12

Questions about common-law marriage usually centers on when it's recognized, where it's recognized, and even things like whether the parties in one can deny its existence.

What am I looking for here is help collecting information specifically about how various jurisdictions (particularly in North America) view a relationship in which the parties have explicitly, through legal action, dissolved their marital relationship but continue to live as, what might be considered, a common-law couple.

That is, a couple formally divorces, but continues living together. As far as I can ascertain, there is no "annulment" of a divorce once it has been entered. So at what point, and on what basis, can this couple be considered to be "common-law"?

lgshost
  • 535
  • 4
  • 14

3 Answers3

17

Common law marriage for people who have been divorced is exactly the same as common law marriage for people who have never previously married.

Common law marriage in the U.S. states that still recognize common law marriage generally requires that the couple consider themselves to be married, and hold themselves out to the public as married.

When these conditions aren't met, the fact that two formerly married people cohabit does not give rise to a common law marriage. Consummation is required in some states, but cohabitation is not required (although it is considered as a factor in cases where the existence of a common law marriage is unclear), and no particular time period of cohabitation gives rise to a common law marriage.

On the other hand, if divorced people come to see themselves as married and hold themselves out to the public as married after the divorce (perhaps having a ceremonial marriage without a marriage license and filing joint tax returns), then they are married again, just as they would be if they had a formal marriage ceremony with a valid marriage license.

Incidentally, if divorced people cohabit without remarrying (either formally, or via common law), and then a child is born at that time, the strong legal presumption that a husband is the father of a child born to his wife does not apply (I've litigated that issue in a paternity case).

ohwilleke
  • 257,510
  • 16
  • 506
  • 896
12

If two people continue to live together in a marriage-like relationship, they continue to be spouses.

The terminology of "common law marriage" is outdated. Today, the relevant statute refers only to "spouses."

Spouses are defined, for the purpose of family law in British Columbia, in section 3 of the Family Law Act:

A person is a spouse for the purposes of this Act if the person

(a) is married to another person, or

(b) has lived with another person in a marriage-like relationship, and

  • (i) has done so for a continuous period of at least 2 years, or

  • (ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.

Jen
  • 87,647
  • 5
  • 181
  • 381
5

There is no common-law marriage in Australia

But the law does recognise de facto relationships

The only legal consequences are that the Federal Circuit and Family Court (or the Family Court of Western Australia) has jurisdiction to determine property disputes, just like they can following the ending of a marriage.

Divorce and relationship property division are separate legal processes; one does not necessarily imply the other. While a divorce always involves a court, many (most?) relationship property divisions, whether they involve a divorce or not, are handled by the parties without the court's involvement.

So, a couple is either married or not married. If they are not married, they either "having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis" or they don't. Cohabitation is a factor in determining this, but it is not the only factor.

Dale M
  • 237,717
  • 18
  • 273
  • 546