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What Is a Common Law Spouse?

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  • Written By: Malcolm Tatum
  • Edited By: Bronwyn Harris
  • Last Modified Date: 23 July 2014
  • Copyright Protected:
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    Conjecture Corporation
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A common law spouse is an individual who is involved in a common law marriage. Not all jurisdictions recognize the validity of a common law marriage, which creates a situation where a spouse in this type of relationship may or may not have access to the rights and responsibilities granted to a spouse who entered into a legally recognized marriage contract. This means that the partners in a de facto marriage of this type do not necessarily have the legal right to make medical decisions for one another, and the assets of a deceased common law spouse may not automatically be awarded to the surviving spouse.

There are several characteristics associated with the status of common law spouse. First, there is no formal record of a civil or religious marriage ceremony in the possession of any government authority. Often, the legal status of the spouse is similar to that of a single person, which means there are no opportunities to file joint tax returns. Since informal marriages of this type have no legal standing in many jurisdictions, the rights and privileges afforded to couples who are married in a legal ceremony are usually not extended to the common law spouse.

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In jurisdictions that do recognize marriages of this type, the common law spouse may attain that status by cohabiting with his or her partner for a specified period of time. For example, local law may recognize the common law marriage if the couple have shared a home for a period of one calendar year. Assuming that both parties are old enough to marry without the consent of parents or caregivers, and as long as neither party is involved in a legally binding marriage, there is usually no requirement other than this period of cohabitation.

In a few places around the world, a couple can enter into a common law marriage situation simply by presenting themselves as a married couple in a public setting. This is known as marriage by habit and repute. A common law spouse may choose to take on the surname of the other spouse, and use that name for legal records or various types of transactions. The pair may choose to book vacation arrangements, identifying themselves as a married couple. At times, these actions must be repeated over a period of time before the jurisdiction recognizes the existence of a common law marriage, while in others a single episode is sufficient to achieve the status of common law spouse.

Divorce can present some problems for the common law spouse. If the informal marriage is recognized in the local jurisdiction, the relationship is considered legally binding. This means that the two spouses must go through the process of obtaining a civil divorce, even though no civil ceremony was ever held to solemnize the marriage.

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