Common Law Marriage Explained
Common law marriage is defined as a marriage that comes about just by the approval and consent of the parties, without a specified form of ceremony. The marital partners are referred to as "common law spouses" or "common law married persons". A common law marriage generally has the same legal effect and is treated the same as a ceremonial marriage. There are many requirements that make up a common law marriage. Most generally, both parties must have the capacity to enter into a legal marriage. They must be of an age that allows them to enter into a legal marriage and they must not have an existing legal marriage. There must be consent. Both parties must intend to be married and must hold themselves out to the public as being married. There must be a sufficiently significant period of cohabitation. There is no specific period of time that is required for a sufficient period of cohabitation in order for a common law marriage to be established. An analysis of individual facts is necessary to determine what type of cohabitation is sufficient to establish the existence of a common law marriage. Finally, there must be continuous cohabitation. The parties must live together continuously and habitually. Cohabitation does not necessarily mean the parties must live in the same physical location. For example , a married couple may move back and forth between owning homes in two different states, with the intent required for cohabitation, clearly intending to live in both places, or depending on where work requires them to be. Cohabitation may occur if the main purpose of the party’s gathering together at the same physical location every day is to share companionship and life together. Cohabitation is much more than just living together for sexual purposes. Cohabitation may exist absent of sexual activity. Cohabitation is also very different from merely visiting. For example, a woman living in Florida with her husband, who lived in New York, visited her husband in New York every other month by staying with him in his home for an extended time, and spending weekends with him in his other house, which he rented after his wife put him out of her home in Florida when their marriage was in trouble, was found to have cohabited with her husband within the meaning and intent of a common law marriage despite having lived away from him during the times in his absence. Cohabitation must be exclusive and must be with serious and mutual intent to be married.
Illinois Laws on Marriage
Illinois has several laws that define and regulate the institution of marriage. A couple does not need to file for a marriage license to have their union recognized in the State of Illinois. However, the majority of individuals planning to marry in the State of Illinois will apply for and receive a marriage license, which is a document issued by the County Clerk. Illinois law states that two individuals wishing to marry must complete a marriage license application with their respective County Clerk’s office, which asks for the full names, addresses, and birth dates of both partners.
According to 750 ILCS 5/211, marriage license applications filed with the County Clerk must be before the ceremony is performed. The application is valid for a period of 60 days from the date it is issued by the clerk. The County Clerk is required to transmit a certified copy to the County Recorder of the county in which the license was issued, and that copy should be recorded within one week from the day of the marriage. Copies of the application, documents, and records may be made and provided to either of the parties listed in the family law matter upon request.
The couple must wait a minimum of 24 hours after the application has been filed to receive the marriage license, but there is no waiting period between the issuance of the marriage license and the actual ceremony. The couple can be married by any authorized clergy member in front of two witnesses that are 18 years of age or older. The ceremony performed by any authorized representative must be kept on record with the County Clerk where the marriage license was issued.
Common Law Marriage and Illinois
When it comes to common law marriage, Illinois has had a long and complicated history. The state did not formally recognize common law marriage until 1905, when the legislature passed a law requiring that a common law marriage made before June 1, 1905 would be considered a valid marriage if: the husband and wife agreed to a permanent relationship; they lived together in Illinois; the husband exercised control and superiority over his wife; and the wife served the husband as a wife in return for some support to the wife and her children.
The law was re-codified in 1956 and changed to a much simpler version. Any couple claiming to be married by common law must cohabitate and both parties must intend to be married.
Fortunately, Illinois no longer recognizes common law marriage. While Illinois does have a few exceptions to this rule, they are very specific and only apply in certain situations. To date, the only exception may apply if a couple does not live in Illinois and moves to a state that recognizes common law marriage. In this situation, Illinois may recognize the common law marriage.
However, any out-of-state common law marriage performed in another state would not be eligible for divorce in Illinois. Only marriages which are performed within the state lines of Illinois are recognized.
Ramifications for Unmarried Illinois Residents
The implications of the lack of common law marriage in Illinois can also be felt by unmarried couples who are simply living together, or in a domestic partnership but are not legally married.
Because Illinois does not grant legal recognition to common law marriage, an unmarried cohabitant would likely need to prove that he or she is entitled to a claim against the decedent under the statutes of descent and distribution, or that there was a contract between the parties that entitled the survivor to a claim as a creditor against the estate. Additionally, even though an estate would not be responsible for debts incurred during life by an unmarried cohabitant, there could be an exception if those debts were for necessities, or if the debts were guaranteed by property owned by the deceased person, including real estate, furnishings, or vehicles.
If the parties to a divorce or paternity action have failed to marry , they need to be mindful of the fact that Illinois does not recognize domestic partnership and will not grant an unmarried cohabitant rights as an unmarried person or a married person. Consequently, property acquired by unmarried cohabitants may not be divided even if acquired in furtherance of their joint purpose. Parties may acquire property as joint tenants or tenancies in common and the death of one of the parties terminates any and all interests in this property of the other party. As a result, an agreement that provides for equitable division of property in the event of dissolution of the domestic partnership probably is not recognized in Illinois. Unmarried cohabitants may wish to consider a written agreement concerning distribution of property or maintenance in the event of dissolution of the relationship or separation. This is merely an informal instrument which is unlikely to be held in contempt in the context of an existing agreement, but may be considered when weighing equity in resolving a claim or dispute.
Marriage Alternatives in Illinois
While Illinois does not recognize common law marriage, couples who do not wish to marry must identify another form of legal partnership. Domestic partnership agreements are one option, though they are much less common than civil union agreements. A domestic partnership agreement affirms that two people are in a committed relationship with each other, and it lays out how their property and other assets should be divided if the relationship ends or if at least one partner dies. Terms can also be set out for how each partner handles credit cards, accounts, and debts, as well as how assets will be managed and distributed.
A domestic partnership agreement is not enough if you want to legally ensure that your partner is permitted to make medical decisions on your behalf if you are not able to do so. Beneficiaries on life insurance and health care proxy designations are not covered by a domestic partnership agreement, nor are parental rights, tax benefits, or immigration status. Furthermore, a domestic partnership agreement is valid only if both partners intend to remain in a domestic partnership – if either partner intends to convert their domestic partnership into a marriage, the domestic partnership agreement becomes void.
A civil union is a legal relationship between two people who would like to live together and share their lives. A civil union provides most of the same rights, benefits, and responsibilities afforded to couples who are married. Among the rights provided by the civil union law are the right to a caretaker’s allowance, the right to maintenance, the right to receive pension and death benefits, and the right to obtain dependent coverage under health care and life insurance plans. The civil union law also requires civil union partners to go through the same divorce process that applies to married couples.
Legal Counsel Available for Illinois Couples
In Illinois, there is little to no case law on what constitutes a common law marriage. Therefore, couples and individuals contemplating marriage in Illinois should seek legal advice as to their individual legal remedies and options before entering into a cohabitation or marriage arrangement. This is especially true when individuals have built up a property interest in the relationship such as investments, a business, or personal assets. Without a legal remedy created in advance, individuals’ interests in these arrangements can become difficult if not impossible to protect should the relationship fail.
Furthermore, if a couple does choose to cohabitate , they should be aware of the property – whether real or personal – that can be considered marital or non-marital if the relationship dissolves through legal separation or dissolution. Many individuals are unaware of the fact that just because a home may be titled in their name alone or was inherited to only one party, it does not mean that such property is excluded from distribution in the event of divorce.
Finally, there are strict limitations on the time frames within which an individual can file for divorce or legal separation in Illinois. The requirements within in Illinois’ Residency Statute and the jurisdictional limitations of the court make it critical to seek an attorney’s advice early on in a relationship before problems arise.