The Basics of Common Law Marriage in Virginia

Common Law Marriage Primer

Common law marriage is a non-formal marital status in which a couple is regarded as married, without a certificate or a formal ceremony, after a certain period of time. Instead of having to go through the steps to get a marriage certificate and have a marriage ceremony, two people can simply consider themselves to be married, even though it is not a marriage that is legally recognized in most contexts. A couple is typically required to state that they are married to each other and consider each other to be a legal spouse in order to gain a common law marriage status. This assumes a lot of trust between spouses, as there is no set rules on what proves that a couple has formed a marriage under common law principles.
Both the parties must be competent in order to form a common law marriage. Both must be at least 16 years of age, must be mentally competent and must consent to the marriage. If one or both spouses are in a prior marriage, that previous marriage must be terminated , otherwise the couple may be guilty of bigamy.
Some jurisdictions require witnesses to a common law marriage in order to prevent bigamy, but even this is not widely adopted.
While there are a few U.S. states that still recognize common law marriages, many jurisdictions have rescinded them and replaced them with life partnerships. Common law marriages were traditionally used in Britain to have common folk marry in accordance with their beliefs. The need to formalize the marriage arose as an effort to protect the financial interests of the couple if they should ever separate.
In Virginia, common law marriage contracts were banned in 1904, though a common law marriage established before 1904 is still valid. In most cases, in order to be legally recognized as a common law marriage in Virginia, a couple must have the following:
If a couple displays these characteristics that appear to prove their mutual efforts to enter into a common law marriage, then they will typically be viewed as common law spouses in Virginia.

Does Virginia Recognize Common Law Marriage?

Virginia does not recognize common law marriage. In 1968, Virginia abolished common law marriage; however, those recognized as common law married before 1968 are still viewed as such today. Virginia Code §20-45.1 assures that all marriages that were valid when entered into will remain valid even if the laws of the Commonwealth change to invalidate such marriages. This means that any couple married in a state that allowed common law marriage when they entered into the relationship will continue to be treated as legally married by Virginia for as long as the last marriage in Virginia between these individuals occurred after 1968. See, for example, Holloway v. Holloway, 210 Va. 527, 172 S.E.2d 774 (1970).

Common Law Marriage Exceptions

While Virginia does not recognize common law marriage, that does not mean that couples coming from states in which common law marriage is the law of the land will not present this issue in Virginia courts. Virginia does recognize a limited exception to its refusal to acknowledge common law marriages, but only when that is called for by the Full Faith and Credit clause of the U.S. Constitution (which obliges the states to respect and honor the laws of sister states), or when compelled by the privilege and immunity clauses of the federal Constitution. This means, essentially, that if your Virginia situation has its genesis in one of the few states that still recognizes common law marriage (some of which are the District of Columbia, Iowa, Montana, Kansas, Texas, Utah, and Rhode Island), then the circumstances of the marriage may be recognized in Virginia under certain circumstances. In these cases, the burden shifts to the party wishing to annul the marriage (or seeking a divorce from an asserted common law marriage) to demonstrate why Virginia should not honor that other state’s laws. For example, the Virginia Court of Appeals has held that the burden was on the husband to show why the parties’ marriage under New York law as a common law couple should not be recognized by the Commonwealth.

Is It a Co-Habitation for Things to Do in Virginia

In Virginia, if two people are living together as husband and wife with the intent to be married, they are not considered legally married or in a common law marriage. There are no property rights or inheritance rights for unmarried couples in Virginia. In the event of a death, the surviving partner is not entitled to the deceased partner’s property. If the property is named jointly with rights of survivorship, the surviving partner would retain that property. Otherwise, the property would likely go to the legal spouse.
If a couple decides to split up after living together, neither party has any legal claim to property or spousal support as they are not legally married . In the case of jointly owned property and a breakup, the couple could agree to sell the property and divide the proceeds or have the real estate appraised, and one therefore would buy out the other. Even in this case, the person seeking a buyout may have a difficult time getting financing to buy out the other if the couple is only on title and not married. If it goes to trial, the judge would likely divide the real estate as he or she would in a divorce proceeding, giving equitable credit in the amount of the contribution the party seeking possession paid towards the property.

Common Law Marriage Alternatives

Cohabitation agreements offer a legal and enforceable alternative to common law marriage. Through a cohabitation agreement, various relationships rights can be established that would otherwise be unavailable. A cohabitation agreement may establish such things as financial arrangements, payment of debts, shared expenses and the division of property in the event that the relationship terminates. Unlike common law marriages, a cohabitation agreement provides each party with rights to enforce the contract and reach a compromise without the involvement of the courts. Such a contract can prevent disputes before they arise and also establishes rules for division of debts and property upon termination of the relationship.
Formal marriage, of course, is the most common alternative to common law marriage. While formal marriage provides the same legal rights as a cohabitation agreement, it creates the presumption of a legal marriage in the event that the validity of the marriage is ever challenged. It prevents the question of the validity of the marriage from arising. A legal marriage between a couple has the added benefit of legal protection in the event of divorce, where a cohabitation agreement will not create a legal marriage. Virginia does not recognize common law marriages, which makes it important to not confuse the two types of relationships.

Seek Legal Guidance and Next Steps

The best first step is to speak with a knowledgeable Virginia Family Lawyer. Only a few types of couples qualify as common law spouses in Virginia. Those types of couples have very specific legal rights and obligations that are different from traditional marriage mandates. A Virginia family lawyer will clarify the way in which your relationship fits into Virginia’s common law framework of marriage.
If you believe your relationship is or may be classified as a common law marriage , here are important steps to consider:

• Identify just how long you have lived with your partner and whether you lived at same residence continuously.
• Search for evidence proving you and your partner intend to be married sooner or later and hold yourselves as married.
• Locate as many non-binding documents as possible that serve as proof that the two of you view one another as husband and wife.
• Contact an experienced family lawyer who can provide valuable insight into your relationship as it corresponds with Virginia’s laws and help you to protect your rights and those of your children and property.