Common Law Marriage Explained
Common law marriage is a legal term of art that defines a purported marriage between 2 adults who do not obtain marriage licenses and do not have a ceremonial marriage but, rather, consider themselves to be "married." The essential elements of common law marriage include (1) an express or implied agreement by the parties to be married; (2) cohabitation as a married couple; and (3) holding themselves out to family, friends and the world as a married couple. Common law marriage does not include a religious marriage, as those marriages are almost always formalized and documented by a religious authority.
In many states, common law marriages are recognized under the same circumstances as legally-created marriages . That is, common law marriages that were entered into in such jurisdictions are viewed exactly the same as marriages that were formalized with a marriage license and a ceremonial marriage. While it is in some ways a misnomer that common law marriage is a creature of common law (as distinct from statutory law) because it is actually governed by statute in jurisdictions allowing common law marriages, the reality is that most states do not allow common law marriage. Virtually all that need to be done under the Michigan law governing marriages is to file a paper with a clerk of court, which does not require any ability to access marriage records.
Does Michigan Recognize Common Law Marriage?
Common law marriage, or the ability to form a legal marriage without a license or ceremony, once played a significant role in Michigan. However, this practice was abolished in 1957 via statue and is no longer legal in the state. Michigan does, however, allow for various exceptions and other alternative routes to marriage.
There are a number of situations in which individuals may have the option of officializing their relationship through common law marriage in Michigan after the fact. Under Michigan State law, if one or both of the parties to a common law marriage, entered into before 1957, remain living at the time the statute was passed, the legal union is assumed to be valid unless the couple takes steps to disprove the marriage.
The legal circumstances under which a legally valid union under the old rules can be dissolved include:
There are other exceptions that allow for a common law marriage to be established through the means of a retroactive order by the circuit court in the county where the union occurred.
History Behind Common Law Marriage in Michigan
Historically, common law marriage was recognized in Michigan where two parties gathered facts and evidence that confirmed they were a married couple. It is believed that this originated in 1805, when the Michigan territory was part of the United States. Little evidence or documentation was needed. There was basically no set form of conduct observed in a common law marriage. Couples simply decided they were married and acted accordingly. However, this practice of common law marriage in Michigan became complicated and problematic.
Following an influx of immigrants into the state in the middle of the 19th century, an increasing number of persons started to marry without a formal ceremony. Some local registrars and clerks in Michigan began to accept these couples for licensure as a means to streamline their workloads. During the Civil War, several hundred couples were belatedly documented with common law licenses by Michigan county clerks. From late 1862 to early 1863, some 285 people married in Macomb County under this provision.
Given the absence of standardization of when and how common law marriages were performed, from the mid-1890s through the mid-1900s, Michigan courts consistently rejected the enforcement of common law marriages. For a few decades, the legislators, lobbyists and lawyers discussed the matter. On January 1, 1957, a mandate went into effect that prohibited the recognition of common law marriages in the state.
There were those individuals in Michigan who were unhappy with the prohibition of common law marriage, especially those who had entered into informal unions before 1957. The Uniform Marriage Act was enacted in 1957, but the law drew much controversy. It stipulated that all ceremonies prior to May 1, 1958 would constitute valid marriages. The statute extended to including the deeming of couples who established a stable relationship, lived together, were able to bear children and openly represented themselves as married, as constituting a common law marriage. A bill was introduced in 1963 to eliminate the deeming provision. It was not passed. Instead the legislators added to the bill that stigmas, such as those who failed to file tax returns or discharge financial obligations or who were forced to move from the state, would not bar a person from claiming a common law marriage.
There were other provisions that were contemplated as potentially restricting the ability to establish a common law marriage among some people. By 1977, a final amendment was adopted to remove some of the restrictions (for example, the residency rule) by adding that a couple could be married through common law regardless of whether they were residents of Michigan. There has been some controversy over whether the deeming provision is still in effect. The case law on this matter remains unsettled.
Common law marriage in Michigan today can be established by demonstrating an assortment of circumstances, such as the couple deciding to marry, occupying a common residence, looking after the home, wearing wedding rings, enjoying joint finances, living as spouses, having children, sharing last names and attending family functions. The fact that a couple is married under common law can also be established if the two parties have simply held themselves out to be married.
How Moving to Michigan Impacts Common Law Marriage
When couples who are already in a valid common law marriage move to Michigan, the presumption is that they were validly married in their previous state and will continue to be validly married in Michigan. After a common law couple moves to Michigan, if at least one year has passed and the parties have not applied for annulment or divorce Michigan courts will presume the parties to be validly married.
That said, the Michigan statute does not recognize common law marriages from other jurisdictions as valid. For this reason, providing proof to the State is imperative. In the absence of practical guidance, however, practitioners and judges have been known to ask for the following when dealing with this type of case:
a. Proof of marriage is required
b. Proof of more than one year must be provided (such as showing joint tax returns).
c. Showing of intent to be married.
d. Physical cohabitation.
e. Proof that parties considered themselves married.
Michigan Legal Alternatives to Common Law Marriage
The extremely limited number of situations wherein a person can assert the existence of common law marriage in Michigan leads some individuals to wonder if there any options available for them to pursue a legal status similar to that of a married couple. While there is no option for Michigan residents who wish to enter into a valid common law marriage, there are a number of other legal alternatives to discuss with an experienced family law attorney.
Cohabitation Agreements
As the name suggests, the terms of a cohabitation agreement can be customized to fit a couple’s situation. The type of information that is typically included in a cohabitation agreement includes the following:
Contractual agreements are generally not subject to exacting legal requirements in order to be considered valid as long as all of the following are met:
Cohabitation agreements for unmarried couples provide clarity regarding the responsibilities and expectations of both parties. Cohabitation agreements do not have to be prepared by attorneys , but an attorney will make sure the focus of the agreement is adhered to and within the bounds of the law.
Domestic Partnerships
A domestic partnership is typically intended for two people of the same sex who have chosen to live together. Cities give the right to enter into a domestic partnership. To qualify for a domestic partnership, certain requirements must be met. These requirements can vary by city, but they typically include the following:
Domestic partnerships are not recognized by the state of Michigan but are offered by a few Michigan municipalities, allowing partners to cover each other in health care and other benefits. The benefits of being in a domestic partnership include potentially paying lower taxes whereas the risks of a domestic partnership include potential loss of the ability to collect survivor benefits.
How Common Law Marriage Affects Property, Inheritance & Children
For those who assume they have a common law marriage in Michigan, there are several significant legal impacts to their property rights if the parties ultimately divorce or one party dies without a Will, including rights concerning division of property, persistent spousal support and inheritance rights. For instance, a common law spouse cannot collect spousal support if the relationship ends and without a Will, the common law spouse of a decedent does not inherit from the decedent. Accordingly, it is very important for those who have lived together that each party has a Will clearly stating how he or she wishes to dispose of property upon his or her death. In addition, there are issues of property ownership that arise when parties have lived together for years and own real estate or acquire property during the time they are in the relationship.
There are also significant issues concerning minor children in a common law marriage. For example, if the parties are unmarried, both parents do not automatically have rights as to a child and determine who has primary physical custody or who can make major decisions for the child. Without a court order or a notarized agreement, a common law father has no automatic right to determine where the child lives. Until the issue is determined in court, neither parent has superior rights. It is therefore extremely important to have legally drawn up agreements concerning major decisions affecting minor children in a common law marriage.
There are also other legal implications arising out of the issue of who has primary physical or legal custody of a child and the timing concerning when custody should be granted to each party. In a traditional marriage, once the parties are divorced, there is a presumption that once a parent who has been the primary custodian of the child for an extended period of time, should keep that status even if the court awards joint legal custody of the child to both parents. In a common law marriage, however, if there is no agreed upon order between the parties or any Order of the Court granting primary physical custody of the child to one party, at the end of the divorce action, no parent has superior rights to the child and the child is presumably equally able to live with either parent. Under these circumstances, a court may be required to order and adjudicate custody issues at the time of the divorce. This results in the filing of additional motions to modify child custody, resulting in additional costs and time in litigation and the potential unnecessary harm to the minor child. Such issues can easily be resolved if the parties have separate and joint custody arrangements entered into and signed prior to or at the time they commence the divorce, similar to what is done in a traditional, legally recognized marriage and this should be done in order to avoid legal complications arising out of such issues.
There may also be questions as to whether the parties are legally responsible for any child support obligations once the couple separates and there is no agreed upon order between the parties establishing obligations for payment of child support. When parties are legally married in a traditional marriage, there is a duty to provide child support pursuant to the Child Support Formula guidelines as well as a duty and responsibility to share other expenses for the benefit of the child. When parties are not married, there is no duty to pay expenses, other than child support. It would be important to enter into a written agreement between the parties that clearly sets forth how other expenses are to be paid, including items such as medical insurance, daycare, education expenses, tuition and other costs. Additionally, at the time of commencement of the divorce, the parties should clearly state what must be done concerning payment of child support and the method of setting the amount of child support, including how the child support is calculated under the Child Support Formula and any deviations from the guidelines that the parties agree should be made concerning the payment of child support.
What Cohabiting Couples Should Know Before Seeking Legal Guidance
An important factor for couples considering or believing they are in a common law marriage is to seek legal advice. Contact an attorney to discuss the following issues: (1) A thorough analysis to determine if the couple is even considered to be in a common law marriage, and if so, (2) Legal issues including dividing assets, and addressing support issues. Some things the attorney will help you with include being able to determine the length of the relationship, if you will be entitled to any sort of support , and how the court would divide up property if there is a separation. Because the law surrounding common law marriages in Michigan is constantly changing, journal articles are also a good way to stay current on the law and receive updates on the status of the law in Michigan. A good place to find education and updates on the law is the Journal of Family Law. Family law attorneys should be able to access this journal through their local bar associations. It is also available online, but some big cases require a subscription to receive access to case summaries and articles.