Legitimacy of Common Law Marriage in Illinois

What is Common Law Marriage

Common law marriage is a legally recognized union between two individuals who are not lawfully married under Illinois law. The origins of common law marriage date back to medieval England, where an ecclesiastical as opposed to civil law governed matrimony. Such "spiritual contracts" were generally governed by canon law, comprised of certain elements: the competence of both parties to consent, mutual consent, and consummation of the relationship. Following the Reformation , England increasingly came to recognize common law marriages, a recognition which has continued to this day, with the present day law requiring cohabitation and the intent to continue indefinitely as prerequisites for such marriage, in addition to the requisite consent.
The concept migrated over to the United States, and has remained a fixture in some states, such as New Hampshire, South Carolina, and Pennsylvania. States generally either recognize common law marriage as a valid form of matrimony or they do not; Illinois does not.

Illinois and Common Law Marriage

Illinois Statute does not provide for common law marriage. Common law marriage has never been recognized in Illinois. In 1963 the Illinois legislature adopted a statute which provided that an invalid or improperly solemnized marriage may only be validated by a court order. The pertinent part of that Act provides as follows:
In light of the above, it is clear that the enactment of this Act abrogated and superseded all legislation previously giving legal effect to marriages by allowing those marriages that were performed under a license of a county clerk to be valid even if the license was defective, even if no marriage ceremony was held, or even if the ceremony was not performed in compliance with the marriage licensing and solomnization requirements, must have eliminated any possible legislative basis for validation of common law marriage. The legislature in 1963 intended to abrogate all of the common law regarding marriage.
For many years, the Illinois legislature has repeatedly considered adoption of a statute recognizing common law marriages but has failed to pass such a statute. The last attempt was in 1980 when the Senate passed the bill recognizing common law marriages but the House failed to pass it. At one time, the Illinois Attorney General’s office has opined in a published opinion that common law marriages were invalid in Illinois, but a concise, clear, and well-reasoned opinion reversed that original opinion and has become the final say on the matter.
In an opinion signed by attorneys from both the Illinois Attorney General’s office and the Illinois Department of Human Services, it was clearly set out that based on the repeal of the common law rule as to marriage the Illinois general assembly has made every effort to include in our statutes any rules as they relate to marriage. It is apparent that the legislature and the courts have abandoned the common law rule. Courts and parties may not create or recognize common law marriage.
In 1987, the Attorney General issued an opinion which stated that although Illinois does not recognize common law marriage, a common law marriage created in a jurisdiction where such marriages are valid may be honored in Illinois. Once again in 1988 and 1989, the Attorney General re-inforced this opinion holding that common law marriage may be recognized in Illinois but only if created in a jurisdiction where common law marriage is recognized. This is still the law in Illinois.

Common Law Alternatives in Illinois

An alternative to common law marriage in Illinois is to enter into a civil union. Civil unions grant same-sex and different-sex couples the legal protections of marriage. In order to be able to enter into a civil union couples must be age 18 or over, and they cannot be related to each other in any way that would prohibit marriage.
Many couples choose civil unions and domestic partnerships because they offer many of the same legal rights as marriage. Benefits of civil unions can include health insurance coverage, hospital visitation rights and estate tax benefits. Unmarried partners can register with the Illinois Department of Health to obtain hospital visitation rights if the hospital does not recognize their relationship.
Another option is a domestic partnership. Only some local governments recognize local domestic partnerships, but the couple may be granted the same benefits that are available to those in a civil union. Domestic partnerships are not recognized under Illinois state law, but a couple may be able to enter into a domestic partnership if they are eligible to marry, but choose not to. Eligibility requirements for a domestic partnership vary by municipality.
The Supreme Court has held that states have the right to define civil marriage as between one man and one woman, and the Illinois Supreme Court upheld that ruling in 2014.

Without Marriage: Rights & Responsibilities

Indeed, married couples in Illinois are given specific rights when it comes to hospital visits. However, unmarried couples do not have to get completely caught off guard. An unmarried couple – as of September 2016 – can grant the other person access as their "power of attorney" should something happen that would require the other person to make medical and healthcare decisions. Still, if you and your partner want equal rights such as filing taxes together, there are a variety of other ways to achieve this without legally tying the knot.
Cohabitation agreements can help govern rights outside of marriage. Your cohabitation agreement can state how any assets are divided , how any children will be raised, etc. Anything that is legal in a traditional marriage can be written into this – with the difference being that you’ll be living it out without the ability of a divorce court to enforce it if you separate. Additionally, joint ownership may be the simplest way to ensure both parties have requisite rights over financial assets. Joint credit, bank accounts, and property ownership are all ways to protect your finances, even if you’re not legally married.

Moving to Illinois or Moving On from Illinois

When a couple moves to or from a state that recognizes common law marriage but Illinois does not, complexities arise. A marriage would not be valid in Illinois under Illinois law because Illinois has never recognized common law marriage. However, if the couple had satisfied the criteria for a common law marriage in the other state prior to moving but the marriage would not have been valid under Illinois law, problems may occur when they try to make legal decisions such as filing taxes, changing titles on retirement accounts and property, or divesting property in anticipation of divorce.
For example, when moving from a common law state, the couple should obtain a new marriage license prior to moving. Simply because a court recognizes the marriage in the other state, this does not mean that Illinois will recognize the marriage.
A similar problem may occur with couples moving back to a common law state that recognizes their marriage. They may try to get a divorce in the state where the divorce is less expensive. If the couple did not obtain a new marriage license prior to moving to fall under the laws of Illinois, Illinois may not recognize the couple. Thus, the couple is in limbo until they can be recognized by Illinois as married.
There are practical considerations for unmarried couples. When the decision is made to move, it is best to consult an attorney to make sure that, regardless of the state, you will be protected in the event of a breakup.

Protecting Your Relationship Legally

If you are cohabitating with your partner and you consider yourselves married by common law, you need to protect your legal rights. Enforceable rights under Illinois law do not come from simply being married "by common law." Instead, there are things that you need to do in order to have legal protections for your relationship. For instance, if you become sick or incapacitated , each of you needs appropriate powers of attorney naming the other as the agent. Both of you need wills, each leaving your estate the way that you want. You also need one or more estate plans to set out how your jointly-operated economic life will continue after one of you dies.
To some extent all of this takes time and money. However, without these tools, your relationship is not well protected.