Does Missouri recognize common law marriage?

Jun 28, 2015 | Family Law

Clients frequently ask whether Missouri recognizes common law marriage. The answer is, “it depends.” What is common law marriage? In certain circumstances, in specific states, it may be possible for a couple to enter into a marriage without a formal ceremony or marriage license.

A common misconception is that simply “living together” for a certain period of time may be grounds for a common law marriage. While each state is different, the most common elements of a common law marriage are as follows. First, the couple must mutually intend to enter into a marriage. Second, the couple must co-habit; the amount of time differs by state. Third, the couple must hold out as husband and wife. “Holding out” means representing to the community, family, and others that the couple is husband and wife. For instance, the couple might refer to each other as “husband” and “wife,” the wife might take the husband’s last name, or the couple might file a joint tax return. As with all marriages, the husband and wife must have the capacity to marry (e.g. age, mental state, etc.).

Today, it is not possible to create a common law marriage in Missouri. The State of Missouri abolished common law marriage in 1921.

However, a few states continue to recognize common law marriage. Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, and Utah recognize common law marriage outright. Georgia, Idaho, New Hampshire, Oklahoma, Ohio, and Pennsylvania may recognize common law marriage in certain circumstances (most of these states have recently abolished common law marriage and the question turns on whether the common law marriage was in existence before the change in the law).

Importantly, the full faith and credit clause of the United States Constitution requires that each state respect the “public acts, records, and judicial proceedings of every other state.” Full faith and credit is the concept that allows a Missouri resident to use a Missouri driver’s license to drive in any other state even though the Missouri resident has not been licensed to drive in any other state. Accordingly, if a couple enters into a valid common law marriage in a state that recognizes common law marriage, Missouri is compelled to recognize the marriage.

It is important to note that, while common law marriage continues to exist, there is no such thing as a common law divorce. A couple that is married conventionally or by common law is required to go through the process of obtaining a judgment dissolving the marriage.

If you have additional questions about marriage, call or come visit the family law attorneys at the Paul Law Firm. Consultations are always free!

Check out the Missouri Bar’s Family Law Resource Guide here.

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