**Common Law Marriage Explained**
In their most basic terms, common law marriages, often referred to simply as common law, are informal agreements between couples to live as married based on mutual agreement and behavior in most respects of a more formalized marriage — think finances, shared property, etc. — but without the legal formalities required for a more traditional marriage. In a traditional marriage, a couple must acquire a marriage license, perform a solemnized ceremony in most cases, and otherwise follow legal expectations at a county level, state level and even federal level. However, in common law situations, none of those formal requirements is in place, meaning that a common law spouse has all the same rights and responsibilities of a spouse in a more traditional marriage under very different circumstances. States each have different requirements for how common law marriage must progress and what progress within the informal marriage means for a spouse. For example, in Pennsylvania, the parties must share a residence but do not need to live together for a specified period of time. In Ohio, however , there is no form of common law marriage allowed for non-clergy or non-clerical couples as of 1991. Another example of this is how common law marriages worked within the United States approximately a century ago. A person could marry another person by simply saying they were married before a group of people and doing so repeatedly. Early colonists also did not require formal marriages, but followed the concept of common law marriages, instead. A common law marriage was recognized in the colonies when a couple verbalizing their intent to marry with another person or group of people as witness to the announcement. In order to be the basis of a divorce today in the state of Ohio, a common law marriage must have taken place in place of a more formalized traditional marriage. While common law marriages are not recognized in Ohio anymore, many other states do still recognize them. In some situations, a plaintiff spouse in a common law marriage situation can get around the more stringent requirements for divorce in Ohio through the acknowledgement of that marriage and the reason for its end in another jurisdiction.
**Ohio and Common Law Marriage**
Ohio does not recognize common law marriages by statute. However, until 1978, Ohio recognized common law marriages. In fact, Ohio, like a number of other states, was once a stronghold of common law marriage.
Between 1978 and 1989, Ohio legally recognized the validity of certain common law marriages which existed in other states. R.C. 3105.12, enacted in 1978, prohibited new in-state common law marriages, but provided for the recognition of out-of-state common law marriages, unless prohibited by "lawful service of process within the state."
In 1989, the Ohio legislature eliminated the common law marriage statute, but continued recognition of those common law marriages which lawfully existed in other jurisdictions prior to that time. R.C. 3105.12 was replaced with a code section which essentially provided that all new marriages in the State must be statutory. The statute also provided for the recognition of those common law marriages "entered into" prior to October 10, 1956.
Despite the repeal of R.C. 3105.12 and the complete move to a statutory marriage scheme, courts continued to recognize common law marriages as valid, depending on the facts surrounding the marriage.
In 2013, Ohio law was amended to codify the abolition of common law marriage. Prior to this time, Ohio had allowed for the registration of "declarations of marriage." This registration process was, in effect, a means by which couples could enter into an agreement for a common law marriage to be recognized. Registration was available only to Ohio residents, though, and was not widely utilized. Thus, even though the registration process was available to the public, there was no draw for it.
So, the 2013 law became effective Ohio Revised Code §3105.12(B)(2) abolishes any common law marriage entered into in Ohio, as well as any other previously valid common law marriage which is not registered. However, those marriages entered into prior to October 1990 are still considered valid if those marriages otherwise meet the requirements of Ohio law.
**What is Needed for Ohio to Recognize a Common Law Marriage**
A common law marriage must meet certain legal requirements in order to be recognized in Ohio. As previously mentioned, those requirements vary from state to state. The following refers to general requirements, and may be added to or amended by state statute or judicial precedent:
(a) Voluntary agreement between the parties;
(b) Contractual capacity of both parties;
(c) Consummation by sexual cohabitation; and
(d) Public reputation of being married by both parties.
The first requirement is the voluntary agreement between the parties to be married. This generally means that no one party has forced or coercively manipulated the other party into entering the relationship.
The second requirement is that both parties have the contractual capacity to marry, or to have the legal ability to enter into a contract, an essential element of any legally binding agreement. In other words, neither party can be married to another or be barred from marrying by age or consanguinity or affinity.
The third requirement is that the parties consummate the marriage by sexual cohabitation. Sexual cohabitation does not require that the parties to be married necessarily reside continuously together, or have sexual relations every day, but that they have lived together and assumed duties and privileges of a married couple.
The final requirement is that the parties publicly represent themselves as being married, or that the local community believe them to be married. In a modern society, this may be proved by showing that the parties have an income tax return with both their names on it, have a joint checking account, and have made joint purchases, for instance. In earlier times, a mere a denunciation of the relationship by one or both parties may have been sufficient.
**Exceptions and Recognition of Common Law Marriage in Ohio**
One exception to the rule is that if a couple enters into a common law marriage in another state, the state of Ohio will acknowledge that marriage. For example, if you were married in North Carolina under common law and moved to Ohio after the records were filed, the state of Ohio does recognize you as legally married under North Carolina law. If you happen to work for the government and have to transfer to a state that recognizes common law marriages, make sure to let them know what your situation is. For instance, I helped a military member get the benefits they deserved after someone told them they were not legally married just because they were in a state that did not recognize common law marriage. Remember, it is not the responsibility of anyone to tell you that you are legally married under a common law situation especially if they do not know the law of the state you reside in.
**Impact on Couples and Implications under the Law**
The impact on couples who may consider themselves a common law marriage is important to understand, especially as the issue of rights to property and children can become quite contentious. Because Ohio does not recognize common law marriage, a couple may be living together for 20 years and be viewed as a traditional married couple even though no license her ceremony was held at any time.
In fact, the common law marriage issue is one that is much more relevant in Ohio than one may think. When a couple in Ohio chooses to live together as husband and wife without actually getting married, the legal implications of their relationship can become quite complicated if the couple ever separates or one of them passes away. Think about these issues:
- Legitimacy of children: When a couple in Ohio has children together, custody and support rights must be established through the courts. Put another way, there is not an automatic assumption that in cases of separation , the mother gets custody of the children, and the father must pay child support.
- Division of assets: In the event of dissolution or breakdown of a relationship, the division of assets becomes a legal minefield where the court must divide the belongings as if the couple were legally married, which has many implications itself.
- Social Security benefits: A common law spouse must prove their status in order to claim a deceased partner’s Social Security benefits.
- Receiving spousal support: Similarly, to access funds through a spousal support agreement, the spouse must prove that there was a valid common law marriage in place that existed prior to the Johnston decision.
For these reasons and others, it is clearly advisable to check with a lawyer familiar with the topic should you find yourself in a situation where you or your partner believe you are in a common law marriage under old law.
**Protection of your Rights in the Relationship**
Finally, Ohioans can protect their rights regarding their relationship in specific ways. For example, regardless of whether you have a common law relationship or a typical relationship, you should consider entering into a legal cohabitation agreement, one that complies with the laws of the State of Ohio. This agreement will set out the terms of your relationship, property rights, and more. These agreements also memorialize the nature and extent of the parties’ assets and debts, and contain provisions such as waivers of spousal support. As a result, if the relationship ends, and even if you have relied on a cohabitation agreement in making financial decisions, there are no unfair results. Lahoud v. Ordway, 3rd Dist. Wyandot No. 16-08-13, 2009-Ohio-6741.
As noted above, the cohabitation agreement can include provisions strongly advising the parties to seek counsel and even illustrating how they have resolved certain issues and why. If the parties cannot agree after it is put in place, it is not an enforceable contract. If they can complete their agreement, the court will generally accept it. If they cannot reach agreement, the property is treated as tenancies in common.
While we have seen and have been involved in some very nice cohabitation agreements, unfortunately, we have seen and heard about some agreements that are poorly drafted, lack detail, do not include the necessary waivers, headings, and other essential elements, and are not even close to complying with what the law requires. Further, many people do not know that the requirements for such an agreement differ from state to state – this is not a "one size fits all" type of a scenario. So even though we believe we are fortunate to have several very strong resources around the country that can assist with such agreements, be careful in selecting an attorney to help you with one, because it is essential. You can make some big mistakes with these agreements if you don’t consult with a knowledgeable attorney.
And of course, remember, in Ohio, just because people do not enter into a contract that states that they are married does not mean you will be considered married. Other options are available, too. For example, if you cannot resolve your issues, you might want to consider forming an LLC or corporation.
**Conclusion and Ohio Legal Advice**
In conclusion, legal marriage is the only form of marriage that is recognized in Ohio. States that allow for common law marriages no longer apply this doctrine to the citizens of Ohio – at least not after October 10, 1991. Common law marriages created in other states may continue to be valid in Ohio, and some allude that heterosexual relationships could be allowed as valid married relationships in Ohio now . So, if you are unmarried and living together with someone but do not hold yourself out as a married couple, you might want to consider whether you need the extra layer of protection and legal opinion on your relationship status. The bottom line is that every situation is different and it is a good idea to reach out to a qualified attorney to receive legal advice tailored for your unique situation.