What is Common Law Marriage?
What is Common Law Marriage?
And, what does that mean? Well, historically speaking, a common law marriage is a type of marriage created by judicial decree or, in other words, a court. The phrase is used because it is based upon the parties "common law" as opposed to a statute. There is no single general rule by which one test is applied in all decisions and so the definition of common law marriage can vary from state to state. For example, some states require just a declaration of intent to marry, while others require the couple to cohabitate for a period of time . Tennessee courts have not expressly decided if a common law marriage is valid here, but, in 1819, the Supreme Court of North Carolina held that "if the parties had entered into a marriage contract, the validity would be determined solely by the lex loci contract with respect to the existence of the marriage." In other words, referring back to the 1992 Tennessee Supreme Court case Willeford v. Tennessee Eastman Company, Tennessee would honor the validity of a common law marriage that occurred in a state that recognizes such a marriage. In any event, a common law marriage requires an agreement between parties to permanently live as husband and wife and a capacity for that agreement with sufficient proof to stand the test of time, such as a written record, oral testimony, or other non-hearsay evidence.
Is Common Law Marriage Allowed in Tennessee?
In 2009, the Tennessee legislature passed a statute that effectively abolished common law marriages in Tennessee. The relevant statute is T.C.A. § 36-3-406, which states: "No common law marriage entered into after January 1, 2010 shall be valid in Tennessee." Before that date, the general law of Tennessee was that if parties had been "Common-law married" at a location that recognizes common law marriage, the marriage met the requirements of the laws of this state.
For example, the facts of the case of Wolfe v. Wolfe , 2007 WL 4355224 (Tenn. Ct. App. 2007), outline a situation where two people were considered to be "Common Law Married" and whose marriage was valid in Tennessee. Those facts were that a man and woman went to North Carolina in 2001 and purchased property together, where they "practiced a marriage relationship." In 2002 they moved to Tennessee where they continued to live together as husband and wife (according to the court). In 2005, seven months after their move to Tennessee, they were granted a divorce. The Wife attempted to argue that the divorce in Tennessee was invalid as the parties were never legally married under Tennessee law. The court disagreed and held that as the parties were legally married in North Carolina before moving to Tennessee, they were legally married in Tennessee even though they did not enter into a marriage contract under Tennessee law.
Essentially, the question to be asked is whether the parties were legally married in another jurisdiction that recognized common law marriage. If so, they are considered to already be married under Tennessee law and thus will not need a divorce but instead a judicial declaration of marital rights and obligations or a postnuptial agreement.
How Common Law Marriage Impact Couples’ Legal Rights and Responsibilities
Even though a common law marriage does not exist in Tennessee, issues may arise when two parties mistakenly believe that they have established such a relationship. Problems typically concern property rights, inheritance, and child custody. For example, a common occurrence is that one party believes he or she is entitled to marital property upon the death of the other party. However, Tennessee has statutory intestacy provisions that address the disposition of property without a will. If no will is found, the property automatically passes to the children of the deceased or to the parents of the deceased if no children. Property acquired during the relationship does not automatically pass to the surviving partner, if the partners are not legally married.
The marital presumption is a U.S. common law principle, well established in most states and jurisdiction. A contract or agreement with regard to the disposition of the division of property or its transfer upon death or divorce has the potential to be enforceable by a court. Thus, the unmarried couple can avoid potential pitfalls under the common law by signing a written agreement that addresses the disposition of their property in the event of death, divorce, or separation.
What are Alternatives to Common Law Marriage in Tennessee?
While common law marriage is a recognized way to obtain the legal rights and privileges of marriage in Tennessee, there are alternatives available. The most obvious option is formalizing the relationship with a marriage license. However, other types of legal agreements can also provide similar results. A domestic partnership is a legally issued document that, although it has no official legal meaning or status, offers the same benefits as a marriage license for the couple and it is important to note that some employers offer health insurance for a domestic partnership as well. Similar , in some ways, is a cohabitation agreement that encompasses any and all agreements between the two parties about matters such as property, support, or any other issues they want to clarify before moving forward.
Since the distinction between informal cohabitation and a legal marriage is often difficult to determine, the best option is always to get a marriage license at the beginning of your relationship. As previously discussed, however, there are certain situations where that is not practical, and other legal options may be of use instead.
Common Myths and Legal Guidance on Common Law Marriage
The subject of common law marriage in Tennessee and when a couple is considered to be legally married often leads to a plethora of misconceptions. For instance, many people believe that as long as they have lived together for a certain period of time, they are married under the terms of common law or have even been married for a long time.
However, clear legal guidance regarding marital status in Tennessee is extremely important, especially because there are specific factors that go into determining whether a couple qualifies as a common law marriage.
Our firm has the experience necessary to help you determine whether you are considered to be legally married. We will work with you to obtain a legal opinion based on your circumstances, and will then advise you on your rights.
Frequently Asked Questions about Common Law Marriage in Tennessee
Does Tennessee allow common law marriage?
No, Tennessee does not recognize common law marriages. Common law marriages that were entered into prior to January 1, 2016 are recognized as valid. Any marriage entered into after that date is not a valid marriage in the state of Tennessee.
Can a common law wife take half the man’s property in Tennessee if they separate?
No, because the common law marriage is not recognized as a legal marriage after January 1, 2016 , she is not entitled to any property as an ex-spouse because they never were legally married. This is why it is so important to formalize the legal relationship through a marriage license.
Does Tennessee honor common law marriages from other states?
Not unless the common law marriage occurred after 2016. Any common law marriages that occurred prior to 2016 are no longer honored as valid, and therefore are no longer legal. It is important to note that this is a general rule. There may be exceptions to the general rule.