What is a Common Law Marriage?
Common law marriage is a contractual agreement between parties to be married that, in the absence of the agreement, would not legally bind the parties for purposes of state law. The term "common law" indicates that the spouses have created a marriage-like status by tacit agreement rather than formalized by license and ceremony.
Generally, to establish a common law marriage that may be legally recognized, the following elements are required:
- (1) the parties must have capacity to enter into a marriage;
- (2) the parties must have mutually agreed to a marriage;
- (3) the parties must have cohabited; and
- (4) the parties must have held themselves out to the public as being married.
Common law marriage was historically used in the absence of statutory requirements defining marriage such as age , blood relation, residence, or clerical approval or the lack of funds for a religious ceremony. Thus, it served a unique social function in early American history and the history of many other nations before the advent of formalized civil licensing requirements.
By the end of the 1800s, however, all U.S. states had adopted laws defining marriage and many states had abolished common law marriage. But before abolishing the rule, many states excluded common law marriages entered before abolishment, thus effectively allowing common law couples to remain married.
Twelve states, the District of Columbia and various Native American tribes still recognize common law marriage.
Does Washington Recognize Common Law Marriage?
According to the Washington State Legislature, "common law marriage" is a contract that exists when certain requirements are met. A: both parties must have the capacity to enter into marriage at the time the common law marriage begins; B: both parties must agree to be married; C: the parties must have acted like they were married (jointly owning property, filing tax returns together, jointly raising children, etc.); and D: both parties must be of the legal age to marry.
As per RCW 26.60.040, Washington State has not recognized or created common law marriages since 1 January 1913. Common law marriages, however, that were entered into prior to that date may be recognized. Prior Washington case law has stated that a valid common law marriage, entered into in another State, may be recognized in Washington State if there has been no changing of condition to invalidate its recognition.
For example, consider the following case.
Mr. and Ms. Shalabi began cohabiting in 1986. They lived together in the state of Washington until 1993, where they had two children. While cohabiting, Mr. Shalabi filed tax returns for the years 1992 through 1994 listing his status as married, listed wife and children at his home address, and even executed a deed about their real property listing his wife as an owner. He also included her in his bank accounts, expanded credit cards to include her name, and allowed her to use his credit card for personal expenses.
In 1994, Mr. Shalabi was arrested on a federal charge, and later pleaded guilty. In 1995, the State of Washington adopted the Revised Uniform Reciprocity of Judgment Act, which allowed for the enforcement of another State’s judgment in Washington.
In December 1997, Mr. Shalabi filed a second petition for personal restraint against the court’s decision, asking the judge to quash the second bench warrant. He also sought to vacate the $2587 in fees that had been awarded against him in the first petition.
Mr. Shalabi’s attorney argued that Ms. Shalabi’s claim of a community property interest in some real estate was basically a claim of a common law marriage that the State of Washington refused to acknowledge. The attorney further claimed that Mr. Shalabi’s conviction was based on this community claim.
The Court of Appeals Division III heard the case, noting that, once a common law marriage in another state is established as valid, the State of Washington will only look at the existence of the common law marriage when considering how to enforce or recognize it.
The Court ultimately remanded the case. Mr. Shalabi, upon remand, had 30 days to notify the court if he wished to enforce any common law marriage, or if he wished to challenge the validity of the common law marriage.
Other Options to Common Law Marriage in Washington
A legal alternative to common law marriage is what is commonly known as a domestic partnership. Washington State has made this available since 2007, primarily to offer same-sex couples the same rights and responsibilities as married couples. Now, however, straight couples can also take advantage of the state’s domestic partnership option so that they can enjoy similar perks, rules, and protections.
Similar to marriages, the legal requirements for domestic partnerships include, but are not limited to:
· Sharing a residence
· Using a common financial account
· Honestly presenting yourselves as a couple to the public
· A mutually supportive financial relationship
Keep in mind that a domestic partnership may not be available to you if:
· You both have been registered domestic partners or were previously married to each other.
· One or both of you are under 62 years old (if the younger partner is male). Washington State law currently grants this option only to couples where at least one partner is age 62 or older.
Another similar legal option to consider is called a cohabitation agreement. This is essentially a contract between partners who live together but who are not married. Cohabitation agreements may be especially desirable for couples who are set on avoiding marriage or maintaining their finances separately, but who would like to be recognized as committed partners by the state.
Rights and Responsibilities with No Common Law Marriage
Property Rights and Obligations in Absence of Common Law Marriage in Washington
While Washington does not recognize common law marriage, there are some areas where the law treats long-term couples in a manner similar to married couples for purposes of child custody and property division. This section summarizes some of these limited rights and obligations that apply in the absence of a valid marriage or a common law marriage.
Child Custody
Generally, raising children together and living together are very strong factors that affect which parent has custody of the parties’ minor children in the event of separation. For unmarried cohabitating parents, Washington courts enforce a parenting plan over the rights of the parents under an intestate succession. The Washington Legislature has enacted statutes concerning the division of residential time with parents who are not married to each other, which are governed by the same statutes governing families who are married in Washington State.
Child Support
In many ways, a parenting plan between the parties takes on the same role as a child support order between parents. Under RCW 26.19.055, a child support order generally continues until the age of 18 years, unless the child is still in high school at that age, in which case the obligation to provide basic child support may continue until not later than the end of the month when the child graduates from high school . Child support for minor children may not be directly enforced in situations where the parties have ignored their rights to compel a decree of marital dissolution.
Debt
Washington law regarding debt issues between married persons can generally apply to a couple who has been living together in a conjugal relationship for a period of time. As noted above, RCW 26.16.200 provides that it is the duty of both parents to support any children they produce and make decisions regarding the care and education of their children. RCW 26.16.210 states that the liability of a husband, wife, or domestic partner for family expenses is joint and several, and the provisions of this title regarding community property control the application of the family expenses doctrine, which includes mortgage and building obligations, generally the same way as for married persons.
Community Property
It should be noted that for unmarried persons who have lived together and purchased property as a couple, even though Washington law does not recognize a common law marriage between the parties, the property may be distributed as if the parties were a married couple because of the community property laws of the State of Washington. See, e.g., In re Marriage of Brown, 100 Wn.2d 552, 675 P.2d 1207 (1984).
How to Secure Your Rights as an Unmarried Couple
Although Washington does not recognize common law marriage, you do have options for how you protect yourself and your independently accrued assets. You can draft a domestic partnership agreement, which is similar to a prenuptial agreement that outlines what each party will walk away with in the event of a breakup. You can also enter into a cohabitation agreement, like a domestic partnership agreement, that serves a similar purpose. You can also choose to have a domestic partnership through the state, despite not being required to.
Again, state law does not require you to have a domestic partnership or prenuptial agreement to be entitled to your own assets; however, it may reduce or eliminate any questions as to whether or not you are entitled to your independently obtained assets. In the event that you do have a domestic partnership or cohabitation agreement, the court is required to follow its terms. In the absence of a domestic partnership or cohabitation agreement, Washington State courts will often look at the facts of your case and utilize equitable distribution to divide your assets.
Along with a domestic partnership or cohabitation agreement, you should also make sure your estate planning documents—such as your will or power attorney—are reflective of your current living situation. You will want to include your partner in your will, granting him or her a certain amount from your estate, as well as name your partner your power of attorney. You can also add your partner to your life insurance policy. This limits what your family can claim or challenge when you pass away and protects your partner’s interest in your estate.
Even though you are not required to have a domestic partnership or cohabitation agreement, they may still benefit you and ensure that you and your partner receive what is rightfully yours under state law. You can contact your Tacoma divorce lawyer today to learn more about what you may be entitled to.
Meeting with an Attorney Regarding Rights in a Marital Context
As you can see, Washington State has a broad list of requirements that determine when each of you acquires the marital rights and obligations detailed above. What is the best way to make sure you have addressed these issues properly?
When in doubt, contact a knowledgeable attorney to help you address any questions or concerns that apply to your situation. There are so many complicated questions that surround marriage in Washington State that it is very difficult to know whether you are following all of the requirements without some legal assistance .
An experienced attorney can provide tailored advice directly addressing your situation, ensuring you know how the law applies to you and your situation. You may find that you have no questions, but in the end, it is always best to check and be sure. You do not want to find out after a disagreement with your spouse that you have missed a requirement, and have unintentionally waived your rights to certain assets.