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What is common law marriage?

The first thing that comes to one’s mind after reading the title is, is there any difference between formal marriage and common law marriage?


The simple answer to this question is, there are a lot of differences between them. Let us discuss their differences in detail:


For a formal marriage, a ceremony is normally arranged, close relatives and friends are invited, and legal proceedings are followed. For a common law marriage, no ceremony is organized, or legal proceedings are practiced. Instead, two legally competent people, if staying together for a considerable period of time and wanting to be called husband and wife, would be considered a married couple, without the restriction of fulfilling any religious or legal conditions.


Some standards have been established for common law marriages to validate whether it is a legal marriage or not. A few factors which are considered essential are:

1) Have both parties given independent consent to the marriage?

2) Do both spouses have the legal age to get married?

3) Are they both mutually agreed on calling each other husband and wife in public?


The concept of common law marriage is not new. English, Romans, and Greeks in the 1700s had practiced this type of law and, later on, this concept was developed in other parts of the world. During that time, states had no or very little interest in registering statuses of private relationships.


Is Common Law Marriage allowed in Louisiana?


The marriage laws in the United States of America depend on the laws in each state. States are free to make and amend their laws on marriage. There are only ten states in America which have allowed common law marriages. Louisiana is not among them. Hence, common law marriages are not accepted by the courts in Louisiana. To get married in Louisiana, people must follow appropriate legal procedure and get themselves registered as spouses before the court.


Common law marriages in Louisiana can only be legally recognized if they were established in another state where common law marriages are legal. Any member in a couple who looks for support or couples who have minor children should lay out the earlier acknowledgment of their marriage status. This will often require bringing in witnesses who can affirm the couple as spouses.


Does Common Law Marriage Affect Property Rights in Louisiana?


Community property laws are established in Louisiana in which married couples must split their assets among each other upon termination of the marriage. For example, if one spouse earns, 5,000 dollars a month, the other spouse has a right to take 2,500 dollars from him. In a scenario where the spouse refuses to share their income, the other spouse can challenge this in Louisiana courts to fulfil their right. Now, it does not mean that every asset of one spouse earned before the marriage needs to be split. Community property laws only apply to the money or assets earned during the marriage and are applicable when the marriage ends.


Now, let us discuss whether community property laws apply to common law marriages in Louisiana. The answer to this question is common law marriages that originated in Louisiana are not recognized in Louisiana courts. So, if a Louisiana common law married spouse denies dividing their share of income, the other spouse cannot challenge this act in court. For a common law married spouse to enforce their marital rights, that marriage must have originated in another state.


One more concern you may have is how will your assets or resources get treated after your death? Since common law marriage that originated in Louisiana is not acknowledged, your property would not naturally be acquired by your common law spouse. To guarantee that your desires in regards to legacies are fulfilled, it is ideal to draft a will which shows how you wish for your resources and assets to be partitioned among family or friends. Thus, even though couples might experience issues laying out their privileges to acquire as individuals from common law marriages in Louisiana, they can still ask the court for their rights.


Exceptional Scenario


For a moment, let us imagine a scenario in which a couple is living in a state where common law marriage is legal. They got married there and then they decided to move to Louisiana. Now after moving to Louisiana, due to whatever reason, they had a breakup and decided to divorce. So, how will courts in Louisiana act since they don’t acknowledge common law marriages?


In this case, a spouse can file a petition in a Louisiana court to recognize their common law marriage that originated in another state. It is the law in the United States that all states must accept and respect laws of other states. More specifically, the Full Faith and Credit Clause of the United States Constitution, Art. 4 Section 1, requires that states recognize the common law marriages of other states even if those states do not recognize common law marriage. Thus, although Louisiana does not recognize or permit the contracting of common-law marriages in this state, courts are obliged to give effect to such marriages when they are validly contracted in another state.


Contact Us Today


Gaynell Williams LLC Attorney at Law offers a free initial consultation to discuss your case. The first consultation can be in person or it can be virtual, on the Internet. Call Gaynell Williams today at (504) 302-2462 for a free consultation as soon as possible. We will work around your schedule. New Orleans lawyers Gaynell Williams LLC Attorney at Law have offices in Gretna and Downtown New Orleans by appointment only.


This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any specific situation under Louisiana law and the applicable state or local laws that may affect your legal rights.


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