Also known as: de facto marriages · de-facto marriage · de facto marital · common law marriage · defacto marriage
Written by attorneys — see sources below.
A marriage formed without ceremony or license when two parties exchange consent to a permanent and exclusive marital relationship, cohabit as spouses, and hold themselves out publicly as married. Capacity to marry is required at formation, though an impediment later removed may validate the marriage from the date of removal in most states. A marriage valid where formed receives recognition elsewhere even if the forum state has abolished common law marriage.
Diana Delgado and Daphne Doyle lived together for seven years, maintained a joint bank account, listed each other as spouses on employer health plans, and posted anniversary celebrations online. After Diana died intestate, Daphne sought a spousal share. The probate court recognized the relationship as a valid de facto marriage because mutual consent, cohabitation, and public holding out were all present.
Daniel Diaz entered a de facto marriage with Denise Donovan while still legally married to another person. After that prior marriage was dissolved, the couple continued living together and holding themselves out as spouses. Most states recognize the de facto marriage as valid from the date the impediment was removed.
Dorothy Daniels and Devon Drake formed a de facto marriage in a state that still recognizes common law marriage. They later moved to a state that has abolished it. The second state must treat the marriage as valid because it was properly formed where the parties resided at the time.
Dynamic Solutions employees lived together for years and raised a child but repeatedly told coworkers they were merely living together until deciding about marriage. One partner died intestate. The surviving partner could not establish a de facto marriage because mutual consent to a permanent marital relationship was absent.
In June 1960, while students at Grinnell College in Iowa, Victoria Hewitt became pregnant by Robert Hewitt. Robert told Victoria that they were husband and wife and would live as such without a formal ceremony, and that he would share his life, future, earnings, and property with her. The parties announced to their parents that they were married and held themselves out as husband and wife thereafter. Victoria devoted her efforts to Robert's professional education in pedodontia, obtaining financial assistance from her parents, and assisted in his career by placing her payroll checks into a common fund. Three children were born to the parties during their relationship, which lasted until 1975. By that time, Robert earned over $80,000 a year and had accumulated substantial property, some held jointly and some separately. Victoria initially filed a complaint for divorce, but at a hearing on Robert's motion to dismiss, she admitted that no marriage ceremony had taken place and that the parties had never obtained a marriage license. The trial court dismissed the complaint, finding no ceremonial or common law marriage existed, and directed Victoria to make her complaint more definite regarding the property. Victoria then filed an amended complaint alleging an express oral contract to share property, an implied contract from the parties' conduct, a constructive trust based on fraudulent assurances, and unjust enrichment from her detrimental reliance. The trial court dismissed the amended complaint, finding that Illinois law and public policy require such claims to be based on a valid marriage. The appellate court reversed, and the Supreme Court of Illinois granted leave to appeal.
Dominion Capital executives lived together without marrying and later separated. One sought recovery of property accumulated during the relationship. The court allowed recovery under contract or equitable theories rather than recognizing a de facto marriage.
In October 1964, plaintiff and defendant entered into an oral agreement. While the parties lived together, they would combine their efforts and earnings. They would share equally any and all property accumulated as a result of their efforts, whether individual or combined. They further agreed to hold themselves out to the general public as husband and wife. Plaintiff would render her services as a companion, homemaker, housekeeper, and cook to defendant. Shortly thereafter, plaintiff agreed to give up her lucrative career as an entertainer and singer. She did so to devote her full time to defendant as a companion, homemaker, housekeeper, and cook. In return, defendant agreed to provide for all of plaintiff's financial support and needs for the rest of her life. The parties lived together from October 1964 through May 1970. During this period, as a result of their efforts and earnings, they acquired in defendant's name substantial real and personal property. This included motion picture rights worth over $1 million. In May 1970, defendant compelled plaintiff to leave his household. He continued to support plaintiff until November 1971 but thereafter refused to provide further support. Plaintiff brought this action asserting two causes of action. The first, for declaratory relief, asked the court to determine her contract and property rights. The second sought to impose a constructive trust upon one half of the property acquired during the course of the relationship. Defendant answered the complaint after an unsuccessful demurrer. Following extensive discovery and pretrial proceedings, the case came to trial. When the case was called for trial, plaintiff sought leave to file an amended complaint. The trial court treated defendant's motion to dismiss as one for judgment on the pleadings. This was augmented by a stipulation that defendant's marriage to Betty Marvin did not terminate until the filing of a final decree of divorce in January 1967. The court granted the motion and entered judgment for defendant. Plaintiff moved to set aside the judgment. She asked leave to amend her complaint to allege that she and defendant reaffirmed their agreement after the divorce became final. The trial court denied the motion. Plaintiff appealed from the judgment.
Duarte Shipping coworkers cohabited for years, pooled resources, and raised a child together. After separation one claimed a share of accumulated property as a de facto spouse. The court rejected the marriage claim but permitted recovery under unjust enrichment and contract principles.
Sue Ann Evans Watts commenced this action in 1982 against James Watts in the circuit court for Dane County. The amended complaint alleged that the parties met in 1967 when she was 19, living with her parents, and working full time as a nurse’s aide. Shortly after they met, the defendant persuaded her to move into an apartment he paid for and to quit her job, indicating he would provide for her. Early in 1969 the parties began living together in a marriage-like relationship, holding themselves out to the public as husband and wife. The plaintiff assumed the defendant’s surname. She gave birth to two children who also received his surname. The parties filed joint income tax returns and maintained joint bank accounts asserting that they were husband and wife. The defendant insured the plaintiff as his wife on his medical insurance policy. He also took out a life insurance policy on her as his wife, naming himself as the beneficiary. The parties purchased real and personal property as husband and wife. The plaintiff executed documents and obligated herself on promissory notes to lending institutions as the defendant’s wife. During their relationship, the plaintiff contributed childcare and homemaking services, including cleaning, cooking, laundering, shopping, running errands, and maintaining the grounds surrounding the parties’ home. She served as hostess for the defendant for social and business-related events. The amended complaint further asserts that periodically, between 1969 and 1975, the plaintiff cooked and cleaned for the defendant and his employees while his business, a landscaping service, was building and landscaping a golf course. From 1973 to 1976, the plaintiff worked 20-25 hours per week at the defendant’s office, performing duties as a receptionist, typist, and assistant bookkeeper. From 1976 to 1981, the plaintiff worked 40-60 hours per week at a business she started with the defendant’s sister-in-law, then continued and managed herself after the dissolution of that partnership. The plaintiff further alleges that in 1981 the defendant made their relationship so intolerable that she was forced to move from their home and their relationship was irretrievably broken. Subsequently, the defendant barred the plaintiff from returning to her business. The plaintiff alleges that during the parties’ relationship, and because of her domestic and business contributions, the business and personal wealth of the couple increased. Furthermore, the plaintiff alleges that she never received any compensation for these contributions to the relationship. The defendant indicated to the plaintiff both orally and through his conduct that he considered her to be his wife and that she would share equally in the increased wealth. The plaintiff asserts that since the breakdown of the relationship, the defendant has refused to share equally with her the wealth accumulated through their joint efforts. He has also refused to compensate her in any way for her contributions to the relationship. The circuit court dismissed the amended complaint, pursuant to sec. 802.06(2)(f), Stats. 1985-86, for failure to state a claim upon which relief may be granted. This court took jurisdiction of the appeal upon certification by the court of appeals under sec. (Rule) 809.61, Stats. 1985-86.
The parties must exchange consent to a permanent and exclusive marital relationship, cohabit as spouses, and hold themselves out publicly as married. No minimum duration is required once all three elements exist. Evidence of holding out includes joint accounts, shared surnames, and community statements that the couple considers itself married.
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…leads couples to choose a nonmarital relationship; many unmarried couples may also incorrectly believe that the doctrine of common law marriage prevails in California, and thus that they are in fact married. Consequently we conclude that the mere fact that a couple have not participated in a valid marriage ceremony cannot serve as…
…In our view this abolition does not invalidate a private cohabitation contract. Cohabitation agreements differ in effect from common law marriage. There is a significant difference between the consequences of achieving
…have never obtained a marriage license. In dismissing that complaint the trial court found that neither a ceremonial nor a common law marriage
…138 Cal. App.3d 464, 470-471 [188 Cal. Rptr. 31].) This policy in favor of formal marriage was expressed in the abolition of common law marriage
…(recognizing that the union of a couple for whom an Orthodox Jewish rabbi had performed a religious ceremony was equivalent to a common law marriage, which involves no solemnization, where no
An express written agreement stating the parties do not intend to marry unless they hold a formal ceremony can negate the consent element. Later conduct consistent with marriage may be weighed against the agreement, but the explicit disclaimer often controls and defeats recognition of a de facto marriage.
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Yes. Repeated private disclaimers that the parties are not married and have only agreed to discuss marriage later can show the absence of present mutual consent. Public holding out alone cannot overcome direct evidence that the parties never consented to a marital relationship.
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Yes. Both parties must be free of impediments at the time the de facto marriage is formed. If an impediment is later removed, most states recognize the marriage from the date of removal, but the marriage cannot arise while the impediment remains.
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