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Common-Law Marriage and the Commonwealth: What You Need to Know

By: Kevin McCandlish

[12.16.2020] When a couple has lived together for several years, there can be a steady increase in pressure to tie the knot. Meanwhile, a couple can become so familiar with each other’s families that they essentially become one. When meeting strangers or introducing one another to new acquaintances for the first time, it can also become commonplace to refer to each other as better halves, partners, significant others, or even spouses.

Currently, only eight states have legislation that explicitly allows for common-law marriage in some manner or within some time frame based upon the year in which the couple establishes the fulfillment of ascribed factors: Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. The Commonwealth of Virginia has notably passed legislation constricting the definition of marriage in recent memory, which disallows relationships akin to, but separate from, marriage from claiming the attendant benefits, legal rights, and causes of action provided to married couples. Therefore, no marital rights will issue to couples who have always resided within Virginia and now seek to assert causes of action under the doctrine of common-law marriage to secure support or a particular allocation of resources.

However, Virginia does recognize common-law marriages that have been fully formed and formally recognized in other states, in the event that each legal requirement of that prior state’s common-law marriage statute was met prior to the couple’s arrival in the Commonwealth; therefore, couples coming to Virginia from any one of the eight states listed above must diligently work to understand how to formally dissolve their relationship, and how to exercise the rights inherent in common-law marriage. A formal divorce will be required to complete the couple’s separation, and a court of law will determine the parties’ relative rights.

If a couple has always resided in the Commonwealth and separates prior to a formal marriage ceremony, the processes and protections afforded to married couples will likely be unavailable. Each party must resort to and rely upon other suits of law, such as property recovery actions. However, if a couple has satisfied the applicable criteria for a common-law marriage in a state before arriving in Virginia, the Commonwealth will recognize their common-law marriage. The legal benefits, obligations, and responsibilities commensurate with marriage will be in effect—any subsequent suit or legal action will require the attention, analysis, and savvy demanded of a traditional marriage dissolution.

To learn more, contact WhitbeckBennett by calling 800-516-3964 or emailing at clientservices@wblaws.com.

Related: Family Law