Is There Common Law Marriage in Maryland? (No… and sort of.)

Whether a couple is married has so many social and legal implications.  So the question of whether Maryland recognizes common law marriage is an important and sometimes complex question.

Does Maryland Law Recognize Common Law Marriages?

Maryland law does not recognize common-law marriages. There are only ten states and the District of Columbia that still recognize common-law marriages.

But, and this is the key, if a valid common-law marriage has been created in a jurisdiction that recognizes common law marriages, the marriage is valid in Maryland.

So Maryland has, paradoxically, repeatedly recognized out-of-state marriages that would have been invalid in Maryland.  Why does Maryland not allow its own common law marriages yet recognizes the marriages in other jurisdictions?  The answer is confusing. But Maryland courts have long appreciated the social importance of both fostering stable families and protecting children in the event of a divorce.

But Maryland courts make an honest call based on the law of the jurisdiction that recognizes common law. So if the parties only lived together for single several-day visit but it would have been recognized in that state as a common-law marriage, Maryland courts will call it a common-law marriage.

Because common-law marriages are recognized in Maryland if valid in another jurisdiction, let’s look at some of our big neighbors:

Pennsylvania Common Law Marriages

Pennsylvania courts allow common-law marriages that formed before 2005.  But they don’t like them.  So they place a “heavy burden” to establish a common-law marriage.  Why? Because the question of whether such marriage exists is a “fruitful source of perjury and fraud.”  Therefore, they should be tolerated [but] not encouraged…”

District of Columbia Common Law Marriages

Establishing a common law marriage in the District of Columbia requires (1) an express mutual agreement to be husband and wife, which must be in words of the present tense; (2) followed by cohabitation.

Maryland courts have interpreted the law of the District of Columbia to be that when “one of the parties, although asserting the existence of a common-law marriage, denies or fails to say there was mutual consent or agreement, mere cohabitation, even though followed by reputation, will not justify an inference of mutual agreement or consent.”  That said, Washington, D.C. is one of the easiest states in the country to give recognition to a common-law marriage.

Virginia Common Law Marriage Law

Virginia is in the same boat as Maryland. Virginia similarly does not allow common law but recognizes common-law marriages in other jurisdictions.

Key Maryland Common Law Marriage Opinion

  • Blaw-Knox Const. Equipment Co. v. Morris, 88 Md. App. 655, 596 A.2d 679 (1991).  A couple held themselves out as husband and wife to Pennsylvania friends and relatives and spend two nights together in a hotel.  The court found that the parties satisfied the requirements of a Pennsylvania common law marriage although they were Maryland residents.
  • Laccetti v. Laccetti, 245 Md. 97 (1967). The Maryland Court of Appeals affirmed a divorce of a common law marriage entered in Washington, D.C.  The Maryland high court ruled that the parties’ marriage was valid in Maryland under the common law doctrine of marriage recognition.

Are There Any Common Law Marriages Maryland Won't Recognize?

There are two exceptions to Maryland’s recognition of marriages that occurred in another state or county 1) the type or circumstances of the marriage must not be prohibited expressly by Maryland’s Legislature, and (2) the marriage cannot be repugnant to Maryland public policy. But Maryland has never refused to recognize a marriage on these exceptions.

What Is Common Law Marriage?

I’m putting this in at the end because I think most people understand the term. There are many different historical definitions of marriage. Some couples need a church wedding in their religion to feel married. At the other extreme, some feel like they are married because they act married. Forty states say the latter is not a marriage. But ten states sometimes allow recognize marriages for people who call themselves married who never obtained a license or participated in a ceremony.

There is a rich and interesting history of marriages without ceremonies or licenses even among religious people.  In 1563, the Council of Trent passed the Decretum de Reformatione Matrimonni. The decree said that a marriage invalid unless performed before a priest.  This began the process of requiring technical requirements of marriage.