Does Illinois Recognize Common Law Marriage?

No, Illinois does not recognize common law marriages. There is one exception to the rule, but before we get into the details, lets go over the basics.

What is a Common Law Marriage?

A common law marriage occurs when a couple lives together for a length of time and considers themselves to be “married,” but have never gone through the formal process of getting a marriage license. Although the couple must live together, there are more requirements than just having a shared living arrangement in order to have a valid common law marriage.

Requirements for a Valid Common Law Marriage

First, the marriage must be contracted in a state that recognizes common law marriages. Only these few states and districts currently recognize common law marriages:

• Colorado
• District of Columbia
• Iowa
• Kansas
• Montana
• New Hampshire (for inheritance purposes only)
• Oklahoma (courts are in dispute over recognition)
• Rhode Island
• South Carolina
• Texas
• Utah

Second, both individuals must have the “legal capacity” to marry. That is, they must be of the correct age to be married (age requirements vary among states), must be of sound mind, and must not be legally married to someone else.

Third, the couple must hold themselves out to the community as husband and wife. There are many ways to go about this, but the most common include: referring to each other as “husband” and “wife,” holding joint bank accounts, or taking the same last name.

Finally, the couple must intend to be married, i.e. the couple must have a mutual agreement to be in a permanent and exclusive relationship with one another.

What’s the Exception?

The exception to the rule is if a couple, that was domiciled in another state in which common law marriages are recognized, contracted a valid common law marriage in that state, such marriage will be considered valid in Illinois. All other couples seeking to get married must obtain a marriage license in order to be considered legally married in Illinois.

Can I have a Valid Common Law Marriage in Another State and Return to Illinois?

No. Even if performed in another state which recognizes common law marriages, a couple whose marriage is sought to be upheld in Illinois will not be recognized if, at the time of marriage, the couple was domiciled in Illinois.

Why Should You Care?

Cohabitation has increased among couples and continues to grow rapidly, especially among young adults. According to the U.S. Census Bureau, in 2010 there were 7.6 million opposite-sex cohabitating couples in the United States and an additional 514,735 same-sex cohabitating households. With a growing number of cohabitating couples throughout the United States, individuals’ rights may be at risk.

No Marriage, No Rights? Call an Experienced Libertyville Family Lawyer Now!

In Illinois, unmarried couples are not entitled to the same rights and protections as married couples. In order to protect their rights, unmarried couples should consider the benefits of a cohabitation agreement. Cohabitation agreements can help to protect unmarried couples’ rights as partners, and as individuals. These agreements often include provisions regarding property acquired before and during the relationship, expenses, separation or death, and dispute resolution. To find out what legal rights you may be entitled to, to inquire about the possibility of forming a cohabitation agreement, or to create a valid pre-marital agreement, contact our skilled family law attorneys in Libertyville at Johnston Tomei Lenczycki & Goldberg, LLC to help protect your rights.