Duhaime's Law Dictionary


Common Law Marriage Definition:

An ancient form of marriage, by consent and consummation but otherwise recognized in the common law.

Related Terms: Marriage, Family, Common Law Relationship

Almost all jurisdictions now have statutes which set out specific conditions to a valid marriage, usually with a basic form of ceremony.

But this was not always the case as the common law recognized consensual marriage which formed not by ceremony but merely consent and consummation (sexual intercourse). Hence, the term common law marriage.

Today, the term common law marriage is often misused to refer to a common law relationship where by the mere fact of cohabitation, man and women and, in some jurisdictions, two person of the same sex but in love with each other and engaged in a pattern of intimacy, acquire certain rights of marriage.

In the 1885 decision Teter v. Teter, the Supreme Court of Indiana held:

"The intention to assume the relation of husband and wife, attended by pure and just motives, and accompanied by an open acknowledgment of that relation, is sufficient to constitute a marriage....

"Whatever the form of the ceremony, or even if all ceremony was dispensed with, if the parties agreed presently to take each other for husband and wife, and from that time lived together professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage."

Consider also these words of Justice Perkins in the 1851 case of Trimble:

"The common law requires no particular ceremony to the valid celebration of marriage. The consent of the parties is all that is necessary, and as marriage is said to be a contract jure gentiun, that consent is all that is needful by natural or public law. If the contract be made per verba de presenti, or if made per verba de futuro, and followed by consummation, it amounts to a valid marriage, and which the parties cannot dissolve if otherwise competent; it is not necessary that a clergyman should be present to give validity to the marriage; the consent of the parties may be declared before a magistrate, or simply before witnesses, or subsequently confessed or acknowledged, or the marriage may even be inferred from continual cohabitation and reputation as husband and wife, except in cases of civil actions for adultery or public prosecutions for bigamy."

 As recently as 1942, in Norrell, the court held:

"A valid marriage relationship may be created without civil ceremony....

"Once a common-law marriage is established, it cannot be dissolved or renounced by
the words, actions, will, or intention of either or both of the parties."

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