Simone Lawson
The concept of living together as husband and wife is often associated with the idea of a common-law marriage, where a couple lives together and holds themselves out to the world as married without legally registering their union. While the specifics vary by location, common-law marriages are currently recognized in some form in a minority of U.S. states, including Colorado, Iowa, Kansas, New Hampshire, Oklahoma, and Texas. In these places, factors such as the length of cohabitation, mutual assumption of spousal rights and responsibilities, and public recognition of the relationship as a marriage can contribute to a couple being considered legally married under common law. However, it's important to note that simply living together does not automatically establish a common-law marriage, and specific requirements must be met for such a marriage to be legally valid.
Characteristics of what constitutes living together as husband and wife
| Characteristics | Values |
|---|---|
| Cohabitation | Living together for a period of time, with no statutory requirement for the length of time. |
| Legal right or "capacity" to marry | Both partners must have the legal right to marry, be at least 18 years old, and not already be married to other people. |
| Intent | Both partners must intend to be married, and refer to each other as "husband", "wife", or "spouse" in conversation and in documents. |
| Common-law marriage | Only eight states in the U.S. (plus Washington, D.C.) allow new common-law marriages. Some other states recognize these marriages if they existed before a certain date. |
| Legal agreement | Couples can formalize their status with a legal agreement, such as a cohabitation contract or living together agreement. |
| Name change | Couples can choose to use the same family name, but it is not legally required. |
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What You'll Learn
Legal rights and differences between married and cohabiting couples
Cohabitation refers to two individuals living together in a long-term relationship without being married or in a civil partnership. While cohabitation offers benefits such as financial savings and flexibility, it is crucial for couples choosing this path to be aware of the potential legal and financial implications.
Rights and Differences
Firstly, there is no legal definition of cohabitation or living together in England and Wales. Secondly, cohabiting couples do not have the same legal rights and protections as married couples or civil partners. This has a bearing on important life events, including buying property, having children, and inheritance.
Property
Cohabiting couples do not have automatic rights to each other's assets, income, or pensions. The division of property is determined by land law or trust law, which may not take into account the contributions of both partners during the relationship. Married couples, on the other hand, can transfer assets to each other free from capital gains tax and inherit assets from their spouse free from inheritance tax.
Inheritance
Cohabiting couples do not have automatic inheritance rights. Without a valid will, the surviving partner may not inherit any part of the deceased partner's estate. However, there may be provisions under the Inheritance (Provision for Family and Dependants) Act 1975 that allow a surviving partner to claim the estate if they were financially dependent on the deceased.
Financial Support
After separation, cohabiting couples are not legally obliged to provide financial support to each other, unlike married partners who can be obliged to do so in certain circumstances.
Matrimonial Home Rights
Unmarried partners do not have an automatic right to stay in accommodation owned by the other. In contrast, each married partner can stay in the matrimonial home until the divorce process concludes, unless a court order is made suspending their occupancy rights.
Joint Accounts
If a married couple has a joint bank account, the money is owned jointly as long as they're married. It doesn't matter who put the money into the account. For cohabiting couples, if there is a joint account, then both partners have access to the account, regardless of whether only one of them pays into it.
Children
Both married and cohabiting couples can apply to adopt a child jointly. The child of unmarried and married parents has a legal right to inherit from both legal parents and the families of both parents. The rules about the nationality of children depend on the parents' immigration status as well as whether the parents are married or cohabiting.
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Common-law marriage and cohabitation
Cohabitation, or living together as a couple without being married, is generally associated with fewer legal rights compared to married individuals. While there is no legal definition of cohabitation, couples who live together are sometimes referred to as common-law partners. It is important to note that cohabitation alone does not establish a common-law marriage, and certain requirements must be met for a couple to be considered common-law married.
Common-law marriage is recognised in only a few states in the US, such as Colorado, Iowa, Kansas, Oklahoma, Texas, and partially in some other states. It is not recognised in the UK, where the Clandestine Marriages Act of 1753 ended common-law marriages in England and Wales, requiring marriages to be conducted by the Church of England.
To be considered a common-law marriage, both partners must have the legal capacity to marry, meaning they must be at least 18 years old, of sound mind, and not already married to someone else. Additionally, there must be an intention to be married, and the couple must present themselves as married to family, friends, and the community. This can include using terms like "husband," "wife," or "spouse" when referring to each other, both informally and in documents.
The length of time a couple lives together is not a determining factor in common-law marriage, contrary to popular belief. While some states may consider the duration of cohabitation, there is no statutory requirement, and each case is evaluated individually. However, a living together agreement, or a cohabitation agreement, can be established to formalise certain aspects of a couple's status if they wish to avoid being considered common-law married.
In certain states, common-law marriage may be recognised for specific purposes, such as in New Hampshire, where it is recognised for inheriting property from a deceased partner if the couple lived together as a married couple for at least three years until one of them passed away.
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Using the same family name
In some jurisdictions, common-law marriage is recognised, while in others, such as England and Wales, it is not. Even in jurisdictions where common-law marriage is recognised, the requirements vary. For example, in New Hampshire, common-law marriage is only recognised for inheritance purposes if the couple lived together as a married couple for at least three years until one of them died.
The use of the same family name can be considered evidence of a common-law marriage in some jurisdictions. However, it is essential to understand that common-law marriage typically requires more than just cohabitation and sharing a last name. Both partners must have the legal capacity to marry, which usually means being at least 18 years old and of sound mind, and they cannot already be married to other people. Additionally, both partners must intend to be married and hold themselves out as a married couple to friends, family, and the public.
If you live in a jurisdiction that recognises common-law marriage and wish to avoid any potential complications, it is advisable to sign a living together or cohabitation agreement. This agreement can help clarify your intentions and protect your rights, especially if you use the same last name or mix your property together.
It is worth noting that the legal rights of married and cohabiting couples may differ, and these differences can include financial matters, responsibility for children, and housing. Therefore, it is essential to understand the specific laws and requirements of your jurisdiction regarding common-law marriage and the legal implications of using the same family name.
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Witness requirements in criminal cases
Witnesses are a crucial component of criminal cases, as they provide testimony that helps determine the guilt or innocence of the accused. A witness is anyone who has knowledge of the facts of a case and can answer questions about those facts in court. This includes people who witnessed or were victims of a crime, as well as those with other relevant information.
There are several types of witnesses in criminal cases. Fact witnesses, also known as eyewitnesses, are people who testify about the facts of the case or what they saw. Expert witnesses provide specialised knowledge or opinions, such as medical information or accident reconstruction. Character witnesses, on the other hand, speak to the defendant's character and reputation. They do not need special qualifications but should know the defendant well enough to provide honest and relevant testimony.
Before a trial, prosecutors and defence attorneys will speak to potential witnesses to gather information and prepare them for testifying. Witnesses should be honest and only testify about what they know. They must also tell the truth when testifying, as lying under oath is considered perjury and can result in a jail sentence.
In some cases, witnesses may be subpoenaed, which is a formal court order requiring their appearance in court. A subpoena may also instruct a witness to bring certain documents or items. Witnesses who fail to comply with a subpoena can be arrested and brought to court involuntarily. It is important to note that witnesses are generally not permitted to watch court proceedings before testifying to ensure their testimony is based solely on their own knowledge.
Being a witness in a criminal case can be stressful, and witnesses may experience a range of emotions. It is important to be polite and calm during testimony, as refusing to answer a judge-approved question can result in contempt of court. Witnesses have certain rights, such as the right to be treated with fairness and respect, and employers must allow time off for court appearances without penalty. Additionally, witnesses may be eligible for expense assistance for their court appearances.
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Legal agreements for cohabiting couples
Cohabitation, or living together as a couple without being married, generally results in fewer legal rights than a legally recognised marriage. In the UK, couples who live together are sometimes called common-law partners, but common-law marriage is a myth and does not confer the same rights as a legal marriage or civil partnership.
In the United States, eight states plus Washington, D.C., allow new common-law marriages. Other states may recognise common-law marriages formed before a certain date or for a limited purpose, and all states should recognise common-law marriages established in other states. However, cohabiting couples in the US can still be considered unmarried and may need a cohabitation agreement.
A cohabitation agreement is a legal document that can be drawn up at any point during a relationship to outline essential facts regarding a couple's ownership of assets, financial responsibilities, and arrangements for if the relationship breaks down. This can include how children will be supported, and how shared assets like bank accounts, debts, vehicles, and pets will be handled. Cohabitation agreements can save time and money in the event of a separation by avoiding court proceedings to dispute asset ownership.
To be valid, a cohabitation agreement must be entered into freely and voluntarily and set out in the form of a deed. It should be periodically reviewed and amended in line with major life events, such as buying a property, having a child, or a significant change in financial status. While it may feel unromantic, a cohabitation agreement can provide certainty and peace of mind and help to avoid arguments and worries that might cause difficulties in the future.
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Frequently asked questions
Common-law marriage is a marriage that is considered valid under state law, but is not officially recorded or recognised by the government. Common-law marriage is only recognised in a few states in the US, such as Colorado, Iowa, Kansas, Oklahoma and Texas.
There is no statutory requirement for the length of time a couple needs to live together to be considered common-law married. However, generally, the longer a couple lives together, the stronger their case is. Other factors that can demonstrate your intention to be in a common-law marriage include presenting yourselves as a married couple to friends, family and the community, and referring to each other as "husband", "wife" or "spouse".
Generally speaking, you will have fewer rights if you're living together than if you're married. Couples who live together are sometimes called common-law partners. You might be able to formalise your status by drawing up a legal agreement called a cohabitation contract or living together agreement.
A cohabitation agreement is a legal agreement that can be drawn up by couples who live together and are not married. It can be particularly important if you use the same last name, mix your property together, or take any other actions that could later be considered evidence of establishing a common-law marriage.
If you are common-law married, what rights you gain depends on your state's common-law marriage laws. For example, in New Hampshire, common-law marriage is only recognised for the purpose of inheriting property from a deceased partner.
