If the bride and groom didn’t go to the court and get a license to marry, and if they didn’t stand before the preacher and say “I do,” could they still be legally married?
The answer is “maybe,” depending on where they were and what year it was.
Common-law marriages — unless specifically prohibited by state law — were just as binding and real as those with formal ceremonies. Disgruntled relatives often have challenged these marriages in civil-law suits. In those cases, the courts consistently have ruled that if the man and woman intended to be married, they cohabitated and assumed marital duties and obligations, then they were married as if they had joined through a license and ceremony.
It isn’t unusual to hear assertions that if a couple signed a motel ledger as “Mr. and Mrs.” and spent a weekend under that pretense, then they had a common-law marriage. Others project that if you live together for seven years you’re married. Neither is so.
Legal recognition of a common-law marriage as a binding one depended largely on the reputation a couple had in the community. Did the couple live together and do what the community expected of any married couple? Did the couple represent themselves to others as being married? Did they have children that they nurtured? Did they work hard to support their family and did they live as decent people within the confines of the law?
You may never know if your ancestors had a common-law marriage. If you don’t find a marriage record in a place where you would expect to find it, however, it makes sense to consider that they never formally married. But if you find records of them doing things their neighbors did — buying land, appearing in a census as an obvious family unit, being buried together in the family cemetery, etc. — they certainly are meeting the requirements of “being married.”
The District of Columbia and Alabama, Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas and Utah currently recognize common-law marriages. Georgia (if married before Jan. 1, 1997), Idaho (if married before Jan. 1, 1996), New Hampshire (for inheritance purposes only), Ohio (if married before Oct. 10, 1991) and Pennsylvania (if married before Jan. 1, 2005) have limitations on recognizing non-ceremonial marriages.
But it really doesn’t matter what the law is today — the important point for a genealogist to determine is whether common-law marriages were recognized at the time the ancestor in question was “being married.” Researchers can make this determination by visiting a law library and finding the specific state’s laws for the time frame in question.
If your ancestors were divorced, that does not prove they had a formal or ceremonial marriage. If the law recognizes a common-law marriage as a valid one, then a divorce is required to end it. There is no such thing as a common-law divorce, obtained by simply agreeing to end the marriage.
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The National Genealogical Society has announced it will hold its annual conference in Fort Lauderdale in May 2016. C. Ann Staley of Jacksonville will chair the event. Staley is a veteran conference chair for the Florida State Genealogical Society. The society has not released additional details on the conference.
Sharon Tate Moody is a board-certified genealogist. Send your methodology questions and event announcements to her at firstname.lastname@example.org. She regrets she is unable to assist with personal research and cannot respond to requests for locating or researching individuals. Past Heritage Hunting columns are available at TBO.com, search words “Sharon Tate Moody.”