You may have heard of common law marriage or you may know someone who refers to another as their “common law spouse,” their “common law wife,” or their “common law husband.” But what exactly is it and what does it mean?
Simply put, the implications of a common law marriage in the District of Columbia, if it can be proved to exist, are the same as a ceremonial marriage.
What is a common law marriage?
To form a common law marriage in D.C., parties have to have an express, mutual agreement in words of the present tense, to be permanent partners with the same degree of commitment as the spouses in a ceremonial marriage followed by cohabitation. The District of Columbia will also recognize a common law marriage validly formed pursuant to the laws of another jurisdiction.
Notably, an agreement to be married at some point in the future, including an engagement, is not sufficient to establish a common law marriage in D.C. Similarly, merely living together, without more, will not create a common law marriage. Remarkably, there is no specific length of time of cohabitation (living together as spouses) required to establish a common law marriage in the District of Columbia.
How can a common law marriage end?
A common law marriage may be legally terminated by divorce or death of one of the spouses. In a common law marriage divorce case, parties can seek any and all relief that is available in a ceremonial marriage divorce case which includes, but is not limited to, equitable distribution of property, spousal support/alimony, child support, child custody and visitation.
Similarly, in the case of the death of a common law spouse, the surviving common law spouse is no different than the surviving spouse of a ceremonial marriage which means they can serve as the personal representative of the decedent spouse’s estate, inherit, and claim against the will of the decedent spouse pursuant to D.C. estate laws.
Common law marriage in the District is not limited to heterosexual couples. Not only has D.C. recognized same-sex marriage for more than a decade, it also allows the date of formation of a same-sex common law marriage to be retroactive to the original formation date even if same-sex marriage was not legal at that time.
How can a common law marriage be proven?
A common law marriage in Washington, D.C. can be established by evidence presented by only one spouse over the objection of the other spouse and/or after the death of the other spouse. The burden to prove a common law marriage is on the spouse asserting it exists.
There is a heightened burden of proof in cases where an alleged common law marriage is followed by a subsequent marriage between one of the purported common law spouses and another individual. In such cases, the proponent of the prior, common law marriage must prove the existence of the common law marriage by clear and convincing evidence.
An important aspect of common law marriage in D.C. is that it is possible to establish a common law marriage even if there was a legal impediment existing at the time of the formation of the common law marriage. An example of such an impediment is a prior marriage to another person existing at the time of the formation of the subsequent ceremonial marriage or common law marriage.
For a variety of reasons, individuals may look to common law marriage to obtain the legal status of “married” without a ceremonial marriage. However, because the existence of a common law marriage between parties is closely scrutinized in Washington, D.C., a ceremonial marriage is the more secure option for parties to receive the rights and benefits afforded by the legal status of “married.”
Similarly, because a common law marriage is scrutinized closely, asserting its existence or defending against such an assertion is a nuanced matter that can have vast legal implications. Should you find yourself in either scenario or have questions about common law marriage, you should consult with an attorney trained in the area of common law marriages in Washington, D.C.