Common Law Marriage Defined – The Basics for Washingtonians
In order to be considered a common law marriage, all of the following elements must be present:
• Both parties are free to marry because they are legally eligible to contract for marriage in the state in which they live.
• The parties have a present intent to be married. Whenever there is evidence of an agreement or mutual intent to marry, this element is likely to be satisfied. Usually, oral testimony is not sufficient for this element.
• There must be cohabitation . Cohabitation is defined as any two people who live together in the same residence in a continuous, long-term relationship. Cohabitation typically means romantic cohabitation; however, it can also be defined as two unrelated adults sharing the same residence.
• There is evidence that the parties have represented to others that they are married. It is not conclusive that statements have been made to others; the court will consider the context.
Washington’s View on Common Law Marriage in 2019
Washington State does not recognize common law marriages and has no intention of doing so in the foreseeable future. That said, Washington recognizes couples who contracted a common law marriage in other states, and those couples can file for legal separation or divorce in Washington. Washington will also grant a divorce to out-of-state common law couples despite the fact that other states do not grant divorces to couples who are commonly married. Washington prefers that the parties show that they have established residency in Washington for at least six months before they may file a petition for dissolution, and for military personnel, residence is established where the person has his or her permanent and principal home. Courts can waive the time requirement, provided that one of the parties resided in Washington at the time of the filing of the petition.
It’s important to note that while Washington may recognize a common law marriage drawn between parties from another state, that does not grant the rights that are available to people in a legal marriage. It does not provide any additional benefits and does not change how the law views the couple. Washington similarly does not recognize polygamous marriages.
Alternatives to Common Law Marriage in Washington State
While Washington State does not allow for common law marriage, the State does provide other alternatives for couples seeking legal recognition of their relationship. While originally only extended to opposite sex couples, Washington voters approved the Domestic Partnership Law in 2007, which now extends to same sex couples and to opposite sex couples that are over 62 years of age, which is an alternative to marriage in Washington State. It affords couples benefits similar to those of married couples including hospital visitation rights, the ability to make medical decisions for each other and providing insurance benefits for partners’ children. However, domestic partnerships in Washington is not a substitute for marriage as it does not confer all the rights of marriage nor does it supplant marriage.
The Legal Consequences of Not Recognizing Common Law Marriage in Washington
While couples may believe they have the same rights as legally married couples after years of cohabitation, the lack of recognition of common law marriage in Washington State means that their relationship lacks many of the important benefits and legal protections offered to married couples. Effectively, unmarried couples in Washington State do not have the following specific rights:
When these rights are not legally protected by the state, unmarried couples can face serious problems when things go wrong. Either partner can decide to end the relationship without warning, leaving the other with no claim whatsoever to the couple’s property or assets. If children are involved, one parent may make unilateral choices about their health care and education, essentially legally denying the other parent a role in major decisions. If parties have not established guardianship for their children , there is no guarantee that each parent will still have visitation rights or that they will even be able to see their children.
If a partner dies, the other partner may not be eligible for survivor benefits, creating financial hardship during a time when he or she may be too grief-stricken to advocate for himself or herself. The couple’s combined property will not automatically be distributed as it would if the couple were legally married. Essentially, each right established for legally married couples in Washington State has to be contracted for or established legally in some way in order to be protected. The fact that Washington State couples who have lived together for years have to draw up a legal contract to ensure that their relationship is protected shows how little the state cares for them, despite all that they have built together.
Options Available to Those Without a Common Law Marriage License
For couples that desire legal recognition similar to marriage, the clear option in Washington state is to get legally married. There are no residency requirements for Washington, so a couple can get legally married even if they don’t live here, and a couple can get married anywhere else and then move here.
Washington state also has an option similar to marriage called domestic partnership. A domestic partnership confers the same legal status and benefits as marriage.
In 2009, the Washington state legislature expanded domestic partnerships to all same-sex couples, and opposite-sex couples where at least one partner is age 62 or older. An opposite-sex partnership can become a marriage, but the reverse is not true: an opposite-sex marriage cannot convert to a domestic partnership.
In addition to the state registration benefits of domestic partnership, many local governments offer some other benefits to couples who register as a domestic partnership. These benefits include, but are not limited to, eligibility for public housing, tuition reduction at certain public colleges, tax credits, and deduction from inheritance taxes.
Washington vs. Other States Regarding Recognition
While Washington State does not recognize common law marriages, many other states do. Some of these states require that a couple meet all five elements of common law marriage for there to be a legal marriage. These states include Delaware, Iowa, Montana, New Hampshire, Oklahoma and Texas. Other states, like Alaska, California and Georgia, require certain conditions to be met, but do not have all five of the enumerated elements of common law marriage. States like Alabama, Colorado and Kansas have different requirements that allow for common law marriages , though they are less stringent than the enumerated elements in Washington.
Only a handful of states do not have a clear position on common law marriage and unknowns remain. A few states like Florida end up with outcome-based approaches on common law marriages. In Florida, common law marriage was abolished in 1967. However, the state does allow for recognizing common law marriages if they were created before 5 January 1967 or prior to the abolition.
The trend is clear. Most states do not recognize common law marriages, but the door is open for couples to enter into a common law marriage in some cases.