What Is Common Law Marriage?
Common law marriage is a legal concept that defines a marital union between a man and a woman without any ceremony or solemnization, but nonetheless gives rights and obligations to the parties similar to a marriage. This usually involves a two-pronged test: the couple must be legally capable of marrying (i.e. not already married to someone else), and live together for a particular period of time. Every jurisdiction established it individually via its own statutory or common law definition, so some jurisdictions permit this type of relationship and others do not.
Under English common law, the mere exchange of promises to marry in the future (including the sexual component) did not create a present marriage and was therefore a mere promise to marry at some indefinite time in the future. The actual requirements generally differ from jurisdiction to jurisdiction , but many require the capacity of both parties to consent (i.e. age, if they are not already married etc.), cohabitation, and public display of reputation as being married (i.e. telling people and having everyone believe that the parties are married even though they have not entered into the legal contract yet). Most of the requirements are internal (the parties themselves believing they are married), but it also requires a substantial external component (i.e. the world around them to understand that they are married).
Even today, there are a growing number of jurisdictions that recognize common law marriage, and essentially they are doing so on the premise that the people in this situation are married, and a court should not interfere with this.
The Current Legal Standing of Common Law Marriage in Illinois
Common law marriage is not recognized in Illinois. Since the passage of the Illinois Marriage and Dissolution of Marriage Act ("IMDMA"), common law marriages have been illegal since 1905. The current law in Illinois states the following:
No common law marriage shall be valid in this State. Whether performed within or without this State, no common law marriage or informal marriage entered into after the effective date of this amendatory Act of the 91st General Assembly shall be recognized in this State. 750 ILCS 5/212(a).
An important question is whether the general prohibition on common law marriage overrides any potential exception. While there are some exceptions to common law marriage in Illinois, such as common law relationships entered into prior to June 1, 1964, the general rule is rather strong.
Common Law Marriage Exceptions and Recognition
There are a small number of exceptions to the general rule. The most significant is that the State of Illinois recognizes common law marriages legally entered into in another state. The most common example is common law marriages from states such as Wisconsin or Pennsylvania. The Illinois Marriage and Dissolution of Marriage Act states: [b]efore January 1, 1961, a person married under the common law of a jurisdiction that recognized such a marriage who remains in that marriage is considered married in this State for all purposes. The issue arises when one of the parties tries to get out of the common law marriage. There is no statute of limitations on when a common law marriage may be challenged, unlike the statute of limitations on an application for dissolution of marriage, which is 60 days after the judgment granting the dissolution. The primary case addressing the issue of the common law marriage in a dissolution proceeding is Huber v. Huber, 69 Ill.App.2d 178 (1966). In this pre-Illinois Marriage and Dissolution of Marriage Act case, a woman was given custody of three children from her previous common law marriage. The husband in this case successfully sought to have the children live with him.
While the issue of custody was controlling in this case, the Court found that "[a] common-law marriage in Illinois was not valid as a matter of law after 1905, though a subsequent marriage in another State may be recognized in Illinois if it fulfills the conditions prescribed by the Illinois Marriage and Dissolution of Marriage Act for the creation of marriage." Huber clarified that any children born before January 1, 1961 are legally considered the child of the parties, including custody determinations, child support and visitation. The parties can also enter into an agreement recognizing the prior common law marriage at any time, and that agreement can be enforced, as long as both parties doing so are legally competent. The Court stated that "[p]rovided the circumstances do not indicate fraud or duress or mental incompetency, the agreement, containing recitals of the facts from which the legal conclusion was drawn, may be adopted in proof. It is worthy of note that if the husband and wife (or one of them) is incompetent to contract, the prior marital status relationship is not binding on the unrelated third parties." Another exception is domestic partnership or civil union agreements that predate the Illinois Marriage and Dissolution of Marriage Act.
Alternatives to Common Law Marriage in Illinois
While common law marriages may be a thing of the past in Illinois, a couple still have legal alternatives to "marriage." For couples who do not wish to enter into a traditional, formal marriage in Illinois there are two options: civil unions and domestic partnerships.
Civil Unions
Illinois law recognizes civil unions between opposite-sex or same-sex couples. Additionally, civil unions provide similar legal protections that marriages do. However, civil unions are not marriages; thus, if you believe a civil union is the right option to protect you and your partner, understand that in many situations you may not have all of the legal rights as a married couple.
Some states offer domestic partnerships, civil unions, or other marriage-like relationships with other legal rights. In Illinois, civil unions provide a way for couples to bind themselves together, and in many ways, through a legal relationship even if they cannot legally marry.
Domestic Partnerships
Illinois offers domestic partnership for same-sex and opposite-sex couples as an alternative to marriage and civil union. In Illinois, a domestic partnership provides limited benefits as compared to marriage and does not include child-related rights. To enter into a domestic partnership in Illinois, both partners must: In order to enter into a domestic partnership , a relationship certificate must be completed by both parties. This document includes a declaration of eligibility to form a domestic partnership (such as confirming that both partners are adults over 18, not otherwise related, and mentally competent to enter into a relationship, etc.) as well as an affidavit in which both parties acknowledge the rights and responsibilities of a domestic partnership, which also includes financial responsibilities. This document must be filed with the Cook County clerk if the couple resides in Cook County (Chicago) or with the county clerk of the county where the domestic partnership was entered, if outside of Cook County, Chicago. To enter into a domestic partnership in Cook County, a filing fee of $35.00 is required.
For a couple to dissolve a domestic partnership, the same process exists: the couple must file a Domestic Partnership Termination document. A sole Affidavit will be required and there is no filing fee. A domestic partnership may be dissolved if either partner dies; if either partner becomes mentally incompetent or legally incompetent; if one of the partners becomes legally single after a marriage, civil union, or other domestic partnership or legal relationship; if the couple enters into a marriage, civil union, domestic partnership, or other legal relationship in another jurisdiction; or if the couple decides to terminate the relationship.
Defending Your Rights
Despite not being recognized in Illinois, engaged couples can protect their rights and interests while living together prior to a marriage. Since the state does not recognize common-law marriages, Illinois law automatically favors married persons over unmarried persons in terms of wealth, assets, and other responsibility. Therefore, it is necessary for engaged persons to consider a legal agreement to determine how they will hold their items in the event of a separation or death.
To ensure you are treated as a married couple, a contract, cohabitant agreement, or some other legal agreement should be entered into that outlines how property will be managed, divided, or claimed after a separation. Illinois law favors the person that holds the title to property such as a car or a home and does not take into consideration assets bought during the relationship unless both persons have an ownership interest in the items, accounts, and assets. In the event that a person disagrees with the ownership or claiming of an asset, they will have to prove their interest and claim to the asset, account, or property. It is likely that the most commonly disputed item for separating or divorced couples is the family home.
Under the law, a person cannot make a claim to the home or property of an ex-spouse unless the title is in their name specifically. A cohabitant (unmarried couple) that wants to make a claim to the property must prove that they have an ownership interest on the property via a tenant-in-common agreement. Another example may be if a spouse left the home and voluntarily abandoned their property, they may not make a claim to items that were left behind or acquired after they left the premises.
Therefore, a signed contract or legal agreement can be used to protect the interests of the unmarried couple. Further, if the two persons ever happen to marry in the future, the agreement can lay out how the property will be converted from shared tenants to joint tenants or another form of ownership that automatically passes to the other person if one passes away.
Securing Legal Help
For those seeking legal assistance for issues related to common law marriage in Illinois, there are a number of resources available that can help shed light on this complex area of family law. While common law marriage is not recognized in Illinois, there are other legal matters, such as common law marriages that took place prior in another state or issues related to cohabitating couples such as palimony, marital agreements for unmarried couples and property division or child support for unmarried couples with children. Consulting with an attorney experienced in family law is the best way to obtain specific legal advice in relation to your particular situation .
In addition, for general reference, the Illinois State Bar Association (ISBA) has a wealth of resources, including legal guides and FAQs, that can help you understand more about how common law marriage affects taxation, child support and alimony, and other legal circumstances. In addition, the family lawyer referral service offered by the ISBA can refer you to trusted local attorneys who practice family law.
Legal Aid Chicago is a non-profit law firm dedicated to providing free legal services in civil matters to persons living in poverty throughout Chicago and Cook County. Statewide legal aid programs are provided by the Illinois Legal Aid Online organization, which offers free and low-cost legal resources for individuals throughout the state. You may also want to check with the U.S. Department of Health & Human Services to find your nearest Child Support Enforcement office.