An Overview of Common Law Marriage in Maryland: Is it Allowed?

What Exactly is Common Law Marriage?

Common law marriage is not a registered type of relationship, but rather a marital status developed by court decisions and legal precedents over many centuries. It has its modern roots in the Statute of Westminster in 1285, which allowed for two people to be considered married without having gone through an official ceremony. In this arrangement, two people could enter into a marriage through mutual consent. This began a long history during which a number of different countries (or specific areas) adopted similar practices. Many countries around the world still recognize common law marriage, while others have abolished it altogether, requiring all marriages to be formally documented, regardless of how long the two people may have lived together as though they were married.
Since the early 1900s , recognition and legality of common law marriage in the United States has been governed by state legislatures, rather than through its previous common law origins. Currently, common law marriage is permitted in the District of Columbia and in certain U.S. states, but not in Maryland. For several reasons, many couples in states where common law marriage is permitted do not actively enter into a common law marriage. The most common reasons include the fact that once the marriage is ended in a divorce or separated, the division of property can become very complicated due to the lack of legal documents and precedes as seen in traditional marriages. Also, if circumstances involve one or both spouses mobilizing to a state that does not recognize common law marriage, some legal challenges could arise.

Common Law Marriage in Maryland: Recognition Status

Common Law Marriage is not recognized in Maryland. In other words, a person cannot hold themselves out to be in a common law marriage and later ask the State of Maryland, or the Federal Government, for recognition of a common law marriage. Maryland abolished common law marriages October 1, 1969. Any marriage prior to that date may be claimed to be a common law marriage in Maryland.
In order for a common law relationship to exist, the couple must have intended to be married, must hold themselves out to be married, and there are other requirements. Many people mistakenly believe that if you live together, you are married. You’re not. Most people are aware that there is a requirement of cohabitation, but it really is just one factor. To be considered married, you must essentially hold yourselves out as a couple.

Effects of Non-Recognition in Maryland

Couples who believe they have been in a common law marriage face a myriad of consequences by living in a state that does not recognize it. In addition to common law marriage potentially affecting asset distribution and support obligations, refusal to recognize the relationship can negatively impact an otherwise beneficial relationship status, including tax benefits, estate planning, and immigration-based benefits. Refusal to acknowledge a common law spouse can also affect the options available to individuals when a relationship does not work out.
Estate planning is profoundly affected by the non-recognition of a common law marriage in Maryland. Many people who believe themselves to be married in a common law marriage do not complete a will despite the financial and legal protections this important document can provide. Maryland law decides who receives one’s property upon death in the absence of a will. Since cohabiting couples are not automatically treated as legal spouses, the inheritance scheme designed for legal spouses does not apply to those whom the state does not recognize as legally married. Because of this scheme, cohabiting couples are at risk that the state, rather than each other, will determine the disposition of their property upon the death of one of them. Without a will, the laws of intestacy dictate that property will pass first to your living children (including any children you share with your cohabiting partner), then to your parents, and then to your siblings. Additionally, common law spouses may receive no benefit from insurance coverage purchased by their live-in partners without having a will or named beneficiary because the common law union is not afforded the same presumption as a marriage. Equally significant are aspects of estate planning that may not be legally recognized by the state. For example, even if spouses are legally married, both may be barred from receiving a particular pension or retirement income until they are married for a period of time. Since Maryland does not recognize common law marriages, such a delay could result in otherwise entitled spouses losing significant income while waiting for recognition required by the plan. Similarly, common law spouses may find themselves barred from petitioning the Social Security Administration for their deceased partner’s benefits since Maryland does not consider them legally married.

Options for Unmarried Partners in Maryland

While common law marriage is not recognized in Maryland, there is still a mechanism for unmarried couples to protect their rights and negotiate agreements that will help recognize the validity of their relationships in certain areas of their lives. These laws include cohabitation agreements and domestic partnerships, depending on the nature of the relationship. Cohabitation agreements can help avoid litigation in the event of a separation and allow the couples to control the division of their assets. Although the agreement has limitations due to its nature (it cannot address child support/custody/visitation or be used as a substitute for spousal support) , the cohabitation agreement can aid in achieving the division of property that the couple desires if they separate and posses property together. A domestic partnership is limited to health care benefits and can help protect an individual’s employment based insurance from being taxed due to the addition of an unmarried partner. Maryland courts have had trouble determining whether private, private entity business insurance and pension benefits can be transferred to a domestic partner but this remains a possibility for businesses that choose to provide such benefits as the trends towards these benefits continue to grow.

Recognizing Common Law Marriages from Other States

Common law marriages entered into outside of Maryland are recognized in the state of Maryland. The State of Maryland adheres to the full faith and credit clause, Article IV, section 1 of the U.S. Constitution. Under the full faith and credit clause, a state is required to recognize the legal status of another state.
In 2010, the Maryland Court of Appeals held that because common law marriages are not illegal in Maryland, Maryland will give full faith and credit to common law marriages, provided that they were entered into in jurisdictions in which common law marriage is lawful.
A full faith and credit determination depends upon whether the marriage is lawful in the sister state. If the marriage was unlawful at the time of the marriage (note the dates) in the sister state, the court in Maryland will likely not recognize the same under the full faith and credit clause (particularly in one that has outlawed the practice of common law marriage).
As an example, in the District of Columbia, common law marriage is no longer permitted whereas Virginia does recognize common law marriage. Therefore, a couple entering into a common law marriage in Virginia will have their union recognized if they move to Maryland.
In short, a common law marriage entered into in a state in which common law marriage is lawful will be recognized as valid in Maryland.

How to Formalize a Union in the State of Maryland

If you are currently living as spouses without the legal benefit of marriage, be aware that you can become a legal married couple in Maryland under the law by following these steps:

1. Both parties must appear in person at a Circuit Court in Maryland or submit a joint application to obtain a marriage license.
2. Where one party is unable to attend the courthouse in person, the other party may submit an application with a notarized statement confirming the inability to appear before the office.

3 . You will need to provide proof of your identity with government issued ID (Driver’s License, Passport, etc.) and will be assigned a license number, which is valid for six months after application.

4. You and your soon-to-be legally recognized "spouse" will also need to be of sound mind and free to marry to obtain a marriage license.

Although Maryland does not recognize common law marriages, you still have the option of obtaining a court-sanctioned separation with the ability to divide your assets according to a written settlement agreement or mediated decision.