What is a common law marriage?
Common law marriage is a form of civil union where a couple is considered married without an official marriage ceremony or a license. This legal concept is only recognized in some states and countries – primarily ones that were once governed by British law as opposed to French law – although its details and application can differ widely. The basic idea is that a common law marriage is formed by a couple that has made a public commitment to be together, has cohabitated and has presented themselves to the community as a married couple. Addressing how common law marriages are created can be critical to matters such as divorce, and the same can be said for other types of relationships such as domestic partnerships, civil unions and other cohabitation arrangements .
In Tennessee, the idea of common law marriage is primarily one that affects how marital assets and properties are divided during divorce. As with most states that recognize the concept of common law marriage, it requires that the couple involved make a public commitment to be together, live together and present themselves as a married couple to the community around them. While a sizable number of states in the U.S. do recognize common law marriage, as many as 15 others have either rejected the idea altogether or have placed very specific limits on its application. Tennessee law falls primarily in the latter category, stating that common law marriage is valid only for marriage agreements formed prior to 1/1/2017. Any common law marriage created after this date is not considered valid in Tennessee.
Is common law marriage legal in the state of Tennessee?
Currently, common law marriage is not recognized by the state of Tennessee. The last Tennessee statute on the subject, passed in 1871, abolished it. Specifically it passed the below act: Courts to take no cognizance of common law marriages, except upon evidence of legal marriage. No court in this state shall take cognizance of a common law marriage, unless it be proved that the parties have been married by a minister of the gospel, or some other person having authority to solemnize the marriage about to be into the minutes of the court.
This law is still in effect and has been interpreted to apply to judges as well as juries. This is in contrast to some states like Texas which has been known to recognize common law marriage in some circumstances. The current trend for states is to do away with common law marriage. For example, New Hampshire eliminated it in 1980 and that law became fully effective in 1989. On the other hand, common law marriage is still recognized in Alabama, Kansas, Montana, Rhode Island, South Carolina and Utah. It’s worth noting that if you are married under the common law in a state where that is allowed, Tennessee will recognize you as married.
Does Tennessee honor common law marriages from other states?
Tennessee does not recognize common law marriages whereby the parties reach an agreement to marry and hold themselves out as spouses. However, there are limited circumstances where a common law marriage with a valid existence in another state will be given effect in Tennessee. A marriage formed in another state will be recognized in Tennessee if it was validly formed in the state where the marriage occurred. Thus, if the parties’ common law marriage was created in a state that recognizes common law marriages (such as Georgia, Idaho, Iowa, Montana, Ohio, Kansas, Rhode Island, South Carolina, and the District of Columbia), and all of the essential elements of a marriage are satisfied, then that marriage will be given full faith and credit here in Tennessee.
Common law marriage legal implications and benefits
Although there is a public perception that common law status provides legal recognition of the union, the reality is that common law marriages create no enforceable rights or obligations under Tennessee state law. For the purposes of Tennessee law, those relationships that fall under the category of "common law" are not legal marriages. Tennessee public policy does not protect common law relationships, and the courts have declined to subject such relationships to legal obligations. Waller v. Waller, 73 S.W.3d 909, 915 (Tenn. Ct. App. 2001)
As a result of this lack of legal recognition, parties who believe they are common law married cannot benefit from property rights created by marriage and cannot make claims for equitable distribution or division of debts in court. Furthermore, ex-spouses and children born out of wedlock of parties alleging a common law marriage may be denied inheritance and support rights including alimony and child support.
At a minimum, the couple must agree to make one another an heir, whether or not there is intent to marry. Clarke v. Clarke, 379 S.W.2d 248 (Tenn. 1964). If parties were to separate following intent to make one another an heir, the spouse with a superior claim to the deceased’s estate would inherit the property, not the surviving spouse. Clarke, 379 S.W.2d 248 (Tenn. 1964) (as amended on denial of rehearing Oct. 5, 1964)
When it appears the relationship is only the result of an agreement to become an heir, but there is no clear desire to be married, the issue becomes difficult to establish, and courts may reject the claim that a common law marriage existed. Clarke v. Clarke, 379 S.W.2d 248 (Tenn. 1964) (a 1963 case where the unilateral claim of the surviving widow to the home resulted in failure of proof of a contract to marry). Essentially, the requirement of a marriage agreement also satisfy the legal expectation that the relationship will be permanent.
If the parties do enter into a formal marriage contract, they acquire the rights of a legally married couple. Particularly when it is not the first marriage, the intention to marry may be enough to overcome the challenge of intent necessary for a court to legally recognize the marriage. To establish a common law relationship and obtain the benefits of a marriage, the parties must first have made an express agreement to marry; and second, the couple must live together after the agreement to marry.
Are there alternatives to a common law marriage in Tennessee?
Although the absence of ceremonial marriage does not always add up to common law marriage, there are several other options that may be suitable for those wanting freer relationships. Not every state recognizes these alternatives, however, and the laws governing them will depend on where the couple resides.
Civil union: This legal relationship is available primarily to same-sex couples. Civil unions afford the parties a "domestic partnership" status that provides many of the same benefits as a traditional marriage. Because of the historic treatment of same-sex relationships under the law, LGBT people often have to pursue alternate means of insurance coverage, tax benefits and other opportunities – until federal marriage equality was achieved, this has been true in Tennessee. Civil unions offer an avenue that unites these people in ways that other, at times outdated, means have not. Before proceeding, however, it is important to know that they are not equivalent to a marriage, do not override marriage laws, and cannot protect a civil union in the event of a prior relationship in another state.
Domestic partnership agreement: Agreements of this type are typically established for estate planning purposes. The cohabiting parties create a legally binding contract that stipulates how their property, both real and personal, will be divided in the event of separation or death. Such an agreement does not, however, confer legal rights on either party, and without a valid marriage, parties may not have the same entitlements as married couples, including insurance coverage, life benefits , and inheritance. Domestic partnership agreements are not an alternative to marriage; they are a supplement for unmarried spouses that may increase or decrease property partitions, expenses, and debts during the relationship or at its conclusion.
Cohabitation agreement: A cohabitation agreement between unmarried cohabiting individuals works much like a pre- or post-marital settlement, but without reference to marital assets or liabilities. A cohabitation agreement may specify property and debt provisions for the benefit of either party, such as payment for private schooling, home care or rent. Furthermore, because Tennessee bills itself as a "common law" state, many of these agreements may be ambiguous, and exceptionally difficult to enforce as a matter of public policy. However, if this type of alternative to common law marriage is properly formulated and signed, a cohabitation agreement is recognized in Tennessee courts.
Right of inheritance: Legal title, status of ownership, and disposition of tangible and intangible property upon death has long been established by the laws of the state where the decedent resides. In Tennessee, Tennessee law controls, and there is no right of inheritance by a common-law spouse. Similarly, unmarried couples generally have no rights of intestate succession, and unless specifically designated by will or otherwise, they will not inherit the estate. Tennessee has adopted the Uniform Rights of the Terminated Spouse Act, where propertied are allocated to the surviving "spouse." Tennessee law allows a divorced person to void the ex-spouse’s prior designation in any and all testimonials and insurance policies, except in cases where the former spouse is the ad litem trustee for a minor child.
How to protect yourself in a relationship other than through common law marriage
Without legal recognition of common law marriage in Tennessee, it is important for couples to have a cohabitation agreement that outlines the rights and obligations of each party. This contract can address a range of issues, such as property ownership and debt responsibility, spousal support, parenting plans, and even end-of-life decisions. Such an agreement may help clarify expectations and serve as a type of precaution in the event the relationship does not last.
Although this type of agreement may be beneficial, a written contract cannot guarantee rights or entitlements in divorce. In Tennessee, many property rights for unmarried couples are determined based on who holds title to property and who paid for property during the relationship. For example, each party may have an equitable interest in property acquired during the relationship if each party paid one-half of the purchase price or if the parties owned property as joint tenants with rights of survivorship. Because Tennessee inherited property laws do not extend to unmarried couples, one partner would not inherit the deceased partner’s property unless expressly named in a will.
Powers of attorney, advance care directive documents, and wills may all help protect a person’s interests in the absence of common law marriage in Tennessee. For example, a durable power of attorney authorizes one person to act for another in a legal capacity. A person who is so authorized can make financial decisions regarding property and assets. An advanced care directive allows a person to write instructions about medical care and designate someone to make decisions for them in the event of incapacity. A will ensures that property goes to a designated person upon death.
Although steps can be taken to protect rights and interests in the absence of common law marriage, it is important for unmarried couples to understand their limited rights in the event of a separation, death, or incapacity of a partner.
Conclusion: common law implications in Tennessee
When it comes to navigating relationships in Tennessee, the concept of common law marriage is an important one to understand, especially for couples who have not formally married in a traditional ceremony. This post has explored the legal status of common law marriage in the state, as well as the requirements for such designations to be recognized by the law. We’ve also discussed how common law marriages can impact legal matters like divorce, child custody and property rights in Tennessee. It’s clear that individuals involved in a cohabiting relationship should take the time to understand the impact that a common law marriage designation may have on them, as well as on their relationships . In some cases, this means going a step further than simply cohabitating to make things formal, especially when individuals recognize that a common law marriage is a real possibility based on other factors present in their lives. In many cases, though, simply understanding the requirements for such a marriage will help the couple determine if they meet those criteria. In either case, though, it’s always best to consult with a qualified attorney to discuss your options, as the legal ramifications of a common law marriage may end up being more significant than you might have originally thought.