Common Law Marriage in Massachusetts: What You Need to Know

What Exactly is Common Law Marriage?

Simply put, a common law marriage is a relationship in which a couple has agreed to be married and has cohabitated for a less defined period than required for a formal marriage to occur, and in the absence of a license or formal ceremony. This definition is quite broad, and common law marriage is a complex topic. Regardless of the specific criteria necessary to establish a common law marriage in any given state, the relationship between individuals and the resulting legal parameters are usually agreed to be mutual, cohabitative , and conferred by intent. Depending on the jurisdiction, common law marriage stems from either an express or implied contract between the individuals, and can be unwritten or not formalized. The idea of common law marriage, based on its name, seems to imply that a couple can become married simply by cohabitating for a sufficient time and holding themselves out as a married couple. Because states do not apply uniform standards to common law marriages, there is little homogeneity in how these relationships are treated within the legal system.

Massachusetts Common Law Marriage Laws

Massachusetts does not recognize common law marriage, and such a relationship would not be valid for any legal purposes. There is no statute in Massachusetts that addresses the validity of common law marriage. In fact, case law in the Commonwealth has expanded the unavailability of such relationships. In Cudmore v. Gorman, the court held that same-sex cohabitation relationships are not entitled to the same protections as marriage. Although the court in Goodridge v. Department of Public Health established the right to marry, before and after, same-sex cohabiting partners could not acquire the legal protections of marriage. As a result, uncommon law unions are not recognized in Massachusetts.
In some states, cohabitating partners may be entitled to family law protections based on the length and financial interdependence of their relationship (Sullivan v. Smith). Common law marriage is a unique issue in family law practice and is not implemented in Massachusetts.

Common Law Marriage Alternatives under Massachusetts Law

While the romances of the relationships that are deemed a "common law marriage" may run as deep as a legal marriage, the law in Massachusetts does not acknowledge the couple as legally married. Even without a wedding, that many years of cohabitation and partnership cannot exist without providing some legal benefit. If couples are not allowed to have their "common law" relationship recognized in Massachusetts, how can they ensure that their partner has the right to make decisions about their care, or receive their assets upon their death? For those who desire the benefits and protection of marriage without being married, there may be other legal options available. In Massachusetts, as well as many other states across the country, civil unions and domestic partnerships are available to couples who wish to enjoy many of the same benefits and privileges that a married couple enjoys. These alternatives are similar to marriage, and may allow access to property and information that a "common law spouse" may otherwise be unable to obtain. Civil unions and domestic partnerships are available to both homosexual and heterosexual couples. Although the requirements may vary, the couple must meet certain criteria before they are eligible for the benefits of civil union or domestic partnership. These include becoming financially interdependent, having the intention of being together exclusively, and living together for a specific period of time. A civil union is a legal agreement that provides to couples some of the same rights and obligations that are typed into the legal concept of marriage. In Massachusetts, the civil union is not recognized as a marriage, but provides for similar rights and benefits. Civil unions are mostly created among same-sex couples. A domestic partnership is an intimate relationship between two people who live together in the same household. The relationship has similar responsibilities and benefits to a married couple, but is defined in a contract, rather than in a religious or civil context. Despite your desire to marry or not, you should consult an experienced Massachusetts family law attorney to determine your rights and responsibilities before entering into any legal agreements as a couple.

Common Law Marriage in Other States and its Status in Massachusetts

While Massachusetts itself does not allow couples to enter a common law marriage, many other states do permit common law marriage today. Even though Massachusetts does not, that does not necessarily mean that when a couple that was married under the common law in another state moves to Massachusetts, that the "marriage" will simply be voided. There are two current Massachusetts Supreme Judicial Court legal decisions that factually state that common law marriages are not permitted in Massachusetts. However, neither decision says that the marriage will not be recognized in the Commonwealth if it was entered into outside of Massachusetts. The decisions are Dwyer v. Newgass, (1970) 355 Mass. 550 and Holiday Inns, Inc. vs. Commissioner of Revenue, 366 Mass. 535 (1975). In these cases, the Superior Court and SJC were addressing the tax implications of a common law marriage and determining that the tax benefits that would have been available to a legally married couple, were not available to unmarried couples entering in a common law marriage . Those decisions do not address whether a common law marriage legally entered into in another jurisdiction would be recognized in Massachusetts. The answer lies in another area of law. When determining which states law to follow to apply in a case in Massachusetts, courts look to the authorities of "conflicts of law". The analysis that the courts use is referred to as "lex loci celebrations", which means that Massachusetts will follow the laws of the state where the event (in this case, the marriage) occurred. In 8 Mass. Prac., Marital Practice, §8:18 (2d ed.) it states that "The most logical rule is that a marriage is valid where it is contracted if it conforms to the laws of the jurisdiction where performance occurs." This holds true when a couple enters a common law marriage in another state where the couple physically meets the requirements of the common law marriage.

The Impact of Not Recognizing Common Law Marriage

The implications of believing you are in a common law marriage in Mass. can be serious. Just because a couple believes they are living as a married couple does not automatically entitle them to the same legal rights as a married couple. Many same-sex couples who weren’t able to marry in their home state because of restrictive marriage laws, have opted to try and secure the benefits of marriage by living together and holding themselves out to the public as a married couple. As with married couples, unmarried couples, common law or otherwise, do not automatically share rights to the property owned by their significant other. For example, a partner who believes his or her property is shared property because the parties lived together and held themselves out to the world as married will not automatically have an interest in the property, unless he or she is on title. This can have serious financial repercussions for both unmarried partners when they separate. Consider this example:
Bobby and Amy purchased a home in Manchester-by-the-sea together. They were together for ten years and raised a family together. They never marry and never intend on marrying. Bobby leaves and immediately files for divorce. Amy believes she is entitled to half of the proceeds from a sale of the house because they lived together and held out the relationship as a marriage without the formality, and everyone they knew called them married. She learned upon Bobby’s filing, however, that he is the sole owner of the property. She learned that under current Massachusetts law, Bobby is 100 percent entitled to the proceeds in a sale. Interestingly, the divorce appellate court in Massachusetts recently considered the case of Rioux v. Rioux, where the wife was awarded half of the proceeds from the defendant’s sale of a property he purchased prior to marriage. The case occurred before Even-Zohar v. Jordan MAR., a case decided two years ago where the divorce court denied the plaintiff an interest in the defendant’s premarital property that defendant had used as his primary residence, and later the divorced appeal court affirmed. While it is perhaps unfair that Bobby is not required to share the proceeds from the sale with Amy, those are the legal consequences of a common law marriage not being recognized in Massachusetts.

Legal Options for Unmarried Couples in Massachusetts

Legal advice is key. Like every other area of the law, there are right and wrong ways to protect the rights of unmarried couples in Massachusetts. The best way is to have a Massachusetts attorney draft all documents, advise on issues and litigate as necessary. Too many people in Massachusetts think they can prepare their own wills or trusts, leave their homes as joint tenants to their live-in partner without careful consideration of what will happen if they choose to break up or one of them dies or becomes disabled. So many good attorneys have become involved in cases after someone tries to prepare their own documents or use a form from the internet.
There are many documents that a Massachusetts attorney can prepare to protect an unmarried couple. These include:
Pre-nuptial and cohabitation agreements: these are written contracts between two parties whereby they agree to support, provide financial future security and even family planning issues. These agreements work only if executed by two parties with a full understanding of their legal significance.
Wills: it is essential that any unmarried person have a will effectively to control their estate and divide their property between their children , siblings, parents, or other people.
Trusts: a Massachusetts estate planning attorney can even create irrevocable and revocable trusts for both persons where property can be held jointly and divided among the parties.
Insurance/Retirement: unmarried persons can each name the other as beneficiary on life insurance policies, pensions, IRAs as part of their estate plan.
Leasehold: both parties can enter into lease agreements for each of their premises and perhaps have them jointly held in trust or segregated within the estate plans.
Powers of Attorney: one party can give another party the authority to help them in managing their financial affairs in the event of disability. While a durable power of attorney may be effective in the event of a disability, the authority to control the financial affairs of another, health care proxies that allow a person to decide to terminate life support, and health care proxy are crucial for effective estate planning.