Common Law Marriage in Illinois: Beliefs and Reality of the Law
What is Common Law Marriage?
Common law marriage is a somewhat archaic term that describes a legally recognized marriage between two people that does not involve an officiant or a marriage certificate. As the name suggests, the relationship is recognized solely based on common practice or tradition. Generally speaking, if you did not have an officiated wedding, you are not legally married. Illinois has not recognized common law marriages for many years. To be considered legally married in Illinois, you must have a marriage license and undergo an officiated marriage ceremony . Perhaps the most common misconception regarding common law marriage in Illinois is the idea that "palimony" might be owed to a live-in partner after a split. Even when a couple has lived together for years, or maintains joint accounts, etc., they are still classified as separate. While commingling of assets can allow for equitable distribution of property upon divorce or death, it does not establish a marital relationship.
Does Illinois Recognize Common Law Marriage?
No, the State of Illinois does not recognize common law marriage at this time. In 1905 the Illinois legislature passed legislation expressly prohibiting such unions, and in 1933 affirmed the ban as follows: "No agreement between a man and a woman to be married to each other creates or constitutes a marriage until a license is issued and a marriage ceremony is performed in accordance with the laws of this state. No person who has a living husband or wife, or a party to a civil union, shall be permitted to marry another individual while the prior marriage or civil union continues in Illinois. This Section shall not apply when an individual has been awarded a judgment that dissolves a civil union or judgment of dissolution of a marriage if three hundred and sixty-five days have passed since the entry of the judgment and the preceding civil union or marriage has become final." (750 ILCS 5/216(a)) If parties cohabitated as common law spouses prior to 1905, their common law marriages would still be valid, as the statutory prohibition on common law marriage does not have a retroactive effect. But to enter into a common law marriage today would not be valid, and parents involved in a divorce proceeding would not be able to claim alimony based on a common law marriage; at least not in Illinois.
Legal Duration, Myths and Realities of Common Law Marriage
There is a widespread belief that once a couple has lived together for a certain number of years, they are automatically considered married under the law through "common law marriage." This misconception, however, is incorrect in states where common law marriages are recognized. A common law marriage is one that lacks a marriage license or formal ceremony. The couple may present a united front to the public, but have not undergone the procedures required by law to be officially under the protection of a legal marriage.
A marriage created without any official action by the couple, such as a marriage license or official ceremony, may be able to be recognized by the state if the couple satisfies very specific requirements in a state where common law marriage is recognized. In Illinois, however, common law marriages are not recognized. Any couple who resides in Illinois is required to marry using the procedures set forth in the Illinois Marriage and Dissolution of Marriage Act.
In states where common law marriage is allowed, a couple must be legally allowed to marry in that state, reside there, and hold themselves out to the community as a married couple. This means that the couple must live together and present themselves as a married couple, using the same last name when requested on forms, sharing finances, etc. In their new home, they must also be legally allowed to marry. This can include meeting the age requirement and not being already married to someone else.
The misconception that cohabitation for a certain number of years automatically creates a common law marriage is a problematic one because it has no bearing on the truth of the situation. Simply put, living together for some number of years does not result in a common law marriage. As noted by the American Bar Association, "living together – even for many years – is not sufficient to create a common law marriage." Cohabitation is simply not enough to prove that you and your partner intended to enter a common law marriage. You must also establish the other two elements listed above to establish a common law marriage.
Unfortunately, the psychological aspect of this concept can make the situation hurtful. For example, let’s say you and your partner have lived together for many years in a couple of different states. In the state where you currently live, common law marriages are not recognized. You’ve always intended to marry each other, but just never got to it. One day, you receive a notice from a state where you had never lived and where common law marriage is recognized, stating that you have been married for the past ten years. The notice includes the name of an attorney in that state and a request to respond to the notice. Your partner lied about having married you at some point.
In Illinois, this would be considered a void marriage because you were never eligible to marry in that state as you do not live there. If you attempt to register the marriage in Illinois, you would be subject to prosecution under the Illinois Criminal Code for the crime of "unmarried cohabitation."
Another related issue is that the person or entity sending the notice and attempting to register the marriage does not have the proper authority to recognize the "marriage" as valid. The truth is that, even in states where common law marriage is recognized, it may be impossible to create a common law marriage retrospectively by living in another state. A common law marriage can only be created in the state where one intends to establish the relationship.
In Illinois, for example, the common-law marriage created in another state does not automatically carry over into the new state unless both parties are legally allowed to marry there. It is, therefore, critical to be honest with your partner about whether you intend to marry and, if so, when and why you still have not yet done so.
Legal Waivers to Common Law Marriage in Illinois
For couples seeking the economic and tax benefits of legal union without the religious or societal connotations of traditional marriage, Illinois offers alternatives. And while same-sex couples have shared these options with opposite-sex couples since civil unions became legal in Illinois in 2011, these domestic partnerships are available to everyone in the state. All Illinois couples seeking to formalize their relationships have three options at their disposal: a civil union, a domestic partnership, or a prenup (or prenuptial agreement). But unlike common law marriages in other states, these arrangements will not protect couples in the event of death or divorce.
Civil Union
Like marriage, civil unions are domestic partnerships recognized in law. Illinois residents age 18 or older and residents under the age of 18 with parental consent and a court order can enter into this type of relationship. Couples don’t have to enter into a civil union in Illinois to be recognized as a couple in the state – couples who enter into such a relationship in another state are recognized in Illinois as being in a civil union , and these premarital agreements are governed by Illinois law. Civil unions don’t grant any new rights to opposite-sex couples that have been denied in traditional marriages, but they do give same-sex couples more options for financial planning and damage liability in case of divorce or death in the same way that marriages do.
Domestic Partnership
Domestic partnerships are not as binding as civil unions and are intended primarily for couples who wish to act as emergency contacts for one another, or to allow partners through a state agency to purchase insurance. Domestic partnerships confer no rights when a partner passes away or gets a divorce.
Prenups
Prenups (or prenuptial agreements) can give a lot of control to those who seek them, but they also confer certain benefits on all couples. They allow couples to make decisions about property distribution and other financial matters for themselves, rather than having to rely on Illinois courts to make decisions for them if they should separate or divorce. Specifically, a prenup allows a couple to decide how to divide their assets if the relationship ends.
The Effect of Out-of-State Common Law Marriages
The legal landscape surrounding common law marriages is further complicated when the couple has moved to Illinois from a state that recognizes such arrangements. In Illinois, while common law marriages entered into prior to their abolishment are given full legal recognition, what happens when the couple is from out of state?
Generally, if a couple enters into a marriage that is valid in their home state, the Statute of Frauds prevents invalidating their legal marriage merely because it was not performed according to Illinois law. That is, it does not matter whether or not the marriage met Illinois definition of a marriage; rather, in this case the question is, was the couple legally married in their home state? If the answer is yes, Illinois recognizes the validity of the marriage.
However, this rule merely provides recognition and does not constitute a recognition of the couple’s relationship as a common law marriage within Illinois. As long as at least one of the two spouses is a resident of Illinois, domicile requirements are met. If neither spouse, nor the couple, is domiciled in Illinois, Illinois does not have jurisdiction over the matter because there isn’t a sufficient minimum presence in the State of Illinois.
Why Illinois Legal Advice is Critical for Unmarried Couples
Understanding Common Law Marriage in Illinois: Key Facts and Myths
Many couples choose to simply cohabitate rather than to marry. To some people being married is a religious or personal choice. To others, it poses a practical problem in terms of the tax brackets they would fall into or has to do with how their estate plan has been drafted . Though common law marriage is no longer legal as it was in Illinois, unmarried couples do not have any protections like those for married couples. While Illinois law recognizes certain other forms such as civil unions, common law marriages dating prior to 1/1/2011 continue to be recognized in Illinois. Where it gets a little tricky, is determining when unmarried couples have acquired rights and responsibilities to one another. So, legal advice is always prudent.