Illinois Law on Common Law Marriage
The distinction between legal and common law marriages is a relevant one from a family law perspective in Illinois. Common law marriages in Illinois, however, are a relic of the past: they are outlawed, as the following will show.
There was a time in this state when many couples entered into informal arrangements, often called "common law marriages" by well-meaning individuals or organizations who didn’t know any better. A common law marriage is one that comes into existence without the benefit of a marriage license or a formal ceremony. As long as the parties considered themselves married, there was no need for a legal determination.
Understanding the social and historical background of such arrangements reveals a great deal about the nature of the legal relationship that only later came to be understood: one grounded in contract law. The reasoning goes something like this: in times past, there were situations in which actual marriages were simply impractical or prerequisites for a marriage were not fulfilled (in today’s terms, by the license requirement) . Thus, it was the intention of the parties and the conduct of the parties that created an agreement even when formalities were lacking.
As time went on, and formalities became more entrenched in the marriage process, the number of common law marriages began to dwindle. By the latter part of the 1800s, only New Hampshire—long known for its odd rules—was left with a law allowing "declarations of marriage," which were essentially common law agreements.
In 1963, the Illinois legislature abolished common law marriage by statute. Illinois law does not allow for common law marriages to exist, however, we may find ourselves at a philosophical conflict that doesn’t really make a difference: from our point of view, when people get together and form households, sometimes they break up, sometimes they don’t. If you’re married, you need to subject yourself to the jurisdiction of the state courts—the only way to get out of the legal obligation of marriage is to file for divorce or an annulment. If you weren’t married and break up, it’s just tough luck. The moral of the story is if you’re going to think you’re married, actually tie the knot.
Common Law Marriage Myths and Facts
Many people have misconceptions about common law marriages – not only in Illinois, but across the United States. Here are a few of the most common myths and the facts you should know.
Myth: In Illinois, common law marriages are valid if you’ve been together long enough.
Fact: 750 ILCS 40/1, et seq., sets out how a couple can be considered married in Illinois. A common law marriage is considered a cohabitation that cancels out an existing marriage, but does not create a new marriage. In general, Illinois does not recognize the common law marriage of a couple who is living together. If you were married in a state that does recognize common law marriages and then moved to Illinois, your previous common law marriage would still be considered valid.
Myth: If my spouse and I get married in a different state and move back to Illinois, we no longer need to be married.
Fact: If you were previously married and return to Illinois, you are still legally married under Illinois law. It does not matter if your previous state recognized common law marriages or not; you are still legally married in Illinois. That means you must file for divorce before you can marry someone else.
Myth: You can create a common law marriage in Illinois by agreeing to be married and living together.
Fact: The more time you spend with someone does not create a common law marriage. You cannot create a common law marriage by agreeing to be married regardless of how long you have lived together. Illinois law is very specific when it comes to defining marriage and there are specific steps you must go through in order to get married.
Myth: Since my spouse is in prison, I can marry someone else and it will end the marriage.
Fact: Being separated does not automatically end a marriage, divorce does. A person is considered married until there is a legal divorce decree, regardless of whether one spouse originates the legal separation.
Legal Options Other than Common Law Marriage in Illinois
Common law marriage allows unmarried couples to live together without the need for a formal legal union. While this type of relationship is not valid in Illinois, legal alternatives exist for couples wishing to have the rights generally conferred by a marriage. These unions are not as commonplace as common law marriages, but they are becoming more accepted and understood. They provide those in committed relationships with spousal rights, such as the right to inheritance, financial benefits, health insurance and the right to make medical decisions if a partner is incapacitated.
Illinois has a civil union law that came into effect on June 1, 2011. Individuals wishing to celebrate a civil union do not have to have a religious ceremony. The law recognizes civil unions between two people, either of the same or different genders. It allows parties in a civil union to register with the Cook County Clerk and gives them nearly all the rights and benefits of married couples.
These rights include:
Civil unions allow the following rights and benefits to both partners: Parties wishing to enter a civil union must file an application similar to the marriage license process. There are no restrictions on the parties’ ages, and they do not have to be residents of Illinois. While the parties do not have to live together to enter into a union, they must live in same state for the union to be recognized.
A certificate of registration is issued upon completing the registration process and is recognized in the same manner as a marriage certificate. Rights conferred by the civil union are those previously available under common law, such as the right to adopt a child and seek dissolution of the union. Illinois courts acknowledge civil unions in the same manner as they do marriages.
Property and Inheritance Issues
Disputes over property rights are common in marriages that don’t have a common law marriage recognition. Because the legal framework does not exist to define the exact relationship between unmarried unmarried couple, issues over whether assets should be shared or not can quickly turn into courtroom battles. This uncertainty can lead to significant legal costs and emotional strife.
A very real issue for couples from jurisdictions that recognize common law marriage is the lack of recognition from a legal system that does not. This presents additional hurdles when transferring property or assets.
There are also significant issues related to inheritance. Without a legal recognition of a partner’s right to inherit as a spouse , even a deathbed wish or the writing of a will may not guarantee the individual organization they might expect.
Particularly if a marriage may be suspected by other family members, an estate plan that neglects to account for the surviving partner can result in what many see as a splitting of assets that should be distributed in a more equitable manner. Grown children may be more inclined to contest the will that may cut them out of the estate entirely or cut them out to an unreasonable degree. Thus, a surviving partner is put through a very painful process in which they are forced to prove they are indeed the spouse—whether the marriage was valid or not.
Family Law Considerations for Out of State Common Law Marriages
There is a section of Illinois law that says that if common law spouses move to Illinois from states where their marriages are recognized, then Illinois will also recognize the marriage. The section of Illinois code says: "The laws of Illinois governing the validity of marriage shall apply to those persons who have a valid marriage by the law of the jurisdiction in which the marriage was celebrated . . . ." 735 ILCS 205/ 212. So, for example, if an Alabama couple was married by common law in Alabama, and if they move to Illinois, the fact that Illinois does not recognize common law marriages does not impact the recognition of the marriage in Illinois. Both states would recognize the marriage. However, this provision has resulted in some litigation on occasion. Specifically, if a couple is getting divorced in Illinois, and if the marriage was valid in another state but was invalid in Illinois, will Illinois give full faith and credit to another state’s laws regarding this marriage? In other words, will Illinois recognize the divorce and divide the property of the parties if Illinois would not recognize that couple as legally married? In a published opinion called in re Marriage of Forbes, 304 Ill. App. 3d 965 (1999), the Illinois Appellate Court for the Third District was asked to determine whether it would give full faith and credit to the State of Colorado in finding the common law marriage of the parties to have been valid. The parties were married under the common law in Colorado and then moved to Illinois where they subsequently separated and filed for divorce. The wife petitioned the Illinois court for dissolution of their marriage, but wife objected to husband’s claim that the divorce was improper because the couple had never been legally married in Illinois. While the trial court found that the marriage was valid, the Appellate Court disagreed. It held: "We reject both Wife’s and the circuit court’s argument that we should recognize the validity of the Common Law marriage as a matter of full faith and credit. . . . While we recognize that full faith and credit extends to a divorce decree resulting from a common-law marriage, we find no persuasive authority for the proposition that the full faith and credit doctrine requires recognition of a common-law marriage where such a marriage is void ab initio." Forbes, at p. 972. Forbes did not end the analysis, however. The court then went on to note: "Even where a common-law marriage is void from its very inception, the courts of this State are not without jurisdiction to grant the equitable remedy of dissolution of marriage." Forbes, at p. 973. Ultimately, the court upheld the dissolution of the couple’s marriage. It concluded that: "Wife is entitled to none of the relief she seeks by way of her motion to vacate." Forbes, at p. 973. So, here’s the bottom line on this issue: If a couple marries in State A where common law marriages are recognized, and then moves to Illinois, their marriage is valid. However, if the couple files for divorce in Illinois, Illinois may not give full faith and credit to the State to determine the dissolution of the marriage, because Illinois does not recognize the common law as valid for its purposes. Couples stay in the marriage or divorce just as if the marriage was not recognized in Illinois.
Legal Guidance and Considerations in Illinois
For Illinois couples who are not certain if they are legally married, or who may have a legal claim to marital property under a common law marriage, it is absolutely crucial to seek legal advice from a qualified family law attorney. A family law attorney experienced in Illinois marital law can advise as to what rights are afforded under the Illinois Marriage and Dissolution of Marriage Act for cohabitating couples and help ascertain whether a marriage license is required under state law to properly affirm a legal marriage . The attorney can also properly advise whether any actual common law marriage exists under state law, or if all requirements to have a common law marriage are met under Section 212(a) of the Illinois Marriage and Dissolution of Marriage Act.