What is Common Law Marriage?

Common law marriage is a legal concept under which an informal marriage can be recognized. It differs from traditional marriage under which a couple enters into a contract and satisfies legal requirements such as obtaining a marriage license and having a ceremony. In contrast, a common law couple generally does not go through the same marriage rituals.
In order for a marriage to be considered a common law marriage, certain criteria may have to met. Parties must have the legal capacity to contract marriage and mutual consent or agreement.
Certain states do not allow common law marriage . Kansas is one of those states. Kansas law recognizes common law marriages established in other states which permit the marriage.
Common law marriage goes back to England during the Middle Ages. It was intended to eliminate the burdens of religious marriage. An example of a potential common law couple would involve a young couple who live together for many years, sharing households, finances and children. They decide that they are married in all but law. When one spouse dies, the other steps forward with the common law relationship, and claims his or her interest in the deceased’s estate.

Kansas’ Respect for Common Law Marriage

Being a little different than most other states, Kansas does not require a couple to live together for a specific time period before getting married. Sections 23-2501 and 23-2502 of the Kansas Statutes Annotated state that a common law marriage requires both parties to manage to openly express an intent to "hereby marry" rather than exactly saying the words "hereby marry." This essentially means that the couple must have a mutual understanding between each other and with other people surrounding them that they are, in fact, in a marriage or that they intend on entering into a marriage. When proof of a common law marriage is needed, the two people should be able to present evidence such as the use of the same last name, running joint accounts and investments, having joint real property, and having joint tax returns to show that they have indeed lived together as a married couple.

Requirements to Establish Common Law Marriage in Kansas

In Kansas, there are several elements necessary to constitute a common law marriage, including the intent and consent of both parties to marry and proof of cohabitation. In order for a common law marriage to exist, the following four elements must be proven. First, both parties must be of legal age. Second, the parties must mutually consent to be married. Third, the couple must cohabitate. Cohabitation is physical presence together and mutual housekeeping. Cohabitation does not necessarily require a joint residence, resulting in people cohabitating for a considerable period of time yet still living in separate locations. Finally, the parties must publicly represent themselves to be married. Two or more of these elements, standing by themselves, do not ensure that the parties have consented to be married.
Since the 1862 ruling in Bennett v. Bennett, the Kansas statute granting most married couples the same rights and benefits applied to common law marriages in the same way, resulting in relatively equal treatment. However, not everyone recognized such equality. The dissenting opinion in Bennett v. Bennett argued that the requirements of a formal marriage were "more desirable than the common law marriage, both as a means of detection of fictitious and fraudulent marriages and in their more complete protection of the rights of the spouse and heir." In 1977, the advance of technology, specifically birth control, and the women’s movement those advancements came with, indicated the decreasing need for common law marriage, thus causing the Kansas bill passed authorizing legislature to disallow common law marriages to take effect on January 1, 1979.

Rights and Responsibilities

Common law marriage in Kansas comes with both legal rights and requirements that spouses must adhere to. These are as follows:
• Property: All marital property acquired during the course of a common law marriage is subject to equitable division upon separation. Just as is the case with formally registered marriages, the property must be divided in a manner that is fair to both parties, which does not necessarily mean the property would be divided 50/50.
• Inheritance: Individuals in common law marriages in Kansas are given the same inheritance rights as those who have participated in a formal marriage ceremony. Therefore, if one spouse were to pass away, the survivor would be entitled to the decedent’s estate as if they were legally married – unless there was a will or other estate planning document that stated otherwise.
• Forced separation: Under Kansas law, a couple does not have the right to unilaterally separate from one another, nor can they leave their common law spouse without a valid reason. If one spouse does move out or discontinue the marriage, they will still have a legal obligation to support the other spouse. If your common law spouse is leaving the marriage against your wishes, it is recommended that you consult with an experienced Kansas divorce attorney.
Because common law marriages are somewhat less common than traditional legal marriages, the Kansas courts pay particular attention to issues of cohabitation, public acknowledgement and intent to marry before recognizing a couple as common law spouses. Those in non-traditional relationships should take special care to protect themselves legally should they ever decide to move forward with a formal divorce.

Proving Common Law Marriage

Proving a common law marriage involves demonstrating the following five elements:
The marriage relationship.
Although no formal marriage license is required, a common law union must still involve a relationship consistent with a lawful marriage. For instance, where either party is married to someone else, or where a party fails to have capacity for marriage, a marriage is not created.
Mutual agreement or consent.
For a common law marriage to exist, both parties must intend to be married and agree to be married. Consistent with this, one of the parties must not be under duress or other coercion to enter into the marriage. A common law marriage created when a party was under duress is not valid, and will not be enforced.
Mutual assumption of a marital relationship.
A valid common law relationship requires that the parties hold themselves out to the public as being married. In other words , the parties must: (1) actually believe they are married; and (2) act as a married couple in the eyes of the community. For instance, if a husband and wife do not live together as husband and wife after agreeing to marry, they may be unable to establish that a common law marriage existed.
Mutual cohabitation.
As noted above, the parties must generally intend and agree to live together as married individuals, maintaining their marital relationship.
Mutual representation as being married.
This requirement looks closely at the representations of the parties to the public or third parties. In Kansas, "mutual representation" may also refer to a party’s intent to be considered married, i.e., an express or implied claim to others that the parties are married.
Obtaining proof of a common law marriage often creates complex legal issues. Whether through testimony or documentary evidence, there are a variety of ways to establish the existence of a common law marriage. Some common forms of evidence include:

Terminating Common Law Marriage

Dissolving a common law marriage in Kansas begins with the filing of a petition in district court. Pursuant to K.S.A. 23-1801, the dissolution is governed by Article 180 of the Kansas Statutes Annotated. The court will then divide property acquired during the marriage and establish custody of any minor children. There is a compulsory Jacksonville mediation provision which may exclude discovery conducted by either party prior to mediation.
The process is very similar to a traditional divorce, although there are notable differences. Upon the finding that a common law relationship existed you may face certain roadblocks. One issue that comes up from time to time is a person believes they were in a common law marriage and once that situation is dissolved the other spouse finds they were actually married. In this situation you would then need to dissolve the legal relationship and divide property.
The final decree will terminate your status as a married person.

Common Myths

Many individuals continue to believe that living together for one year automatically constitutes a common law marriage. This common myth continues to surface. Kansas does not recognize common law marriage. Kansas law disallows common law marriages which commenced or existed after " July 1, 1862." All common law marriages entered into prior to that date are considered invalid and without legal effect. The Kansas Legislature has made it clear that no common law marriages may exist in Kansas. Kansas Statutes Annotated § 23-2501(d) (Supp. 1987). Therefore, although a common law marriage may have been recognized in other states, a common law marriage is not valid in Kansas if its existence occurred after the enactment of K.S.A. 23-2501(d).
Another common misconception is that if people cohabit together for a certain period of time , perhaps seven years, they will be considered as married. Clearly, this is not correct. There is no seven-year rule. The Kansas Legislature once allowed spouses of seven years to simply move away and one of the spouses would remain obligated to support the other spouse. But that provision was repealed in 1862. A marriage requires more than mere cohabitation.
Another misconception is that individuals in a common law marriage can obtain a divorce in District Court in Kansas. When a valid common law marriage is established, it may be terminated by a court having the appropriate jurisdiction under the Uniform Reciprocal Enforcement of Support Act. Further, termination can be granted by an act where the parties no longer live together or establish a residence in another state. Lastly, termination can occur upon the death of a spouse.