How Common Law Marriage is Defined
In the United States, a common law marriage is generally understood to exist when an unmarried couple has cohabited for a period of time in a way that suggests they intend to be married, and they agree they are married. A common law marriage does not require a license, a ceremony, or special wording to create . Generally, the types of issues courts will consider when determining whether or not a common law marriage exists, or existed, are whether the couple:
In the State of Washington, cohabitation of an unmarried couple is not sufficient, alone, to establish a marriage.
Common Law Marriage has no Formal Status in Washington State
Common law marriage is not recognized in the Washington State; in fact, any practice of a common law marriage by Washingtonians has been strictly outlawed since 1913. When Washington became one of the first states to discourage common law marriage and announce those rulings via a supreme court case that is frequently referred to, the ruling came in 1917. The case was In Re Burris, and in it, the Washington courts placed a huge emphasis on the fact that a couple must possess the "legal capacity" to enter into a legal marriage in the state of Washington. In other words, if a couple remains legally married to other spouses – no matter how long they have been waiting to get divorced – then they do not have the "capacity" to enter into yet another legal marriage.
In addition to this ruling, Washington courts have also since ruled that standing marriage has been deemed as mutually exclusive. Therefore, one spouse cannot contract with another spouse, even while married in another state. Even after the 1917 ruling, Washington state continued to experience an increase in common law marriages among its citizens. However, state lawmakers in 1971 made a conscious decision to forbid common law marriage by adopting Chapter 26, which specifically put into law that common-law marriages celebrated, created or entered into in the state of Washington are not legal.
Another major ruling by the Washington courts decreed in 1965 that establishes the fact that once a legal marriage has been created or vested, the termination of that union is accomplished through divorce. It is through this legal ruling that Washington courts stop and does not recognize common law marriages if a divorce is pending in a different state.
The History of Common Law Marriage in Washington State
Throughout most of the United States’ history—until the mid-19th century—marriage was largely a religious institution governed by church law. However, as the nation industrialized and its population increased, the social norms of marriage began to shift and lawmakers sought ways to catch up. In 1877, Alabama became the first state to abolish the requirement to have a marriage ceremony witnessed by a minister or judge. Instead, the state allowed couples to marry simply by "mutual consent accompanied by cohabitation." The concept of mutual consent requiring that both parties having the mental capacity to make the decision to marry and mutual agreement to regards each other as father and mother of any future children, as husband and wife, and with the intention of permanency. In practice, this allowed for the presumption of marriage to be created by long-term cohabitation; heterosexual couples who lived as spouses without the benefit of a marriage license. This, and the successful case law surrounding it, soon spread to neighboring states.
As a result of various factors, including the Great Depression, the number of states that accepted the common law notion of marriage in lieu of the traditional form would double by 1930. However, the subsequent decades saw significant social change. By the 1960s, the United States experienced a cultural revolution affecting many different aspects of society. Legislative and court reforms of the time legalized divorce for the first time in several states, and even in those that did not, more couples were willing than ever to end their marital relationships. Sex before marriage became commonplace and the use of birth control and abortion was well beginning to lose its stigma. Options for women in the workforce expanded and women increasingly began to marry later in life, if they married at all. All of these changes contributed to a decline in the validity of marriages relying on a presumption based on cohabitation, which resulted, in turn, in more states repealing their common law marriage laws or restricting the application of the laws dramatically. Today only nine states still recognize the concept as grounds for establishing a union as a valid marriage, in addition to District of Columbia.
Washington allowed common law marriage as recently as 1970, when the state Supreme Court ruled in Settlemier v. Settlemier that a marriage can be either ceremonious or non-ceremonious, and that common law marriage could confer the same legal rights as a ceremonial marriage. But a decade later, that court’s 1981 decision in In re Marriage of Blue ended Washington’s era as a common law marriage state. In Blue, the Court focused on the fact that the state Supreme Court’s ruling in Settlemier was actually based on language in the 1969 version of the Uniform Marriage and Divorce Act that was ultimately repealed. Based on the clear legislative intent, the Washington Supreme Court in Blue concluded that the common law marriage doctrine could not be found in Washington state law.
To prevent a loophole with regard to common law marriage, the Washington Legislature in 1984 passed RCW 26.04.150, which states that a third party asserting the existence of a marriage must produce the state-issued marriage certificate evidencing the existence of the marriage.
Behaviors that Replaced Common Law Marriage in Washington Overall
While Washington State does not recognize common law marriages, couples who seek the protections of marriage and the rights afforded by a legal union do have some recourse through other legal means. There are domestic partnerships and cohabitation agreements. Domestic partnerships confer similar rights and benefits to couples as would a traditional marriage , simply without the requirement of a legally binding ceremony. Cohabitation agreements can provide a way for non-married couples to assert various rights and benefits, as well as stipulate how issues such as child custody and property division should be handled during a separation or divorce. Cohabitation agreements can also provide a way to mitigate the pitfalls of separate property laws, which may be relevant to long-term cohabitation.
Alternatives to Getting Married in Washington
For those couples who have celebrated a common law marriage in named states and later moved to Washington State, it is important to know that Washington recognizes the validity of a common law marriage established in the state where it was created. However, in moving to Washington, those couples will be subject to the laws governing common law marriages in Washington for purposes of property rights. In other words, while Washington will recognize the validity of an out-of-state common law marriage, property rights will be determined in accordance with Washington’s statutory requirements. With regard to the issue of divorce, it is important to understand that Washington law makes no provision for obtaining a divorce based upon a common law marriage. Instead, the parties would be required to legally marry in order to obtain a divorce or separated status.
What Couples Need to Know about Moving to Washington
Under any situation where you are concerned about your relationship status, I encourage you to contact a family law attorney for professional and personal advice. You may very well not have a common law marriage, even if you are under the circumstances that the state of Washington may recognize as a common law marriage, but it is always prudent to consult with a lawyer to get the "cold, hard facts" on the issue which answers all your questions.
The following are some resources for legal advice:
1 . Maralyn McAtomney at Davis Wright Tremaine in Seattle has been very kind to give me her input on this topic.
2. For clarity on how a common law marriage affects military spouses, please read the website of the Directorate of Legal Services from your service branch.
3. Law firms and solo lawyers dedicated to family law can be found on a website such as Martindale. Quite frequently you can also get free legal advice and clinics through legal aid organizations.