acknowledgment of their unions. A great deal of social control was exercised over marriage (and its participants) during the Colonial Era in particular, as the Puritans believed that orderly family life was the foundation for orderly community life. Indeed, during this time, adults wishing to live alone were fined, and community members did everything they could not only to find suitable spouses for single individuals but also to exert considerable control in keeping the spouses together no matter how unhappy they were or what marital crimes (such as adultery or abuse) were committed.

During the 19th century, however, as large numbers of individuals and families traveled west to settle the frontier, many who were desirous of legal marriage found themselves unable to do so, as they settled in geographic regions far from an official (such as a justice of the peace) with the authority to consecrate such unions. As a result, couples lived together as if they were legally married, engaged in activities commonly thought (at that time) to be the purview of only the legally married (such as childbearing and childrearing), and enjoyed the social status and respect that legally married couples enjoyed from other community members. These informal arrangements were so common that 24 states officially decreed such unions as common-law marriages and accorded to these couples all of the benefits and protections associated with legal marriage.

When the West became more populated, many state governments decided that common-law marriage was no longer a practical or necessary response to the geographic barriers associated with legal marriage and subsequently revoked the legal status [Page 352]of common-law unions by statute or court decision. Today, common-law marriage is increasingly becoming archaic, as only 10 states (Alabama, Colorado, Iowa, Kansas, Montana, Oklahoma, Pennsylvania, Rhode Island, South Carolina, and Texas) and the District of Columbia continue to recognize this arrangement (Georgia, Idaho, and Ohio recognize only those common-law marriages created prior to a certain date, and New Hampshire recognizes these marriages for inheritance purposes only).

For couples to be common-law married, they must live together for an ill-defined period of time (not precisely defined by any state) in one of the aforementioned states, present themselves to the public as if they are legally married, and intend to marry eventually. Both legally married and common-law married couples enjoy over 1,000 federal rights associated with marriage, as well as the corresponding rights granted to them by their respective states. Furthermore, both legally married and common-law married couples must divorce if they wish to legally dissolve their unions. It is unclear, however, how many common-law married couples divorce (or are aware that they are required to divorce) to legally dissolve their unions.

...