Neighbor Law: Be a Smart “Fiancé”

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© Alice Neff Lucan

There is no recognition for a common law marriage in Virginia, so unmarried couples who are living together never acquire any special legal rights, as may happen in other states. Under the law in the Commonwealth, you remain two separate people, so one is not responsible for the other’s contracts, nor does one owe the other support. Homes, cars and valuables do not become joint property without a written agreement to that effect. One person does not have the obligation to care for the other, as in a marriage. And on the death of one, nothing goes to the other unless there is a proper will designating specific property for inheritance for the “fiancé” by name.

Eleven states recognize a common law marriage, but with limitations or special conditions.  If a couple achieves a recognized common law marriage in another state, Virginia will honor that as a legal marriage. If a couple in a genuine common law marriage moved from Capitol Hill in D.C. to Free Union (puns intended), Virginia would accept their marriage as legal. In fact, if such a couple wanted to end their marriage, they would have to go through divorce proceedings.

Unlike Virginia, the District of Columbia recognizes common law marriages if the couple meets three conditions: they live together, they tell other people they are married and act as if they are married. “In order to have a valid common law marriage, a couple must intend to be married, must live together for a significant period of time, and must hold themselves out as a married couple.” No period of years is required. “[T]he evidence must show ‘that the parties cohabited as husband and wife in good faith, that is, that the cohabitation followed an express mutual agreement to be husband and wife.”’

These definitions come from judges’ opinions, not from the D.C. Code, thus it is a “common law” matter. Judges’ opinions and customary practice are all there is by way of definition.

Nonetheless, it should be clear that living together is not enough. Housemates and roommates do not form common law marriages in Washington, D.C. and living under the same roof is probably not enough in the other common-law jurisdictions.

It should also be clear that recognized common law marriages are legitimate, legal marriages, fully honored by the Commonwealth of Virginia when they are proved. And that’s one of the troubles with a common law marriage. Since there is no certificate or registration with any state, when there is a legal question (such as a will probate), such marriages have to be proved, literally, with evidence as in most court proceedings. What did the couple intend? Are there children? How long have/had they been together? Was there another marriage and was it dissolved? And so forth.

If you’re thinking of making it formal in Virginia, a circuit court judge authorizes people who may perform civil ceremonies. Pastors who are ordained and regularly associated with a church must also apply for licenses to perform marriages.

If you’re just curious about the law affecting legal marriages in Virginia, this address will take you to a pamphlet written by the Virginia State Bar Association: www.vsb.org/site/publications/marriage-in-virginia.

However, if you have a personal legal problem that concerns marriage, consult with a Virginia lawyer who specializes in this law. Do not rely on this column for legal advice.

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