Common law marriage -- Can you be married without knowing it?

A warm, sunny beach and a man proposes marriage to a woman.  He tells her that since they have been living together for four years they will be married anyway in three years because it will be a common law marriage so they might as well do it now.  She said yes.

This story was told to me by a friend.  It is romantic and funny.  It is also based on a myth.  

In Washington State and most others, there is no such thing as common law marriage.

Never has been.  Only 16 states have common law marriage and most are phasing it out.  If you really have a need to know, google it.  The above story happened in California and California also does not have common law marriage. 

A question I get asked frequently in social and business networking situations is: 

How many years does it take to have a common law marriage in Washington State? 

Folks often look incredulous when I tell them there is no such thing. because they just know it is true because their friend's hairdresser's cousin said so.  (I get a lot of legal opinions from friend's hairdresser's cousin)  

But like most legal questions, the answer isn't always that simple.  While there has never been common law marriage in this state there are a couple of situations in which a couple might find they have some obligation to each other that are similar to being married.  I generally ask the person if they are just curious or if they have some genuine concerns.  Are they living with someone?  Do they own property together?  In business together?  This is where the conversation is way beyond the ordinary cocktail party small talk.  The person may find a "marriage like" relationship that subjects both parties to some legal consequences.

A committed intimate relationship  (CIR)

Currently there is no specific statute regarding CIR but there is sufficient legal precedent for courts finding that a couple has a legal obligation to each other similar to marriage.  (With one very important difference)

The factors for a CIR are:

  • continuous cohabitation
  • the length of the relationship
  • the purpose of the relationship
  • whether the couple pooled resources and servicesfor joint projects, and
  • the intent of the parties.

Note:  If either of the parties is already married, you cannot have a CIR.  

Thus under the theory of CIR, a court can divide property.  The three pronged test a court uses is:

  • determine whether a “meretricous” relationship existed (see above)
  • evaluate the interest each party has in the property acquired during the relationship, and
  • make a just and equitable (fair) distribution of the property.

Complicated and confusing?  It sure is.  

A CIR does not obligate either party to support the other

This is a very important distinction.  There is no support (alimony) in a CIR.  I know several people who were unpleasantly surprised to find that even after living together for twenty years or more they were not entitled to any support.  

What about child support?

Whenever a couple has a child, there is a support obligation. Married, unmarried or CIR.  Child support is according to the state guidelines.  

Can same sex couples have a CIR?

Yes.  Since Washington State has marriage equality the same rules apply to everyone.  

Can you have written agreements to protect both parties?

Not only can you, but you should.  What are your intentions?  What are your obligations to each other?  Spell it out.  Get it in writing.