What Is Common Law Marriage?
In the United States, a common law marriage exists when two people establish a life together and in the eyes of the law, this holds the same power as a ceremonial marriage. These couples are not legally married by a clergy or government official, nor is a certificate of marriage issued. While it is believed that a couple must meet certain requirements in order to have this type of union, each state has its own rules. Louisiana does not recognize a common law marriage; as such, even when a couple meets these requirements, the state will not consider it. Conversely, there are states where common law marriages are valid and require no additional process.
To be considered common law in states where it is allowed , a couple must have mutual consent to be married. This may be expressed verbally or in written form. They must live together for a period of time, although the specific number of years varies from state to state. Additionally, they must intend to be married in every way other than a ceremonial marriage.
There are only a few U.S. states in which common law marriages are permitted. In the 2017-18 years, there were only nine states where it was recognized, including:
In 2019, Colorado and Texas removed court rulings for the recognition of common law unions, but any previously established common law unions will still be recognized.
What Is Louisiana’s Position on Common Law Marriage?
A common perception is that because of Louisiana’s unique civil law system, common law marriage is permitted. This is false. The Family Law section of the Department of Justice states that "Under no circumstances does the mere cohabitation of a man and woman constitute a common law marriage in Louisiana." The Louisiana Supreme Court has long held that common law marriages are not permitted in Louisiana. The case which is always cited as providing this definitive explanation is the case of Succession of McCoy, 346 So.2d 620 (La. 1977).
In McCoy, the parties lived together in a husband and wife relationship for 32 years. Testator executed a holographic will and then later married his common law wife using the name "Wade McCoy." The children of his first marriage contested the validity of the will. In this case, it was held "We have no difficulty with the fact that Thomas and Mary cohabited together for over 30 years. Nevertheless, the evidence does not establish they were expressly or tacitly contracted to be married by the law of Louisiana."
The Louisiana Code defines marriage and states that marriage is a contract. La. C.C. art. 86 provides:
"Marriage is a legal relationship between a man and a woman created by Civil contract. Marriage is constituted by the consent of the parties legally capable of contracting, followed by their declaration that they take each other as husband and wife before a registrar or person authorized by law to solemnize marriage."
Although the Louisiana statutes define marriage as a legal relationship between one man and one woman, there is no article in the Civil Code that addresses common law marriages. However, Louisiana courts have held that common law marriage may not be proven by parol evidence as the law cannot recognize what it does not define. Common law marriages are not recognized in Louisiana, even with an interstate marriage license.
In fact, in the case of In re R.O.A.M., 03-421 (La. App. 3 Cir. 10/1/03); 857 So. 2d 634, the Louisiana Third Circuit reversed a trial court’s judgment that recognized the validity of a common law marriage where the parties entered into a common law marriage in Texas, and then obtained a marriage license in Mississippi five years later before the husband died. The trial court’s finding was based on the fact that the parties had "held out themselves as husband and wife in the state of Mississippi." The Third Circuit reversed stating "Under Louisiana law, however, PCRF was not legally married in Texas. Also, the majority of the second marriage occurred prior to the validity of his first marriage being adjudicated."
Other Legal Solutions Available in Louisiana
For those who have chosen not to marry and want legal recognition of their relationship, the alternatives in Louisiana are limited. For the most part, your choices are to either continue living as husband and wife without the legal designation of marriage, or to enter into a mouthful of formalities with a domestic partner agreement, property agreement, cohabitation agreement, donation agreement, and/or a community property agreement.
The Domestic Partnership Agreement is an idea tossed around often by lawyers, but rarely used. You can transfer some property such as a house to both parties as amicable co-owners or some property to one party as the other’s "donation off marriage." If the property is in the name of just one party then keep it there, but jointly execute deeds, office functions, wills, etc. to document that you are really partners, and describe that partnership in other documents such as a marriage-like contract, or simply a cohabitation agreement. This type of formality may be especially useful where the partners have unequal economic locations, and the poorer partner wishes to protect their rights in the more valuable property.
Property agreements can be used within a domestic partnership agreement. The point of the property agreement is to create a community-like undeclared community of undivided property between the partners that was either co-earned or gifted. Typically, community property acquired during the marriage is subject to division by a court in the event of a divorce. However, there are exceptions which are not divided in a divorce, such as "property acquired by donation, legacy, or descent." This description could include property of either partner in a domestic partnership. Thus, the intent would be to create a private contract or covenant between you (the person in the domestic partnership) and your chosen partner to the effect that you agree to treat all property acquired as a community-like undivided estate.
Cohabitation agreements can be used to define the parameters of a cohabitation or domestic partnership. Simply live together and share expenses. If the relationship does not work out, you can part ways. If it doesn’t work out, there will be no equitable treatment from the court in your favor.
If the deed is not a donation, then it should be a commercial sale or an obligation to sell for value. Otherwise, the courts will assume the transaction was a gift and will most likely place a non-revocable lien on your house for an amount equal to 50% of the amount paid, which is essentially a forced gift to the other party. Don’t do it. Also, don’t give or loan your partner down payment money for a house — you may be placing much of your wealth at risk. The house is a donation, unless the deed says otherwise.
Community property agreements can be used to transfer property you own completely and solely to just one party in a manner that you intend the property to be a donation (which is critical because of the forced donation gift rules described above). Important: Transfer of real estate must be by deed, not will. Don’t forget to also draft the necessary wills for both parties. The deed should be in appropriate form with signature lines for "trustee,""donor,""donor/2nd party,""donor/1st party,""2nd party,""1st party," for each property involved. Where there are mortgages, loans, liens, etc., don’t execute these without an attorney to help you.
Keep good records of the property, including the deeds, credit agreements, payment histories, and all other related documents. At the death of one of the partners, the trustees shall execute a deed to the surviving partner or heirs, and cancel all mortgages, liens, etc. Finally, place your wills in the hands of the trustees for safe keeping.
Implications for Estate Planning and Inheritance
If a Louisiana resident is legally married in another state that recognizes common law marriage and that couple moves to Louisiana, the couple is still legally married because they were married in a jurisdiction that allows common law marriage to establish the relationship. In that case, it is important also to check the Louisiana laws regarding the property acquired during the marriage if you will be moving to Louisiana with the same couple. What matters is the status of the marital property, not the status of the relationship under the laws of the state where the parties currently reside.
If you are a Louisiana resident and you have never been legally married (even if you believe you are), your relationship is not recognized in Louisiana as a common law marriage . This lack of recognition overrides any status you believe you may have achieved in a different state. This fact is particularly important to consider for estate planning and inheritance purposes. For instance, if you are in a relationship that you believe should afford you rights of inheritance, you do not have them under Louisiana law and your partner may not be entitled to inherit upon your death. You have no rights to survivor benefits or protection by law in the event your partner is injured or dies. In the absence of an estate planning document that covers these areas, you alone must provide for your partner when you die.
Common Situations and Legal Guidance
Couples may mistakenly believe that they have established a common law marriage in Louisiana if they meet for a long period of time, if one is not legally divorced from a previous spouse or for any number of reasons. For instance, if a spouse leaves the marital home and begins living with someone else, that person may mistakenly believe that they are in a common law marriage with the spouse who left. It is critical for any individuals in this situation to understand the rules about common law marriage.
Scenario 1: Sarah and Jacob have been living together for 10 years. Jacob is still married to his first wife, and so he cannot legally marry Sarah until his divorce is finalized. Sarah believes that they may be in a common law marriage, but Jacob does not.
Legal Advice: A couple may enter into an informal marriage here without meeting the requirements if one spouse has not finalized the divorce from an earlier spouse. This requires registration of their informal marriage to each other. This has no effect on Jacob’s divorce from his wife. They must file the Certificate of Registered Domestic Partnership before they can get married. They may have opinions about their status, but under the law, they are not married. They do need to take the steps necessary to become married.
Scenario 2: Mary and John have lived together for 15 years. They had a commitment ceremony 10 years ago, but they never filed the marriage license. They have also filed joint tax returns and John lists Mary as his emergency contact at work.
Legal Advice: A domestic partnership provides some legal recognition, but there is no such thing as a common law marriage in Louisiana. It does not mean that Mary and John are married. They must take steps to establish their marriage as in another situation.
Scenario 3: Andy and Meghan have been married for four years. Meghan receives an annulment from her first husband. Andy leaves the marital home. Meghan wants to sell the house they purchased together.
Legal Advice: Andy and Meghan are not in a common law marriage. The property they purchased together is community property. If Andy signed the mortgage contract, he remains responsible for the mortgage, but Meghan is free to sell the house. If Andy will not agree to the sale, then Meghan can petition the court for division of assets.
People who have never married but they have cohabited with someone and have acquired jointly possessed property, they may need to make a claim to the court for partition and division of the property. People who simply live together but have not legally married and where they have not acquired jointly possessed property, have no legal marital rights against each other.
Additional Questions About Common Law Marriage in Louisiana
Q: Is common law marriage legal in Louisiana?
A: Louisiana does not recognize common law marriage. The concept of common law marriage means a couple can marry solely by living together and holding themselves out to the public as married without getting a marriage license or going through any formal ceremony. Every state but Louisiana abolished common law marriage in 1898.
Q: Does Louisiana recognize common law marriages from other states?
A: Louisiana will honor a common law marriage from another state if it was a valid common law marriage the state where it existed, with very limited exceptions. The exceptions are if you were a Louisiana resident and moved to an exception state with the intent to avoid the law you knew would apply in Louisiana or if you entered into the marriage in order to avoid the law of another state that would have prohibited the marriage.
Q: My grandfather once had a common law wife. Is that marriage still recognized in Louisiana even though he died?
A: If your grandfather validly established his common law marriage , it is still valid after he died. Even if the wife remarried, your grandfather’s common law marriage simply ended with the new marriage. It did not invalidate the common law marriage he had with your grandmother.
Q: My dad said he was in a common law marriage. Is he telling the truth?
A: It is difficult to know how to answer that question. A common law marriage is established by the couple’s agreement to be married and by their actions to present themselves to the public as a married couple. If your dad and his common law wife did so, then he told the truth if he said he was in a common law marriage. But, people sometimes say things they think sound good regardless of whether they are true or not.