Common Law Marriage: What is it?
In Ohio, a common law marriage is a type of informal marital union, legally recognized as a valid marriage, that arises without a certified marriage license. A common law marriage in Ohio must meet the elements that are set out through Ohio case law, but Ohio had repealed common law marriages by statute in 1991 which abolished its creation and legitimacy after October 10, 1991. However, Ohio law still recognizes the validity of common law marriages entered prior to 1991. Common law marriages require certain elements to be present for legal recognition. The parties must have the requisite capacity to marry , continue to cohabitate, mutually agree to be married in the present tense, hold themselves out to the public as being married, and have the purpose of being a permanent legal relationship. These elements create a legal relationship similar to that of traditional marriage. A main distinction between common law marriage and ceremonial marriage is that a common law marriage does not require any formal ceremony to be valid.
Common Law Marriage in Ohio History
In 1971, the Ohio Supreme Court determined that it was at common law specifically able to recognize a common law marriage validly entered into in another state. This decision provided a legal basis for recognizing common law marriages within Ohio, even though they were not (and are not) validly entered into within the state.
In 1991, Ohio changed its law to provide that any common law marriage entered into after October 10, 1991, was prohibited in Ohio (barring relationships created in another state if the other state allowed a common law marriage). As such, entered into after this date in Ohio are void ab initio (as though they never existed), whereas those prior to October 10, 1991 are still considered valid.
Historically, common law marriage laws changed significantly after a series of U.S. Supreme Court decisions dating back to 1967, however. Most notably, the Court held in 1979’s Caban v. Mohammed, 441 U.S. 380, and 1982’s Turner v. Safley, 482 U.S. 78, that states do not have valid reasons to discriminate against unmarried persons in restrictive marriage regulations vis a vis the Fourteenth Amendment. Due to this precedent, many states has decided to move away from common law marriages to statutory marriage as the only type of valid marital relationship.
Ohio has been one of the few exceptions to this trend, preserving common law marriage as a valid marital relationship in this state, albeit for those couples who entered into the relationship prior to October 10, 1991.
The Current State of Common Law Marriage in Ohio
Currently, common law marriage is not recognized in Ohio. Ohio Revised Code (ORC) § 3105.12 unequivocally outlines that no common law marriage will be established effective after October 10, 1991. As a result, any couple claiming to be in a common law marriage after that date will have to establish a true ceremonial marriage, having all of the requisite formalities that apply.
After 1991, however, a few exceptions apply. Couples whose common law relationships began prior to 1991 may still have a valid claim today. Further, any couple who formally registered their common law marriage under Ohio statutory law prior to 1991 will still have a valid claim today that may be enforced.
Generally, before 1991, Ohio did allow for couples to create a common law marriage that, while not formalized or registered, would be recognized as a legal marital union. Common law marriages were not required to be ceremonial and were defined by other contractual principles – when a couple agrees to be considered married and begins acting as if they were married. Equitable relief was often provided in claims involving common law marriages in cases where a genuine contract had been formed, even if it was not formalized through traditional ceremony or registries.
These principles were supported in case law prior to 1991. For example, in Miller v. Hutton (1982), the Eighth District Court of Appeals allowed a common law spouse to enforce her property rights in a divorce, granting relief. The Court reasoned that a long-term interlude of cohabitation and holding themselves out as a husband and wife also amounted to a contract, giving rise to a marital-type relationship for the purposes of property division.
In addition, an early case decided by the Ohio Supreme Court, Price v. Ankney (1845), held that the intention to create a common law marriage could be inferred from the couple’s cohabitation. In cases where a genuine contract was formed, even if there was no proper ceremonial marriage, the legal implications of a contractual marriage attached to or defined relationships in Ohio.
As a result, Ohio courts decided issues involving common law marriage using general principles of contract, rather than the traditional statutory definition of marriage, pre-1991. As noted above, in cases where a genuine contract is shared between a couple, equitable relief can still be granted. In these limited circumstances, the Ohio courts can afford parties relief very similar to a ceremonial union.
Finally, following the repeal of common law marriage, certain courts in Ohio have applied estoppel, tainted by public policy, to prevent a party from making a claim to common law status. In these situations, a party may not be able to enforce a common law marriage claim because their conduct led the other party to believe there was no actual contractual marriage in place. As a result, the party who did not share the belief that they had a common law marriage will be permitted to void the claim based on public policy. Courts have afforded this relief on a limited basis.
Grandfathered Couples and Exceptions
There is a common myth that all common law marriages are "grandfathered in" and any couple who may have previously formed a common law marriage is not affected by Ohio’s abolishment of common law marriages in 2012. This is not the case. As discussed above, the November 3, 1998 amendment to O.R.C. §3105.12 creating the reporting requirements abolished common law marriages.
Further, the Ohio Supreme Court has held that the 2008 abolition of common law marriages affects all individuals, even those whose common law marriages may have been established under the pre-November 1998 version of O.R.C. §3105.12. In Joshua Smith v. Weld, 119 Ohio St. 3d 497, 2008-Ohio-4479, the Court held that "the repealing of the statutory language that recognized common law marriages retroactively eliminated the option of entering into a common law marriage." This does not differentiate between the application of the 2008 amendment to §3105.12 to future marriages only, and the application to all common law marriages whether "recognized under the pre-November 17, 1998 version of O.R.C. §3105.12, or predating that version but not reported to the clerk of courts." In other words, it is true that this amendment to the reporting statute further solidified the abolishment of common law marriages. However, the Court’s retroactive application of the change to all common law marriages, whether "properly" created or not under the pre-existing law retroactively eliminated the option of entering into a common law marriage in Ohio in 2008, as a matter of law. Though on the surface this may seem harsh to couples who may have previously formed common law marriages during the time when they were legally permitted in Ohio, the Court gave another option for such individuals to dissolve their marriage if they determined so. In Weld, the Court held that even though a single couple whose common law marriage predated the November 17, 1998 version of O.R.C. §3105.12 could no longer enter into a common law marriage in Ohio, they still had the option of complying with the divorce provisions of O.R.C. Chapter 3105. Therefore, it is necessary that these individuals comply with all the necessary steps to legally terminate their relationship under this chapter, therefore, allowing the parties to obtain a "decree of divorce or dissolution of marriage." Following the second marriage ceremony, the parties would then become "lawfully married" and would be able to legally remarry after their divorce. Although a divorce would be needed to dissolve a common law marriage, the divorce would not apply the division of marital assets if the couple had no other marital assets and debts. It can be concluded therefore, that the existence of common law marriage is irrelevant if you did not dissolve it in the proper manner. You must still obtain an annulment or a divorce to properly terminate a common law marriage.
The Legal Rights and Implications for Ohio Couples
A couple seeking to have their common law marriage recognized may have a compelling reason to do so. The legal rights flowing from the recognition of such a relationship are wide-ranging and often significant. Inheritance and property rights are the most immediately relevant examples. Ohio requires a spouse without a will to inherit his or her deceased partner’s belongings. Absent a living will, a person must have the permission of his or her spouse during incapacity to make decisions related to the individual’s health care.
Without recognition of a common law marriage, a "spouse" may not be granted a family court divorce. Therefore, the marriage may remain in legal limbo. The domestic violence protection order statute in Ohio defines family or household members to include the spouses of actual or apparently involved couples, who may therefore seek such protection orders . Even though Ohio does not recognize common law marriages entered into after 1991, the law requires an Ohio court to honor common law marriages entered into in other states that legally recognize such relationships.
Another area in which common law marriage affects the lives of couples is toward tax exemptions. Under Ohio law, a spouse may claim the homestead exemption in any case in which a property is also the primary residence of another person refusing to allow award of the exemption. The state also permits a surviving spouse to receive a one-time capital gains tax exemption on the sale of a residence if neither spouse had previously received the same deduction. Couples may face adverse tax consequences without consideration of the implications of having or not having a common law marriage recognized by a given forum.
Alternatives to Ohio’s Common Law Marriage
The alternatives to marriage recognized are civil unions, domestic partnerships, and maybe even cohabitation agreements. Domestic partnerships or civil unions may provide an alternative to couples residing in Ohio for others because of the limited rights they provide – they may be appropriate for limited circumstances but not transferrable to others. Cohabitation is when two people, who are not married, live in the same household and are not sexually involved with one another. Cohabitation agreement, if drawn up properly, can avoid the potential future claim of spousal support by your live-in partner. Cohabitation agreements address issues such as property attributions, decisions about home purchases, how to handle temporary moves, and other day-to-day decisions along the way. Cohabitation contracts, if drafted correctly, have the force of law – e.g. enforceable on their own terms, so you know what you are getting into before even considering living together.
First I’d suggest avoiding buying real estate together jointly in your own names. Avoid registering any joint assets – bank/brokerage accounts, automobiles, etc. There is only one reason to do this – to obtain a joint loan with more favorable terms. But if you cannot afford to make the payments, you should not get that loan regardless of the interest rate that you are offered. Consider creating a life or durable power of attorney in which you appoint your live-in partner to make medical decisions for you. This allows him or her to make those decisions without any additional legal burden on his or her part. You may also want to consider at least a simple will, providing for the other’s benefit if either were to pass away. Finally, it makes sense to have a frank discussion about these matters prior to taking the plunge and moving in together. Have the conversation when you aren’t tired after work or after a few drinks.
Co-habitating and letting the relationship run its course falls into a "don’t ask-don’t tell" strategy that may work for some parties. However, I do not recommend that strategy because it was tested in a case called McKay v. Furkam, 93 Ohio App.3d 215 (Ohio App.2d Dist. 1994). When the relationship soured, after they had three children together, the parties decided to end it. Their rights were not protected because they did not adopt an alternative arrangement.
Cohabitation agreements are one way for parties to enjoy most of the benefits of marriage without all of the legal obligations attached to obtaining a divorce. Parties to such relationships are not eligible for alimony and can provide for property, debt, custody, and support matters in their cohabitation agreement. Thus, they can take their chances legally or they can opt to simply enter into cohabitation agreements to pull the rug out from under the state and maintain their respective autonomy. Perhaps this is not the legal answer you are looking for, but it does work.
Where to Get Help: Legal Resources
Individuals with questions regarding their status as common law spouses, including financial and familial obligations, are encouraged to contact a local attorney for specific guidance on their situation. When seeking an attorney, individuals should be cautious to determine that the attorney regularly practices in the area in which they are seeking advice. While many attorneys who are well-versed in common law issues practice in multiple states , it is important that your attorney knows that your case will be considering the laws of Ohio and potentially other states.
Those in need of free legal assistance may wish to contact their county’s legal aid organization. These groups vary in the services they offer and eligibility requirements, but a list of legal aid offices is available at the Ohio Legal Assistance Foundation website. Legal Aid Society of Greater Cincinnati is extremely well reviewed and has locations serving the applicable Ohio counties.