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Cohabiting in the USA

Robert Whiston, 26 April 2009

The only American States which still recognise ‘common law’ marriages, i.e. cohabiting, and treat them as legally binding without equivocation total 9 out of 52 states. They are:

  1. Alabama
  2. Colorado
  3. Georgia
  4. Iowa
  5. Kansas
  6. Montana
  7. Pennsylvania
  8. Texas
  9. Utah

Twenty or thirty years ago around 16 states recognised common law marriages but several of these states have now repealed their laws and only recognise common law marriages entered into prior to a certain date, e.g. Idaho, Ohio.

The following States give limited recognition to non-formal marriages, i.e. cohabiting relationships:

  • Alaska – cohabitation is not recognised but has a rather unique ‘opt in’ property scheme.
  • Idaho – recognises common law marriages but only those prior to 1995.
  • New Hampshire – but only for purposes inheritance matters.
  • Ohio – recognises common law marriages but only those prior to 1991.
  • Vermont– this is listed as the state that first to recognised “civil unions” for homosexual partners but it is unclear if this extends to heterosexual couples.

What is not usually appreciated is that states which recognise common-law marriages have set quote rigorous requirements (to prevent abuse of the system), before a union can be acknowledged as such; simply living together, even for an extended period of time, as envisaged by Lord Lester’s proposals, is generally not enough and would fail the test of cohabiting.

The minority of States that continues to recognise common-law marriages expect more than mere cohabitation and requires that couples should ‘hold themselves out’ to the world to be husband and wife. The couple generally must agree to enter into a martial arrangement, must cohabit (exclusively ?) with one another. They can affirm this, for instance, by filing tax returns as a ‘couple’ taxpayers – but even this is no guarantee of acceptance that an on-going cohabiting relationship will be recognised by the courts.

What men in Britain must be aware and wary of is the importation of the American form of separation, or dissolution, of the cohabiting arrangement. Under US law cohabitees, i.e. in effect only women, enjoy the same property distribution as if they were formally married.

This is punitive and negates the whole purpose in Britain of informal cohabiting.

In a country where cohabitation, i.e. common law marriages, has a long tradition due to the Lord Hardwicke’s Marriage Act being confined to the mainland of Britain, professional advisors still report that unless education of the parties takes place unpleasant surprises lie in store for them.

If cohabiting women in America still ‘don’t get it’ in 2009, and do not fully understand their situation, should we inflict such potential for chaos on women in this country with no such history ? (see 2008 British Social Attitudes survey).

American women who are unmarried cohabitants also have to face the complications of conflicting state ‘jurisdictions’ for both a). their marriage and b) their separation, and what rights may be available to them in each state. Britain & Wales is a unitary nation and therefore any change to cohabitee laws benefits all regardless of where they live.