What Is Common Law Marriage?
Common law marriage, in the most simplistic of terms, is a marriage that occurs through actions of the parties rather than through the formalized process of procuring a marriage license, having a ceremony and being issued a certificate. It is generally understood that, pursuant to common law marriage, a couple becomes legally married without a license and without having to conduct a physical marriage ceremony. In the jurisdictions that recognize common law marriage, it is necessary for the parties to be legally capable of entering into a formal marriage, for example, both parties must consent and have sufficient capacity. In essence, a contract is created. In those jurisdictions, it is also necessary that the parties cohabit together for a certain length of time , e.g., seven years. Some jurisdictions require that there be evidence of the parties’ intent to enter into a common law marriage, while others have eliminated this as a requirement. The parties must hold themselves out publicly as a legally married couple and must share property together. Common law marriage is not valid in every state; however, it is important to note that if one of the parties in a common law marriage was domiciled in a common law jurisdiction (i.e., someone who comes from a jurisdiction that recognizes common law marriage and who resides there for a certain period of time) prior to moving to Connecticut, that marriage may be recognized in Connecticut. In essence, where you come from matters with common law marriage.
Does Connecticut Allow Common Law Marriage?
Connecticut does not recognize common law marriage. The State Supreme Court has expressly rejected the notion that common law marriage exists in Connecticut. See Doe v. Yale University, 252 Conn. 641 (2000). Further, the issue of common law marriage was considered in 2015. See Kilduff & Tracey, P.C. v. LaFond, 320 Conn. 179 (2015) in which the Supreme Court reversed a prior decision that found a common law marriage existed. The statutes of Connecticut provide no basis for the recognition of common law marriages.
Exceptions and Recognitions of Common Law Marriage in Other Jurisdictions
Connecticut does not generally recognize common law marriages; as previously mentioned, the state only recognizes common law marriages as of October 1, 1897, based on an exception, and in cases involving inheritance matters, where one of the parties died before October 1, 1897. A notable and well-established exception to the rule does exist, however. Connecticut has long recognized that it was more efficient and sensible for a couple to be considered as married in Connecticut if they had entered their marriage legally in another state. As a result, Connecticut courts and the legislature have allowed for such exceptions, both in dissolution cases and divorce cases, when the out-of-state marriage satisfied what the state considers the essential elements of a valid marriage. Specifically, Sec 46b-42 of the General Statutes provides that under subsection (a) "a marriage contracted out of this state [Connecticut] which is valid by the laws of the jurisdiction in which such marriage was contracted" will be considered valid in the state of Connecticut. When the marriage was legally entered into in another state, Connecticut courts will generally recognize the original validity of the out-of-state marriage instead of retroactively applying the Connecticut Statutes. In addition, Connecticut courts will not require that the out-of-state marriage meet Connecticut residency requirements, further allowing out-of-state couples to have their valid marriages recognized in Connecticut.
Legal Alternatives to Common Law Marriage in Connecticut
In Connecticut, those who do not meet the requirements of common law marriage, but wish to have some of the same rights and responsibilities as a married couple, may choose to formalize their relationship through a domestic partnership, civil union, or marriage. Domestic partnership is the broadest option, and is available to same-sex and opposite-sex couples. A certificate of domestic partnership, also called a civil union, can be obtained from any town clerk in Connecticut. Once granted, the domestic partnership certificate gives the couple the same rights, protections, benefits, and responsibilities under Connecticut law as those granted to spouses who are legally married. A civil union certificate (which has been used to refer to the same thing as a domestic partnership certificate) grants same-sex couples the same rights and responsibilities under state law as married couples.
In 2013, the Connecticut Supreme Court ruled that civil unions, domestic partnerships, and marriages perform in Connecticut provide the same rights to same-sex and opposite-sex couples. Since same-sex civil unions have been legally recognized as the same as heterosexual marriage, same-sex civil unions should also be interpreted to be a legal marriage.
Therefore, couples who have a domestic partnership or civil union certificate can dissolve that relationship through divorce. These types of partnerships also determine who has rights of custody over children, and who has visitation, as well as rights of inheritance if one partner dies .
Domestic partnerships and civil unions differ from marriages in that the partners either had to have lived together for 6 months when certifying the partnership, or provide evidence that they lived together for 6 months immediately prior to the filing of the dissolution of the partnership. In a marriage, you do not need to provide any proof of residency prior to the marriage.
Filing a certificate of domestic partnership or civil union may also affect tax status. However, since Connecticut is not a community property state, any property that was brought into the relationship by one partner, or received by one partner as a gift or inheritance during the relationship, is entitled to protection. Therefore, similarly to divorce worksheets, regardless of how long the couple lived together, to determine what assets are individual and not subject to equitable distribution, each partner must have a list of their assets and liabilities with dates of acquisition and values.
In addition, filing a certificate of domestic partnership terminates the legal relationship between the parties. This has generally been interpreted to mean that income earned during the period of the partnership cannot be considered in dividing up property in Connecticut, assuming it is not military pay. This is different than what happens in a post-judgment modification where the income earned until the actual divorce is considered.
Overcoming the Law’s Solitary Impediments for Unmarried Couples
As with any relationship, unmarried couples may face legal challenges that require professional intervention. In Connecticut, many of these challenges pertain to property rights, inheritance and parental rights.
Property Rights
Decisions regarding the use, possession, or division of real estate are often legally complicated, especially in cases involving unmarried persons with different names that are not governed by a Marriage Contract. Moreover, various potential legal challenges to ownership or possession exist when one member of a once-cohabiting couple moves out. Many people in Connecticut know (or have known) someone who refuses to move out of the property even after the other person owns 100% of it. In these cases, the person who owns the property will be forced to file a Partition action with the court. This legal action is complex, time-consuming and costly because the court appoints a real estate appraiser to determine the value of the home and whether the value can be divided. Any and all claims to ownership or financial interest must be determined. Then the judge decides how to divide the value fairly between the owners.
Inheritance Issues
In a state where common law marriage is not recognized, inheritance poses a significant challenge for unmarried women in particular. This is especially true when assets are at stake. A woman who lives with a partner for years and is not recognized as his "common law" wife may find herself precariously cut off from any right to his estate because she did not leave him a Will. Furthermore, if she seeks a divorce settlement to which she may be entitled under Connecticut law and he died without a qualifying Will, she may be out of luck on two counts: the partition of property and her right to a share of the estate.
Parental Rights
Parental rights involve issues such as custody and the right to be involved in healthcare decisions on behalf of a child. Connecticut’s legislature has not addressed these issues directly, leaving the courts (to a large extent) to determine what constitutes "the best interests of the child." Moreover, the law presumes that a parent will act in the child’s best interests unless there is evidence to the contrary. As issues surrounding parentage and custody have become more complex with the advent of assisted reproductive technology and gay or lesbian parents, unmarried co-parents must demonstrate a commitment to their children. This is likely to include being responsible for financially supporting the children and remaining fully involved in their lives. Because the law is open to interpretation, it is wise to work with an experienced family or divorce attorney.
Conclusion and Legal Recommendations
In sum, you should now have a basic understanding of the doctrine of common law marriage in Connecticut. We looked at the history of this doctrine, why it is no longer followed in Connecticut, and we answered some of the most frequently asked questions that people have regarding common law marriage.
Most importantly, you should know that common law marriage is no longer recognized in Connecticut, and that all marital relationships created after 1898 in Connecticut are invalid unless and until the parties are formally married in a civil or religious ceremony . The law regarding marriage is constantly changing, and it varies in each state. Before you make any decisions about your marital status, you should speak to a qualified family law attorney. Only a lawyer can provide legal advice that is specific to your circumstances. Paganelli Law Group offers consultations with qualified attorneys who have experience in Connecticut divorce and family law.