Also known as: de facto marriages · de-facto marriage · de facto marital · common law marriage · defacto marriage
Written by attorneys · grounded in primary & secondary sources — see 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.
Select any source to read its text and confirm it supports the definition.
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.
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.
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.
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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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.
…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 this context is Smith v. Smith , 255 Wis. 96, 38 N.W.2d 12, 14 A.L.R.2d 914 (1949). In Smith , one of the parties to a common law marriage
…have never obtained a marriage license. In dismissing that complaint the trial court found that neither a ceremonial nor a
…138 Cal. App.3d 464, 470-471 [188 Cal. Rptr. 31].) This policy in favor of formal marriage was expressed in the abolition of
…(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
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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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