Within the legal landscape, common law marriage has been one of the more intricate, frustrating concepts both personally, as you have disputes about who is married and who is not. You may have a family dispute about an estate. You may have a contract dispute, e.g. were you both on the deed and/or mortgage for real estate that was neither party’s home. And then there are the tax issues. The first move in figuring out what the tax effect may be is determining whether you are married under the law.
A common law marriage is one in which a couple is legally recognized as being married without the need for a civil or religious ceremony. This means that the couple is considered lawfully entangled on the basis of their conduct alone. The parties must have the requisite capacity to marry, such as age and psychological fitness, and they must have both intended to be married and evidenced that intent. However, would-be spouses often run into trouble when trying to adjudicate the second-to-last element: intent. Up until very recently, a lot of couples did not believe that they were required to disclose the status of their relationship outside of the context of their home. Proponents of common law marriage advocate that their privacy should be respected in their decision to keep the status of their relationship out of the public eye, while detractors assert that a formal commitment is necessary to govern spousal interests, rights, and responsibilities.
In contemporary Virginia, the debate over does virginia recognize common law marriage continues in new iterations. The tradition of common law marriage is thought to have originated in 1215 in England, when the Magna Carta stipulated that women generally could not be forced to marry. In the mid-1800s, the tradition was brought to America in what most states now deem an outdated and inappropriate form. Common law marriage in its traditional conception would bestow the rights and obligations of traditional marriage on people who had not actually formally married. In Virginia, however, common law marriage is strictly proscribed.
Virginia did historically though have common law marriage. Today, however, Virginia does not recognize common law marriage for non-legislative as well as legislative reasons. Virginia does not recognize common law marriage, where the parties to a union have not obtained a regular marriage license, e.g. filed an application for a marriage license, appeared before a clerk of court with whom they filed an application for a marriage license, obtained a marriage license (and its issuance is recorded), and satisfied the State marital law requirements that were imposed at that time. In other words, Virginia never adopted common law marriage in its traditional form.
Today, the fact that Virginia does not acknowledge same-sex marriage is a legislative issue. Regardless of your opinion about common law marriage, all can agree that states have the authority to mandate the status of relationships. From this legislative framework, we can see that marriage is a status granted, regulated, and dissolved by the State. Given this judicial foundation, it seems logical to conclude that the State would be the entity that determines the validity of marriages. That is, in Virginia, the State recognizes only those marriages that have been registered and recorded with the State. Further, if couples wish to be deemed married in another State or jurisdiction, then they must abide by that State’s or jurisdiction’s requirements for a valid marriage.
Common law marriage is the subject of much disagreement. In Virginia, the hot topic for a long time has been whether that state recognizes common law marriage, given that common law marriage is variedly recognized. Common law marriage is acknowledged in most states, though under much-different approaches and conditions. And, in some states, the definition of a common law marriage is quite different.
For more information on marriage laws, you can visit the Nolo website.