Common Law Marriage Explained
Common law marriage is a term that is often heard but frequently misunderstood. There is also a tendency to overgeneralize its meaning and application. At its heart, common law marriage is a type of marital agreement created through the behaviors of the marrying parties rather than through formalized state processes such as obtaining a marriage license. This means that rather than demonstrating that it was intended and even contemplated by each marriage, common law marriage creates a de facto agreement resulting from a mutual intent to commit to each other.
Of particular note, common law marriage does not exist in every jurisdiction in the United States and is not uniformly recognized in those jurisdictions where it does exist. In all states, marriage requires the consenting intent of the two marrying parties. However, some jurisdictions require more than an intent to be married, such as the requirement of cohabitation for a specific length of time, or the sharing of expenses, household duties, and children. Common law marriage in its traditional sense stands in stark contrast to the majority of states that mandate specific governmental functions, such as the issuance of marriage licenses and certificates . Rather, common law marriage is an affirmation of intent and behavior rather than a method of establishing a legally-recognized agreement.
A brief history of common law marriage in Washington State is useful to illustrate its nature. In 1872, Washington State adopted common law marriage from English common law at territorial law. After 1909, Washington State joined the majority of states moving away from common law marriage. In statute adopted in 1909, the legislature required parties who wished to marry to obtain a marriage license and observe certain "formalities," the absence of which made the marriage void. However, a radical legislative change occurred with the passage of a 1971 statute that addressed the requirements of a valid marriage. The court defined "marriage" in broad terms as the state of "life whereunder one man and one woman cohabit as husband and wife, with the consent of the other." It further declared that it is "not the policy of the state to prohibit marriages which are not solemnized in a conventional manner." Such informal marriages in Washington State —often called "common law marriages"—are valid as long as the essential elements of a common law marriage exist and are evidenced through the actions of the parties.
Common Law Marriage Compared to Washington State Regulations
In 1913, Washington legislators sought to abolish common law marriage in the state. They succeeded, both in their intent to do so and then to continue that abolition by amending the statute at issue in 1929. The current Washington statute, RCW 26.60.020, which is similar to the Uniform Premarital Agreement Act of 1983 promulgated by the Uniform Law Commission, states: "Common law marriages are not valid in the state of Washington."
Washington’s ban on common law marriage was upheld by the Washington Supreme Court in In re Marriage of Williams, 103 Wash. 2d 731, 698 P.2d 1066 (1985), cert. denied, 474 U.S. 1056 (1985). After holding that the statute prevented recognition of common law marriages by the state, the court left to the legislature whether to address the situation of couples from other jurisdictions who had created marriages consistent with the laws of those jurisdictions.
In 1986, the legislature addressed such an outcome, creating an estoppel to attacking such a marriage in the state of Washington under RCW 26.60.100. The statute is phrased in terms of either a presumptively valid marriage created in another state or one that was voidable under the laws of another state. The statute requires that the parties have married in that state and have lived in that state before moving to Washington.
More than two decades after the adoption of RCW 26.60.100, both the Court of Appeals of the State of Washington in State v. Kilpatrick, 104 Wash. App 469, 16 P.3d 35 (2001) and the Washington Supreme Court in In re Estate of McCormack, 154 Wash. 2d 647, 114 P.3d 667 (2005), have held that the language of RCW 26.60.100 supported the continued viability of common law marriages in Washington.
In the Kilpatrick case, the defendant appealed his conviction for statutory rape. Under RCW 9A.44.080(3), an affirmative defense existed where the defendant and the alleged victim were married. The defendant married his alleged victim in Texas, moved to Washington and was arrested. He argued that he had gotten married in Texas and that his marriage was a valid given that the laws of Texas recognized common law marriages. The Three Western Washington court on the Court of Appeals agreed, holding RCW 26.60.100 did not limit its application to only those legally recognized marriage forms. Rather, defining legally valid marriages only in terms that marriages could be either void or presumptively valid showed that no third possibility existed, which would cover the common law marriages. The court also noted that the primary purpose of RCW 26.60.100 was to protect parties who had entered into common law marriages from losing their property interests simply because Washington did not recognize common law marriage.
In the McCormack case, which involved a question of intestacy under the state’s probate code, held that a marriage valid under the laws of a different state did not need to be a formal marriage. That Supreme Court majority opinion relied heavily on the Kilpatrick ruling and expressly affirmed it. The court reasoned: "In light of the legislature’s decision to eschew common law marriage, we can find nothing in the text or legislative history of [RCW] 26.60.100 to support a conclusion that the legislature intended all marriages, including common law marriages, to have the same effect, regardless of the law of the state in which the marriage occurred."
Later in the opinion, the court mentioned that if a party married in another jurisdiction and moved to Washington, but never registered their marriage with the secretary of state, their marriage was valid but invalid for the same reasons provided in Kilpatrick.
Washington State’s Position on Common Law Marriage
Washington State no longer recognizes common law marriage, but this issue is still relevant for some Washington residents. These marriages are only recognized if they occurred in a jurisdiction that allows them to take place, such as Texas, Iowa, or Nevada. If a couple were married in a common law jurisdiction outside of Washington, the strongest legal objection to the marriage might be that having cohabited in a common law state, the residents failed to meet Washington’s definition of domestic partnerships when they came to the state. However, Washington courts have rejected arguments that cohabitation in a common law state caused a Washington domestic partnership void ab initio (meaning that the relationship had never legally existed in the first place) on the grounds that when the couple entered into a common law marriage, they did so knowing that Washington did not recognize their relationship. Accordingly, courts have also rejected the argument that a relationship recognized as a valid common law marriage but not all the forms of domestic partnerships that Washington recognizes under state law nullifies the types of domestic partnerships that Washington courts have recognized. In other words, having been part of a common law marriage in another jurisdiction does not preclude a relationship from being a registered domestic partnership in Washington. A registered domestic partnership in Washington is also different than a common law marriage because of the mutually consenting parties’ voluntary actions required to form the relationship. To create a common law marriage in a state that recognizes it, the parties must have mutually consented to the marriage, then engaged in conduct that would cause another state to consider them married. But they did not need to record that relationship with Washington’s Secretary of State. Their action alone was sufficient to establish the legal union. In a registered domestic partnership, they must consent to the marriage and register with Washington’s Secretary of State. Couples in a common law relationship generally do not have to be of a specific sex or age to enter into their relationship. In contrast, the parties registering for a domestic partnership in Washington must be 18 years of age or older, at least one party must marry someone of the same gender, and must file their Declaration of the term with the Secretary of State. Common law marriage is also different from domestic partnership in that common law couples need not terminate their relationships through a legal process. Unless one party can demonstrate that there is no valid marriage and ask the court to declare the marriage void, that relationship lingers indefinitely and the parties continue to have the rights and responsibilities of a legitimate marriage. In contrast, a domestic partnership ends when the parties formally file a notice of dissolution with the Secretary of State. Washington courts do have continuing jurisdiction over the relationship during the process of confirming a common law marriage is valid.
Differences Between Domestic Partnerships and Common Law Marriage
Although Washington does not recognize common law marriages, couples can create other legal relationships that may be considered similar. In Washington, persons who want to create a de facto relationship face the following requirements: (1) the parties have a mutual acknowledgment of an agreement (2) the parties live together as a couple (3) the parties share their income or expenses (4) does not have children together and is not married to another person. If persons meet these criteria, a court may ask the parties certain questions to confirm their de facto status , such as: Do they have other restraint orders against one another? Are parties driving under the influence of alcohol? Do they owe any spousal maintenance to former couples? Have they attempted to negotiate and resolve their differences? Are they currently renting or own property; are they both contributing to its upkeep? Are they in agreement that they have a marital-type relationship? Do they conduct themselves publicly as a couple?
Thus, in Washington, while a common law marriage is not recognized, de facto relationships and state registered domestic relationships are similar to common law marriage in their treatment by the courts. These relationships will also give rise to the same support and division of property issues as a marriage.
Considerations for Partners Living Together in Washington
In Washington State, there are several legal options and protections available to assist unmarried couples who are living together. Cohabitation agreements are one of the most common. Those agreements should be prepared by an attorney to ensure they are appropriate for each particular relationship. Those types of relationships may include nonregistered domestic partners, roommates, platonic friendships, or romantic partners. Cohabitation agreements should define the parties’ rights concerning their assets and debts. The parties can also decide ways to best deal with issues of custody, visitation, and support in case of separation.
On July 22nd, 2009, the Domestic Partnership Law became effective in Washington State. Since that time, both Registered Domestic Partners (RDPs) and couples having a marital type relationship without benefit of marriage (commonly referred to as "domestic partners") receive the same regulatory treatment as married couples. They have the same rights, responsibilities, opportunity for economic performance, and burden of shared debts and obligations as other married couples, and they are treated consistently in the following areas by Washington State law:
For All Domestic Partners and Registered Domestic Partners:
For RDPs Only:
Domestic partnership laws require the creation or registration of the relationship, called a declaration, with the Secretary of State through a simple application process. Eligibility for domestic partnership registration includes: Although domestic partners are recognized as having equivalent rights to those of married couples, there are still important differences in Washington law between these two types of relationships.
A domestic partnerships are not treated in the same manner as married people with respect to dissolution property distribution laws. A domestic partnership is a legal relationship between persons of the same or different sex, established by filing a Declaration of Domestic Partnership with the Secretary of State; with the exception of registered domestic partnerships, domestic partners do not have the same rights and obligations under the law as married persons, such as having the right to inherit by intestate succession from a deceased partner, or sharing in a state employees’ retirement plan. However, once the Washington State legislature authorized registered domestic partnerships, there is now little difference between registered domestic partners and married spouses. As mentioned above in this blog, the rights, responsibilities, duties, benefits, opporutnities, and burdens of sharing the same are apparently identical. Therefore, in Washington State, registered domestic partnership law supersedes general domestic partnership law.
Alternatives and Legal Protections for Unmarried Couples
A couple who are unsure of whether they are legally married under common law in Washington State need to seek legal advice. Because the implications of being a married couple are so significant in so many ways , it is important that concerned individuals discuss their unique situations with an experienced attorney. This may be particularly helpful if the parties are beginning the divorce process and they have not finalized their marital status prior to separating. The attorneys at the law firm of Gordy Wright at Bader Enkelmann in Vancouver, Washington have not only extensive familiarity with common law marriage issues but also with the divorce process in Washington State.