What is Common-Law Marriage?

Common law marriage is a concept that is often misunderstood. However, it is necessary to have a basic understanding of the concept and the theory behind it, in order to make sense of the information which follows. So, as such, we will start with a very basic common law marriage definition. A common law marriage is just a couple living together and holding themselves out to be married, with the requisite intent to be married. Not to make things too complicated, but some scholars would include ceremony and consummation as two other requirements necessary to forming such an agreement.
The historical theory behind the institution of common law marriage is pretty simple – a couple living together as husband and wife should have the same legal benefits as couples that married with a formal ceremony. In other words , common law marriage is premised on the theory that a couple with a stated intent to be married should not be penalized under the law when compared to couples that go through the process of a formal marriage. Part of the general concept of common law marriage is based on the premise that it is just as possible for a couple to make an intent to be married without a formal ceremony as it is for a couple to make an intent to get married with a ceremony.
A very important distinction between common law marriage and a ceremonial marriage is that you do not need a marriage license to legally marry under common law. Further, in Ohio, no governmental agency can enter a certificate of common law marriage into its records. Therefore, this keeps any governmental agency from ever showing the existence of a common law marriage in their records. So, a common law marriage cannot be proven by contract and cannot be registered. This is not the case with ceremonial marriage.

Is Common-Law Marriage Valid in Ohio?

While many states recognize common law marriage, Ohio is not one of them. In Ohio, which does not recognize common law marriage, Ohio Revised Code Section 3105.12(A) provides that a marriage must be created in conformance with the Marriage Recognition Statute, OHIO REV. CODE ANN. 3105.01 (B). Under that statute, recognition of a marriage requires the issuance of a marriage license by a Probate Court, combined with a ceremony. Ohio Revised Code Section 3101.01 provides that common law marriage was valid in Ohio prior to January 1, 1991. However, in 1991, Ohio overtly abolished common law marriage, and therefore does not precognize it. Since Ohio statutes overtly state that common law marriage is no longer recognized, some courts have found a legal exception for non-residents whose marriage would be valid under the laws of their home state. An example would be if a couple were married in Pennsylvania who would be considered married under Pennsylvania law, despite the fact that they were currently residing in Ohio. Although this exception has existed in Ohio, as of May 20, 2012, the Joint Committee on Agency Rule Review has approved a change to New Ohio Administrative Code Section 5:21-5-10 with an effective date of June 1, 2012. That rule will now read as follows: "Section 2105.18(B) of the Revised Code provides that, for the purposes of sections 3105.171 and 3105.39 of the Revised Code, the term "spouse" shall not include an individual who is not a person of the opposite sex for whom the definition of spouse in division (D)(2) of this section would apply if the individual were married to a person who is a person of the opposite sex." This essentially codifies the restriction against recognizing a same-sex marriage in Ohio law, which some counties were ignoring through this loophole.

How Long Does Common-Law Marriage Last?

In Ohio, there is a common misconception that for a common law marriage to exist, the parties must live together for 10 or more years. There are even numerous websites that state the 10 year requirement. This is absolutely not true. There is no minimum amount of time that common law spouses must live together before they are considered to be married. In fact, people can create a common law marriage by simply writing a "joint declaration" or other document stating their intent to be married. This is in direct contrast to states where a common law marriage must be in existence for 10 years, or 15 years, or where the parties must be together for several years and then have some sort of "public declaration of marriage" such as a marriage ceremony or a religious ceremony.
The issue of how long parties must live together to have a common law marriage came up in the case of Hetrick v. Duane & Delbert, decided on June 21, 2007 by the Ohio Court of Appeals. In this case, the parties did not have a formal marriage ceremony, but at some point exchanged vows and began living together. Years later the pair separated and while they were separating, one party got a job with Duane & Delbert and was injured at work. The injured party sued, and there was an issue regarding whether he could collect workers compensation benefits. The employer objected because the injured party was attempting to raise his partner, ("Jane"), as a dependent. The employer argued that as the couple were not formally married, Jane could not be considered as such. Jane asserted that she was a common law spouse. While the lower court determined that she was not married under common law through its consideration of several factors, the court of appeals overruled the lower court’s finding, essentially because Jane and her partner had a written document declaring their intent to marry: In Connecticut Gen. Life Ins. Co. Weichert (1992), 83Ohio App. 3d 773, 776, citing Gibbons v. Nichols (1990), 70Ohio App. 3d 51, 54, this court further stated that ‘[i]n order for a common-law marriage to exist, both parties must mutually promise and agree to marry [and] both parties must hold themselves out to the public as a married couple.’ Here, appellant and decedent both testified that they discussed marrying one another and further not only signed a document together, but also told others that they were married. Accordingly, we find that appellees have met their burden under Weichert and Witzke. Thus, the key issue for the creation of the common law marriage is the mutual agreement to be married, whether or not the parties hold themselves out as being married to third parties. In sum, the number of years that a couple lives together is not dispositive.

Common-Law Marriage Duration Requirements in Ohio

In order to meet the common law marriage requirements, the parties must have the intent to enter into a life long marriage. They need to have the capacity, which involves being of legal age to marry and not being too closely related, and they must hold themselves out as husband and wife. In Ohio, the first two requirements are almost always easily satisfied: you are old enough to marry if you are 18, and basically not more than a third cousins, unless your parents are also cousins. However, the third requirement may be the most difficult, depending on the viewpoint of the court, or jury, that may be deciding if a marriage existed.
Take, for example, the case of In Re Estate of Latham, decided by the Ohio 4th District Court of Appeals in 2008. The decedent and his "spouse" lived together for years in what could be intuitively understood to be a marriage without a license. However, the record, at least as found in the opinion, showed that he continued to lavish gifts on his former wife, and had named her as the beneficiary of his life insurance policy, and had made her his power of attorney. He did give his "spouse" other things, like a car and some jewelry, but, they never got a joint bank account or jointly owned real property. One night at 2 AM, they went to the courthouse, just the two of them, and got married. About a month later he died. On those facts, the court found that the "spouse" failed to prove a common law marriage even by clear and convincing evidence because he did not hold her out as his spouse to the world as required by the third common law marriage requirement. In a similar case in the 2010 case of In re Estate of Hankins, the Decedent’s daughter was awarded a portion his estate over his wife’s objection, after proving by clear and convincing evidence that her father and his wife, who were not given the last name, did not hold themselves out as husband and wife to the world at large. There were no head-of-household tax returns, no joint bank accounts, nor joint real estate. There was no evidence that the couple described each other as husband and wife, nor that they addressed each other as husband and wife in writing or referred to each other that way in front of non-family members. While these cases failed to establish a common law marriage under Ohio law, they were admittedly somewhat closer than the vast majority of Ohio cases on the topic. That state of the law effectively makes it very unlikely that a common law marriage would continue to be recognized in Ohio past some time in the mid-20th Century.

A Brief Legal History: Common-Law Marriages in Ohio Prior to 1991

Historically, Ohio had long recognized the validity of common law marriages. However, a significant watershed moment came with the passage of 1991 Am.Sub.SB No. 125 which banned the creation of common law marriages, but not the enforcement of those created prior to the statute’s effective date. See, e.g., Angers v. Angers, 76 Ohio St.3d 66, 66, 666 N.E.2d 1185 (1996) ("Ohio does not recognize common law marriage. But, because the common law marriage in this case was established nine years prior to the effective date of amended R.C. 3105.12, it is valid and enforceable in this state."). So, in Ohio, the existence of a common law marriage may be successfully claimed at trial of a divorce or legal separation proceeding by a party married in a common law relationship prior to 1991. In such instance, Ohio courts will not only recognize the validity of the marriage but will also consider the length of the marriage in determining an equitable division of marital property.
Further, under Ohio law, a common law marriage can be proved if there is sufficient proof that the parties intended , by their actions, to enter a marriage agreement. State v. Miller (1992), 73 Ohio App.3d 50, 50-51, 596 N.E.2d 1091. In Miller, it was noted that as recently as 1979 the Supreme Court of Ohio held in Kunkler v. Kunkler (1979), 58 Ohio St.2d 203, 204-205, 389 N.E.2d 326, 327, that the elements of a common law marriage require: "1) an actual marriage contract, in which both parties must express the intent to be married; 2) a lawful age for marriage; 3) cohabitation; and 4) a holding out to the public as being married. A contractual agreement must exist between the parties; and, it is not required that the parties express an intent to be married or enter into an actual marriage contract. Cohabitation, however, is an aspect of common law marriage which must exist in order for a common law relationship to have been created. Finally, holding out to the public implies an expression or the exhibition of something, to the end it may be known or done. Moreover, the holding out must clearly show that two unmarried people are cohabiting and presenting themselves to society as being married."

Legal Effects of Common-Law Marriage

The legal implications of entering into a common law marriage in Ohio are significant. If you and your partner share property, should you ever break up you and your partner will need to divide everything you jointly own. Interestingly, the division of such property is not on a 50/50 basis. Instead, Ohio courts, in divorce cases, will look at a number of factors in deciding how to divide the property, including:
Another important legal implication of a common law marriage involves inheritance. If a person dies without a will, the typical distribution of any joint assets with a spouse according to Ohio’s intestacy laws assuming you are legally married. However, if you are not in a legally recognized marriage, do not simply assume that you have the legal right to your ex-spouse’s assets if he or she dies without a will. While Ohio’s probate code does allow for a surviving spouse to receive his or her spouse’s inheritance, Ohio courts have said that the existence of a common law marriage does not automatically entitle a former spouse to inherit from his or her deceased partner.

Establishing a Common Law Marriage

When it comes to proving the existence of a common law marriage, the requirements vary by state. In states that recognize common law marriage, the burden typically falls on the spouses to produce sufficient evidence to establish that the marriage exists. This may include demonstrating that they have lived together for a certain number of years, have held themselves out to be a married couple, have joint financial accounts or property, and have generally conducted themselves in a manner consistent with their union. In Ohio, parties in a common law marriage must have lived together for 5 years or longer to have the marriage legally recognized.
While the specific requirements for proving a common law marriage vary by state, as mentioned earlier, the existence of the marriage must be proved by a preponderance of the evidence to generally ascertain that the couple had the requisite intent of being married. Do you and your spouse hold yourselves out as being married? Are you and your spouse required to file a joint tax return with the Internal Revenue Service? Did you and your spouse change your last names to reflect that you are married? If you can answer yes to these questions, you have a good argument that you and your spouse are married, at least under the common law. Keep in mind that there are several types of evidentiary documentation that can be used to prove that a common law marriage exists, including: (1) lease agreements, (2) joint bank and/or credit card statements, (3) legal documents referring to you and your spouse as being married, (4) checks issued in your combined names, (5) a shared driver’s license, (6) insurance policies naming each other as beneficiary, (7) items with both your names on them, (8) birth certificates of children with both your names on them, (9) statements from anyone who can verify that you are in a committed relationship with your spouse.

Conclusion: Living Together, Not Getting Married in Ohio

Understanding the nuances of common law marriage in Ohio, as well as the legal implications of the duration of a relationship, is essential for anyone considering the legal aspects of living out of wedlock. Many misunderstandings about the law surround the issue, so it’s important to be informed and know what questions to ask should you find yourself in a situation where you may be affected by these laws. A common law marriage cannot be established after 1991 in the State of Ohio, but some court rulings may still recognize a common law marriage prior to this date based upon existing case law and statutes . However, if you are just beginning a common law relationship or are well into an existing one, there are many legal factors to consider. As time goes on, the court is more likely to recognize the couple as a married couple, but there is no specific time requirement. A formal divorce, domestic relations court, or dissolution of marriage proceedings is necessary to end a common law marriage. To end the uncertainty, gain peace of mind, and perhaps even have the relationship declared legal, it’s important to understand the requirements of Ohio law when it comes to cohabitation and the development of a common law marriage.