Whether a couple is married has so many social and legal implications. So 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. Only ten states and the District of Columbia 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.
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What Was the Purpose of Common Law Marriages, Anyway?
Historically, the primary goal of the presumption was to establish the validity of marriages when there was no direct evidence available. Easy today, hard hundreds of years ago.
In the late 1800s, proving foreign marriages was often challenging due to high travel costs, dangerous journeys, the lack of administrative or bureaucratic institutions, difficulty obtaining legal documentation of marriages from foreign jurisdictions, or the death of the parties or witnesses involved. The court makes this clear in Hanon, 63 Md. at 128 (1885):
“Our population is largely composed of foreign-born citizens, who were married abroad, and of native citizens removed from the States in which they were married. To require direct proof of the celebration and regularity of the marriage rite would practically often rob suffering wives of the humane protection designed by the law….”
We still have debates today when the parties are married in underdeveloped countries with sparse records. But in most Maryland marriages, these are not issues.
Maryland Recognizes Common Law Marriages in Other Jurisdictions?
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 fostering stable families and protecting children during 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 a 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.
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” on establishing 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 country’s easiest states to recognize a common-law marriage.
Virginia Common Law Marriage Law
In Virginia, common law marriage is not recognized by law. Merely residing together in the same household does not create legal responsibilities or duties between two individuals, except when expressly agreed upon. Any agreements concerning shared financial obligations and jointly-owned property are enforced as per contract law. The length of cohabitation, the nature of a romantic or sexual relationship, or even engagement is irrelevant in Virginia. But Virginia does, as it is required to, recognize common-law marriages in other jurisdictions.
Delaware and New Jersey Common Law Marriage
Similarly, Delaware and New Jersey do not recognize common law marriage. So couples who live together in New Jersey or Delaware without obtaining a formal marriage license are not considered legally married, regardless of how long they have cohabitated or if they present themselves as a married couple in social settings. (New Jersey actually does recognize common law marriage entered into before December 1, 1939. But we don’t have a lot of those!)
Like other states, if you entered into a common-law marriage in a state that does recognize such marriages and then moved to New Jersey or Delaware, the state might recognize your marriage as valid.
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 spent 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. Conversely, some feel like they are married because they act married. Forty states say the latter is not a marriage. But ten states sometimes allow recognized marriages for people who call themselves married who never obtained a license or participated in a ceremony.
How do you get to a common-law marriage in those states? A common law marriage is established when two individuals live together as a married couple, intending to enter into a marriage, and hold themselves out to the public as a married couple. There is no set period that a couple must live together to establish a common law marriage. Once a common law marriage is established, the couple has the same legal rights and obligations as those who obtained a marriage license and participated in a formal wedding 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 was invalid unless performed before a priest. This began the process of requiring technical requirements of marriage.
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