Every so often, we have a question about common-law marriage. When I was growing up, I heard statements such as, “If you live together for two years, that makes you married by common law.” There were a number of things which could supposedly make you married by common law, according to what I’ll call “folk lore,” but the truth is, only the law and statutes control whether you are married by common law.
Before the Change in 1991
Before the law was changed to state that there would be no more common-law marriages, common-law marriages were created by “the facts” and “actions” or “cohabitation” and “reputation” of a couple. If a court were looking for the elements which would create the common-law marital relationship, the court would look to the intent of the parties and determine whether the parties, themselves, held themselves out to others and to the community, in general, as being husband and wife. Deeds to property, receipts for bills, registrations at schools, and other records made by the parties, in addition to statements made by the parties, would be considered. If they lived together as a “husband and wife” and held themselves out to be married, the common-law marriage was deemed to have been created.
Change to Common-Law Marriages in 1991
The law of Ohio was changed so that after October 10, 1991 there would be no more common-law marriages created in Ohio and the only marriages which could occur in Ohio had to be those created by or “solemnized” by a person authorized by Ohio statutes.
Ohio Revised Code section 3101.08 provides that if two people are not prohibited by law from marrying each other, a marriage can be created by, “An ordained or licensed minister of any religious society or congregation within this state who is licensed to solemnize marriages, a judge of a county court in accordance with section 1907.18 of the Revised Code, a judge of a municipal court in accordance with section 1901.14 of the Revised Code, a probate judge in accordance with section 2101.27 of the Revised Code, the mayor of a municipal corporation in any county in which such municipal corporation wholly or partly lies, the superintendent of the state school for the deaf, or any religious society in conformity with the rules of its church . . .”
The Current Law of Ohio Regarding Common-Law Marriage
Ohio Revised Code Section 3105.12 controls common-law marriage now.
This statute or law states that common-law marriages, from before October 10, 1991, can be recognized in Ohio, when there is proof of “cohabitation” and “reputation” of the marriage.
The statute goes on, however, to state that on October 10, 1991 and thereafter, common-law marriages are prohibited in Ohio and may be created only by someone authorized to perform a marriage (as referred to above). Those marriages occurring in Ohio before October 10, 1991, however, are still valid unless there has been a termination by divorce, death, dissolution, or annulment.
So, if a common-law marriage was valid before October 10, 1991, or was created in another state or country which recognizes the validity of that type of marriage, the marriage is still valid in Ohio though not created here. This also presupposes that there has been no termination by divorce, death, dissolution, or annulment.
Attempting to prove, in Ohio, a common-law marriage from another state or county would obviously involve presenting the law of that state or country to the courts in Ohio and possibly involve presentation of actual court decisions from that state or county depending upon the facts involved in the case.
If you have any issues regarding the alleged existence of a common-law marriage or recognition of a common-law marriage from Ohio or from a foreign jurisdiction, you should consult with a family law attorney.
William Geary is a family lawyer who has been practicing since 1979. He is admitted to practice before the Supreme Court of the United States, and also is a practicing member of the Ohio bar.