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What Is a Common Law Affidavit?

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  • Written By: Terry Masters
  • Edited By: Allegra J. Lingo
  • Last Modified Date: 20 November 2016
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A common law affidavit is a written document that presents sworn statements offered under the penalties of perjury to establish the existence of a common law marriage. This type of affidavit is typically prepared to secure employment or beneficiary benefits for a live-in partner. It is presented to an employer or other authority in lieu of an official marriage certificate.

An affidavit is a legal document that is prepared by a witness to attest to facts of which the witness has personal knowledge. The document is signed under oath and in front of a notary or other officer of the court. Lies or misrepresentations made by affidavit are punishable in the same way as lying in court on a witness stand.

Marriage is a legal status between two people. It requires third parties to treat spouses as a single legal entity for purposes of taxes, benefits, or anything else that one spouse would be entitled to under the law. Couples who want to marry typically have to obtain a marriage license from the jurisdiction where they live and observe any other legal formality required by statute. Under ordinary circumstances, if two people are merely living together without meeting the legal formalities for a marriage, they are not married.

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There is one exception, however. Common law marriage is a historical holdover under English common law that established marriage before the status was codified with specific legal requirements. A common law affidavit can be used to prove the existence of this type of marriage. Most jurisdictions recognize common law marriage as a substitute for formal marriage if certain living conventions are in place.

If one party to a common law marriage wants to obtain spousal benefits for a partner, a common law affidavit may be required to substantiate the relationship. The person providing the proof of the relationship has to sign a statement that typically states that the common law spouse is at least 18 years of age, is not a relative, and is not married to anyone else. The affidavit must establish that the couple has been living together for at least a year and are considered married by friends and family.

The common law affidavit must usually be accompanied by additional substantiation that proves the couple has been conducting themselves as if they were married. Satisfactory forms of proof are a joint mortgage, joint bank accounts, or filing joint taxes. If the partner is designated as a spousal beneficiary in a will, life insurance, or for any other retirement benefits, it will usually serve as satisfactory proof.

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