What Exactly Is Common Law Marriage?
Common law marriage is a legal union that does not require a formal ceremony to be recognized by the state. There are many misconceptions about what common law marriage really is and is not—even amongst insurance companies and federal agencies. This article is an effort to debunk some of these myths and unveil the real story about common law marriage in Washington State.
While the first common law marriages were established in Europe centuries ago, in the United States, common law marriage has been around since the founding of our country. For example, George Washington and Martha Custis were technically married under common law prior to the Constitutional Convention. In fact, common law marriage was customary prior to 1925 in Washington State. The first compelling reasoning for granting common law marriage was a shortage of eligible marriage officiants. The solution was to evaluate whether the parties intended to be married, which New York required as early as 1801. Washington formally recognized common law marriage in 1890 and abolished it in 1913. The first statute providing for a common law marriage exception to the then-required formalities did not take effect until 1905. However , a 1915 decision of the California Supreme Court held that the evidence referred to in Sec. 530 of the Civil Code was actually more stringent than the evidence for traditional marriage. In Re: Marriage of Murphy, 27 Cal. App. 2d 427 (Cal. App. 1938). Under Washington law, a marriage was recognized under common law unless the parties were able to meet the statutory requirements for getting married. In 1925, Washington eliminated its common law marriage statute and decided to subject all parties seeking to get married to the same requirements. Washington now requires an application for marriage license issued by the county auditor, personal appearance before an officiant, and completion of a record of marriage license. It also requires an age minimum of 18 years or parental consent if either party is underage. In Washington, common law marriage is prohibited, but Washington will recognize a common law marriage created in another state, if that state still recognizes common law marriages. At least 10 states continue to recognize common law marriages today.
Is Common Law Marriage Recognized in Washington State?
Common law marriage is an arrangement where a couple is considered legally married without having been formally registered or solemnized their relationship. The requirements or stipulations for common law marriage vary between states, as many jurisdictions do not recognize it as valid or legitimate under the law. For example, Washington State does not recognize common law marriage as a status, as the law in Washington has not been amended to encompass nontraditional methods of cohabitation, such as common law marriage.
Even though Washington State does not recognize common law marriage as a status, a couple who have lived together in a cohabiting relationship may still incur the same legal rights and obligations as a couple in a traditional marriage. Under the law, however, Washington State does not automatically presume that the couple has a mutual intent to be married; rather, their actions, behaviors and circumstances must be consistent with the forming of a marital relationship.
Specifically for purposes of equitable distribution, Washington law requires that the couple have both the capacity, and intent, to be married in order for Washington state law to treat them as if they have a formal marital relationship. To be sure, Washington law makes no presumption that a couple is married if they cohabitate while holding themselves out to the public as a married couple. The Court will consider certain factors in determining whether the couple has the capacity and intent necessary to be treated as a married couple, however, such as whether the parties are of legal age and meet other legal requirements to marry; whether the relationship has a degree of permanency; whether the parties hold themselves out to be a married couple; whether the parties share conjugal relations, or intimacies; whether the parties jointly obligate themselves as doing so would inure to the benefit, or be to the prejudice of, one or another of the parties; and the length of time that the parties have lived together and the circumstances surrounding the dissolution of the relationship.
In cases where a cohabitant relationship does not raise equitable distribution issues (i.e. property predating the relationship, or no major change, advancement or enhancement in value of property during the relationship), though there might be a finding that the couple was married under the terms of a common law concept, Washington State will not recognize the relationship in that light as Washington does not even recognize the concept of common law marriage, and does not treat a cohabiting relationship synonymous with marriage for purposes of equitable distribution, alimony, inheritance and child support.
What is clear, though, is that Washington law does not condone the taking of advantages or inequities of having a "just add water", "no fault" divorce when a couple has been married for a very short period of time. It recognizes that those circumstances do trigger inequities when viewed through the lens of equitable distribution; however, Washington does so through pre-existing law, and does not create a separate cause of action based upon the theory of common law marriage.
Washington State Alternatives to Common Law Marriage
There are a myriad of reasons why cohabiting couples may not wish to, or cannot, get married, even though it would confer certain legal benefits for them. For those who want the legal formalities and protections of marriage, without the legalities of marriage, there are other options in Washington State that offer varying degrees of protection. Domestic partnerships and cohabitation agreements are the two main alternatives for couples.
Washington has had domestic partnerships since 2007 and currently offers two types: domestic partnerships for registered domestic partners with less than two children and domestic partnerships for same sex cohabitating partners, or those over the age of 62. The requirements for domestic partnership include: Once a domestic partnership is established, a partner has the same rights and responsibilities as a spouse under Washington State marital laws. When the domestic partnership is dissolved, a division of community property assets may take place, spousal maintenance will be available, and if the partnership ends for any reason other than death, a court may award a domestic partner a portion of the retirements and pension benefits of the other partner. If one or both of the partners do not wish to avail themselves of these laws, Washington State has a provision for a couple to draft an enforceable cohabitation agreement to address some or all of the legal consequences of ending a domestic partnership, or a marriage. The provisions of the agreement are typically based on individual preferences, but may include the following: Although cohabitation agreements have no legal recognition in the domestic partnership or statutory marriage context, courts will enforce them based on the parties’ intentions and the specific terms of the contract. Washington courts will NOT use cohabitation agreements to classify or treat property obtained during the relationship as community property. Therefore, if a couple is considering separating or dissolving a domestic partnership or marriage, establishing a clearly written, comprehensive cohabitation agreement may protect the assets and best interests of both parties.
Rights of Unmarried People Legally in Washington
The Law of meretricious relationships in Washington is evolving, but for now it at least recognizes that unmarried couples generally do not have the legal rights of married couples with respect to property division on separation or dissolution of marriage. Courts have struggled, however, to recognize the contributions and rights of unmarried partners in similar fashion to a property division in a dissolution of marriage. Because the law of meretricious relationships is still evolving, the results must be viewed on a case-by-case basis. The simple rule of thumb is that unmarried partners do not have the same rights to property division as married partners. In general, there are three categories of rights for unmarried partners: a right of support, a right to child custody or a right to child support.
In 1990, the Washington State Supreme Court ruled that a married partner’s right to support includes other family members. The Court, in In re Marriage of Harle, 114 Wn. 2d 464 (1990), assumes that a partner to a meretricious relationship has a duty of support to dependents of the relationship, but assumes that there is no assumption to divide property. In State ex rel. Goodwin v. O’Brien, 118 Wash.2d 32, 40 (1992), the court also reviewed the law of meretricious couples, but held that the right of support should be based on injustice, equity and justice. The inquiry is fact-specific and the result will be different in each case. The Washington Courts require a finding of injustice before a meretricious partner has a right of support; however , in an effort to avoid constitutional scrutiny, the Courts have gradually moved toward a standard similar to a right of support for spouses, based upon need.
The Washington Courts have had a long history in deciding child support matters, where the parties were unmarried parents. Many of the forms used in Family Court presume that the parents were married. The rules for calculating child support in Washington assume that the parents were married.
Under Washington law, when the parents are unmarried, RCW 26.09.100 provides for child custody determinations, which are controlled by the best interests of the child. The presumptions for custody determinations are: While the law has evolved to some extent over the years, what we often forget is that it has only been twenty five years since the Washington Supreme Court held that a partner to a meretricius relationship does not acquire rights to property acquired during the relationship. Although the law has evolved somewhat, it is still very much an evolving area of law. What we see is that the Courts are still very uneasy at determining the property division rights of unmarried partners. With the next economic downturn, however, it is very likely that the law will become biased in the opposite way, and that the rights of unmarried partners will become more of a property division consideration.
Ways to Protect Your Formal Relationship Legally in Washington
While Washington State does not recognize common law marriage, steps can be taken to legally protect your relationship. Two joint owners on a house can ensure the surviving spouse gets to stay in that home. For example, someone’s aunt has lived with and been in a committed relationship with someone for years. They never tied the knot. Caution, however, was urged by her lawyer, who advised her to put the title to her house in both their names to protect the assets should the relationship fail. A while later, though, he died in a car accident. Because their relationship was never a formal marriage, she was not guaranteed to inherit his estate, including his half of a house that they had shared. They had jointly purchased it, but his salary had paid for the bulk of it. His family could have taken the house and business from her unless this protection had been put in place.
There is also a nonmarriage agreement that you can draft to govern your joint affairs and ensure all parties are treated equitably should the romantic or business relationship end. This can spell out how much of the house each pays for if they are joint owners, and what to do if they break up. If you have children together, you should also create a parenting plan for how to handle visitation, education, and expenses. While marriage becomes the top level of commitment, you may still regulate your matters according to your own boundaries and preferences.
Cohabitation agreements can be entered into instead. Washington courts will enforce them if they are fair and there is nothing illegal or against public policy in them. You have flexibility in that you can create whatever workarounds you need in order to improve your rights over time. While the court will not enforce a few everyday chores, a division of property value will be upheld. The only requirement is that the contract should be in writing and signed by both parties, and the court will recognize it as valid.
Final Thoughts: Relationship Legalities in Washington
"Better to enter marriage or other legal relationship knowing your rights than to be ignorant of your options at the time of disputes", advises Seattle Lawyer Joanna Keeley. If you seek counsel early in your relationship with an attorney knowledgeable in the area, counsel can advise you on how best to protect your rights and interests. Sometimes, the most effective protection can come by knowing you have a right to a share of property acquired during the relationship. Once you are aware of the law, you and your partner can choose to divide property equally from the outset of the relationship rather than fighting over it later. When couples obtain in-depth, early legal guidance, lawyers can help you achieve a balance of costs with the still-achievable goal of future peace .
In summary, Washington State no longer recognizes common law marriage, but Washingtonian couples could have obtained a legal union through two different avenues, including:
• Marriage: In accordance with RCW 26.04.010, any persons, of sufficient age who are not married to someone else, may marry one another, and
• Registered Domestic Partnership: In accordance with RCW 26.60.020, as amended on June 30, 2014, Washington State recognizes registered domestic partners in a committed intimate relationship that live together.
If you and your partner believe that you could fall under a Washington State law per the above broad definitions, to protect your interests, parties may want to consult with a lawyer to obtain legal guidance as to what you may be entitled.