What is common law marriage?
Common law marriage, generally, is a legal union between two individuals that may be considered as legally binding without a formal ceremony and without obtaining a marriage license. In this context, a common law marriage differs from the more recognizable ceremonial marriage — the type of marriage that is formalized with a religious or civil ceremony, after which a marriage certificate is issued and legally recognized by the state.
Most states require a formal ceremony to enter into a legal marriage, but a few specifically recognize the existence of common law marriage . In places where common law marriage is recognized, however, factors that are considered in determining whether a common law marriage exists may vary on a case-by-case basis. Generally, in those jurisdictions, requirements that have been adopted to establish the existence of a common law marriage often include: 1) an agreement between the parties to the relationship that they are married; 2) an exchange of legal consent or act as if married in public (e.g., using the same last name); and 3) cohabitation for a period deemed sufficient — the period of time required to establish a common law marriage varies by state.
Does Illinois recognize common law marriage?
In Illinois, common law marriage has never been recognized. Current Illinois law prohibits the recognition of common law marriages. Illinois does not recognize common law marriage in any context by either statute or court decision. In 1909, the Illinois General Assembly adopted a statute that invalidated common law marriages, which is still in effect today. The Illinois Supreme Court has upheld the constitutionality of the 1909 statute. Thus, only couples who are formally married and issued a marriage license may be recognized as married in Illinois.
Illinois courts have also addressed the enforceability of cohabitation agreements entered into between unmarried couples. Any agreement that is not for an illegal act or to divide up rights of support of future children in a marriage not intended to occur is enforceable. See, e.s., Hewitt v. Hewitt, 73 Ill. 2d 487, 497, 385 N.E.2d 857, 862 (1979). It is important to note that under the Illinois Uniform Premarital Agreement Act, 750 ILCS 10/1 et seq., Illinois law permits both married and unmarried persons to enter into a premarital agreement. A premarital agreement is a written document entered into prior to a marriage, on a statutory form provided by the circuit court, that determines the various rights and obligations of a couple in contemplation of their forthcoming marriage.
Recognitions and exceptions across state boundaries
Couples who enter into a common law marriage in a state that recognizes it as valid, then move to Illinois, will not automatically be recognized as married under the law. In order to have standing to file for divorce or annulment, two things must occur: (1) an Illinois state approved form of marriage must be filed, then (2) the couple must either physically live in the state for at least 90 days or one of the parties must have resided in Illinois for the past six months. As such, non-conformity with the Illinois law is highly likely to affect individuals that decide to leave their state of residence after contracting a common law marriage. Additionally, if one of the parties has resided elsewhere in another state with recognition of such unions for over 110 days, and has married, a divorce entity will not be able to perform a divorce in Illinois.
Legal rights and obligations for IL spouses
Though not legally recognized in Illinois, common law marriages do afford some protections and responsibilities under certain circumstances. Because of the absence of formal recognition by the State, these basic rights don’t extend to all couples who cohabitate. For couples sharing a home in Illinois, however, the law offers recourse under circumstances involving property, custodial matters and inheritance.
Property
While not automatically awarded, property acquired during the course of a common law marriage may be distributed in an equitable way. Illinois law addresses property distribution both through the Illinois Marriage & Dissolution of Marriage Act and through the state’s common law.
Inheritance
To address the fact that common law marriages in Illinois aren’t recognized , Illinois law allows for inheritance when the couple presents proof of common law marriage. This provision allows the spouse to inherit by representation to the extent that he/she would if the couple had been legally married.
Custody
Individuals in common law marriages are not entitled to the same rights when it comes to child support and custody. Instead, Illinois courts award custody based upon the relevant factors provided in the Children and Parents’ Rights Act. Parents cohabiting outside of legal marriage may assume parental responsibilities and obligations by agreeing to serve as a parent.
Alternatives to common law marriage
Cohabitation Agreements and Domestic Partnerships: Alternatives to Common Law Marriage in Illinois
If common law marriage is no longer an option in Illinois, what choices do unmarried couples have? While their options are limited compared to legally married couples, opponents of a common law marriage system are generally satisfied that the few choices available to unmarried couples in Illinois are enough to adequately protect their rights. Generally, there are three options that unmarried couples can pursue to protect their rights and any joint property if they are not legally married: 1) a cohabitation agreement; 2) a domestic partnership; or 3) leaving marital property to anyone they desire through a will. Unlike legally married couples, however, unmarried couples cannot proceed as legally separated individuals filing for divorce of annulment because Illinois does not recognize legal separations for unmarried couples.
A cohabitation agreement is essentially a contract between two or more people involved in a romantic relationship that governs the couple’s rights and responsibilities while living together and after the romantic relationship ends. They must be in writing and signed by both parties. One of the advantages of a cohabitation agreement is controlling provisions that would otherwise be controlled by family laws. This may include co-ownership of real estate, division of property upon separation, financial support, pets, etc. Importantly, the contract may not govern child custody, child support or visitation, because courts will ultimately decide those matters in the best interests of the child. Illinois courts will enforce cohabitation agreements except for provisions in violations of public policy. Illinois courts will also not enforce provisions that are illegal (e.g., gambling debts) nor will provisions be enforced if the agreement is included in a prenuptial agreement.
In 2011, Illinois enacted a Domestic Partner Registrations Act allowing same-sex couples the ability to register as domestic partners. Unmarried couples were able to register as domestic partners as well in Illinois until the 2015 U.S. Supreme Court ruling legalizing same-sex marriage nationally. Unmarried couples in Illinois can still benefit from the Illinois Domestic Partner Registration Act as domestic partners. Once an unmarried couple is certified to be domestic partners, they do have many federal and state rights traditionally reserved for married couples, such as inheritance, health insurance benefits, state taxes, etc. The major disadvantage when signing up to be domestic partners with someone, is that the rights you give up as a partner during the course of your relationship cannot be revoked unilaterally without court intervention.
The limiting factor of these legal agreements are that the provisions only apply to the relationship as long as one person is registered as a domestic partner or is still cohabiting with the other person. Once the relationship or registration terminates, the rights, responsibilities and obligations between parties that were in place under the cohabitation agreement or domestic partnership are no longer effective.
The bottom line is that couples who cohabitate without being legally married should ensure that they are protecting themselves with a valid legal document, to ensure that their interests are adequately protected in the event the relationship disintegrates or if one of them passes away.
How to seek legal advice
Consulting with a family law attorney experienced in issues of common law marriage may be the most productive step for a couple who believes they may be affected by common law marriage issues, and who wants to ensure that their rights and obligations are as clear and as legally enforceable as possible . This is an important final point to note because there are laws that affect those who are common law spouses even if common law marriage is not legal in Illinois. Those laws could impact a party’s property, rights, duties, and obligations and are therefore equally important to understand.