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Common Law Marriage


A couple holding hands (Copyright:leeavison / 123RF Stock Photo)

The idea of common law marriage can be traced back to medieval times, and although the concept has been around for a long time, there are a few misconceptions surrounding what it takes to establish a common law marriage. While couples may have valid reasons for wanting to form a common law marriage, it is important for them to understand the limitations which differ this type of marriage from the more traditional, civil or religious marriage. 

Contrary to widely held belief, it takes more than a couple living together for a certain number of years to be considered a common law marriage. Each state that allows common law marriage has established its own requirements for those seeking the benefit of a state-recognized marriage. To prove the existence of a common-law marriage in Kansas, the parties must meet three requirements: (1) the parties must prove that they both had the capacity to marry; (2) they must demonstrate that they both had the intent to be married; and (3) they must have both held out to the public that they were married. 

To have the capacity to marry requires that the parties be able to understand the so-called "marital contract" and its duties and responsibilities. For this reason, Kansans under the age of eighteen, or over eighteen but suffering some form of mental incapacity cannot enter into a common law marriage; nor can those who are closely related to one-another, or those who are already in a legally-recognizable marriage to another individual.

The present intent requirement for common law marriage in Kansas is not a promise or intention to marry one another in the future. This intent does not have to be in writing, though agreements written by the parties and signed with a notary and/or mutual Facebook status changes are often a convenient form of proof; most of the time it is simply inferred from the conduct of the spouses. Maybe they started referring to one another as "my wife" or "my husband." Because the parties' conduct may mean different things to them than to others, intent is sometimes difficult to prove.

Along with the capacity and present intent to be married, holding the marriage out to the world is a requirement of common law marriage. This is often confused with the intention requirement, but though it will almost always work to show intent, intent cannot show a holding out as married. Intent is internal, and a holding out is external. There are several activities that could be considered holding a marriage out to the public, including things like, cohabitating, using the same last name, filing joint tax returns, opening joint bank accounts, and joint ownership of property. According to this requirement, it must be apparent that the parties live as husband and wife; this is to prevent fraudulent claims of being common law married for some kind of gain by providing some objective standard or public notice. The bonus is that it provides clear evidence of the intent requirement being met.

Only a minority of states recognize common law marriage, and where a common law marriage has been established, a divorce is required to dissolve the marriage. On its surface, common law marriage seems to provide a way for couples to be married without the formalities associated with civil or religious marriage. However, it can be complex, so it is important for the parties to obtain the advice and assistance of a licensed Kansas attorney to help them navigate a separation or divorce in the family courts of Kansas. Contact us today to learn more.

By Beth Crosland, J.D.

Waylon Bergstrom, research assistant

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Attorney Adam Mack

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Mack & Associates, LLC Law Firm is a full service law firm serving client for Bankruptcy, Personal Injury & Family Law Cases in Kansas.