Common Law Marriage in Washington D.C.: Facts and Fallacies

What Constitutes a Common Law Marriage?

Common law marriage is, very simply put, a marriage which may exist even if there is no license or formal ceremony. A common law marriage is a non-ceremonial and informal relationship between two people that, according to the laws of the state they lived in, recognizes them as married. The origins of when common law marriage first originated is believed to have begun as early as 1318 in England and related to land tenure issues. This legal concept, thus, applied mainly to relationships that were developed as a result of no other recourse based on land tenure . Various American colonies prohibited common law marriage and therefore prevailing law in most of the eastern states held that there was no such thing as a common law marriage. However, common law marriage rights later began to evolve into state law. Being one of only ten states that recognize it is considered a point of pride for our nation’s capital. The other states include Alabama, Colorado, Iowa, Kansas, Montana, New Jersey, Rhode Island and Texas. Over the years, certain other states have done away with it completely while a few others allow it under certain circumstances.

Recognition of Common Law Marriage in D.C

Common Law Marriage Recognition in Washington D.C.
Washington D.C. recognizes common law marriages. The status has long been accepted in the jurisdiction. As of 2016, the District Court in Washington, D.C. held that cohabiting couples regardless of sexual orientation could create a domestic partnership that is afforded legal recognition.
In 2009, the Washington, D.C. Council passed a law allowing for a form of domestic partnership for same-sex and different-sex couples who choose not to marry. Both sets of partners have the same rights and responsibilities. To register, partners must be 18 years of age or older, live together in a "committed, mutually dependent relationship," and file an application with the Register of Equal Relationships office. There are no residency requirements. The document must be filed with the District of Columbia’s Department of Health.

Legal Prerequisites

It is the intent to create a marriage that will be central to the determination of whether parties have entered into a common law marriage in the District of Columbia. However, intent is determined by a variety of objective factors. These include cohabitation, holding each other out as married in front of family and friends, as well as in the greater community, and the use of a common surname. Importantly, parties must cohabitate for a sufficient period of time to build common indicia of intent to marry. The couple need not expressly state they intend to marry, the intent can be implied from the actions of the parties.
In terms of cohabitation, courts look at the length of time that the couple has lived together. The District has no set prescribed amount of time that the parties must cohabitate in order to create a common law marriage. However, courts have held that a holding out as a married couple lends significant weight to a finding of cohabitation. A strong indicator of cohabitation would be a party’s use of the other party’s surname. Cohabitation without a sufficient period of time has been found not to give rise to a common law marriage. For instance, the Court of Appeals for the District of Columbia found that two years of living together was insufficient to show cohabitation and manifest intent. Weigum v. Weigum, 489 A.2d 1121 (D.C. Ct. App. 1985). Likewise, a mere five months of cohabitation without additional indicia of intent is insufficient. Brown v. Brown, 879 F.2d 1389 (D.C. Ct. App. 1989). Further, the fact that relatives knew of the relationship is not enough. Smith v. Dist. of Columbia, 418 A.2d 1005 (D.C. Ct. App. 1980). The degree and amount of holding out is also key.
Because common law marriages are closely examined and require a high degree of intent, the Courts in D.C. have held that parties who maintain separate residences can enter into a common law marriage in D.C. (Niels v. Niels, 662 A.2d 1324 (D.C. Ct. App. 1995)). Further, parties need not make representations of being married in a private or all-encompassing setting. Rather, representations to a small group of people may be sufficient. Gibbs v. Gibbs, 564 A.2d 795 (D.C. Ct. App. 1989).

Common Law Marriage Alternatives

Many people who are living together in Washington DC do not understand the law with regard to being common law married. Fortunately, there are a number of alternatives they can consider to the relationship. Domestic Partnership was pioneered in San Francisco and allowed same sex couples a way to gain access to the same benefits that come with marriage. In Washington DC, it is defined as an arrangement where two people agree to share their lives but are not legally married. The Relationship Recognition Amendment Act of 2010 allows employers to provide health care and other benefits to couples who have registered as domestic partners.
In 2011, the Civil Union and Equality Amendment Act of 2010 also authorized civil unions in Washington DC. A civil union gives LGBT couples the ability to extend the same benefits of marriage to a different kind of relationship, and provides limited rights and privileges on par with those (marriage) which apply to heterosexual couples. Civil unions do not give the full rights of marriage, but it may be worth the effort for some couples. It should be clearly understood that these provisions do not extend to heterosexual couples.
The advantage of registering a domestic partnership or civil union is that it may allow you to have the same insurance and other benefits through your employer that you otherwise would have if you were legally married. Further, it provides a legal structure which can be useful for filing taxes jointly and protecting your interest should you separate. The downside is that the other partner would not be entitled to survivor benefits that are automatically granted to spouses.

Effects on Entitlements and Responsibilities

A common law marriage in Washington, D.C. can have a profound impact on many facets of married life. The legal rights and obligations that come with this status are extensive and all-encompassing.
In D.C., property rights are not particularly affected by having a common law spouse. Property acquired during marriage is subject to equitable distribution, as is property that increased in value during the marriage. This is similar to the way those issues are treated in common law marriages.
Inheritance tends to be affected more severely in the case of common law marriages . Inheritance laws in D.C. make a distinction between those whom the deceased had as a spouse at the time of death, and those whom the deceased had as a common law spouse. The same is true of obligations related to receiving an inheritance.
With regard to spousal support, common law spouses are treated the same as legally married spouses before the law. The same types of issues must be overcome to qualify for spousal support, so this is not a factor where a distinction is made between common law and traditional marriages.

Terminating a Common Law Union in D.C

Dissolving a common law marriage in the Washington D.C.
Ending a common law marriage in Washington D.C. is not quite as simple as simply separating and moving on. Under the law, common law couples must still go through a divorce process to end their marital relationship. Just like conventional marriages, a couple intending to separate but also intending to remain legally married must file for divorce from one another. However, Washington D.C. allows common law couples to file for divorce with only one spouse providing a sworn statement confirming the marriage existed. If the other spouse does not respond to confirm or deny the divorce proceedings, the court will assume the marriage existed for the sole purpose of the divorce. Providing a sworn statement confirming the existence of a marriage might sound fairly simple, but it’s not without its complications. For one thing, if one spouse is missing and hasn’t taken the time to legally file for divorce, it’s somewhat difficult to scan the city for the other missing person and get them to respond to your inquiry in a timely manner. For another thing, some people just don’t accept the fact that they are married and file for divorce in order to be free and clear of the other person. Some common law marriages dissolve, and others simply don’t. For those that drag out over a period of time, it can become extremely complicated to cut ties without dragging up past dispute, which is another reason why most common law couples end up filing a legal separation rather than completely dissolving their union. In short, it’s quite difficult to prove the existence of a common law marriage, but once a couple is able to do so, desiring a legal separation could be difficult to hinder.

Common Misunderstandings

There are numerous myths and misconceptions that surround common law marriage. It is important to clarify these misconceptions to help parties understand their rights and obligations in the event of separation or divorce. One of the most common myths is that parties cannot change their minds about being married once they agree to marry. The fact is that, although there may be ways to prevent or deter the natural impulse to be married once one has agreed to it, parties can and do change their minds about the permanence of their relationship and their desire to marry all the time. Their decisions about a marriage or cohabitation are ultimately that – their decisions. These choices are not bound by contract unless the parties have entered into a binding contract. Another common misconception is that parties must show an intent to marry or other facts that support a contract theory. Intent is required to establish the existence of a contractual obligation between two parties. However, that obligation does not need to include an irrevocable commitment to be together for the rest of their lives . In essence, intent encompasses any and all obligations that two parties wish to place upon one another. Therefore, intent is not actually required to establish a contract concerning the marriage; rather, it would be more accurate to say that intent is required to establish other aspects of any contractual agreement between two parties. This misconception leads to another myth: common law marriage is based entirely on intent. The truth is that common law marriage is not based solely on intent. In addition to intent, continued and exclusive cohabitation for a period of time is also required to establish a marriage and/or contractual obligations. This additional requirement is specified in statutory law. A third common myth is that a common law marriage can be created and/or avoided by signing a pre- or postnuptial agreement. Although there are many benefits and purposes for such pre- and postnuptial agreements, they cannot avoid the requirements of statutory law concerning common law marriages.