Are you a commitment phobic? Have you lived with a significant other for several years and are now getting concerned about being bound by “common law” marriage? Do you feel compelled to “break up” in order to preserve your estate? Relax. Common law marriage is not legal in the state of Illinois.
Common law marriage was no longer recognized in Illinois after June 30, 1905. Nine states still do recognize common law marriage: Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas and the District of Columbia. Each state has its own requirements for co-habitation to be considered common law.
Co-habitation is just one condition of common law marriage. Couples must have the intent of appearing married. Others must perceive you as husband and wife. Personal records such as bank statements and personal property such as cars and a home must list you as husband and wife.
If you are considered bound by a common law marriage in a state that recognizes them and move to a state that does not, you are considered married in the state that does not recognize common law marriage.
A common law “spouse” has all the rights to legal benefits as well as the partnership risk that accompanies a licensed marriage. The problem is proving it. A court must declare a common law marriage in order for a “wife” to inherit when the “husband” dies if there is no will. A will declaring her a specific heir avoids that concern. But, if you want a divorce, you first have to prove that you were married. Common law marriages do require a divorce to disentangle assets.
So, if your intent is not to be married, but want to live with someone, then you might be better served by avoiding those states that recognize common law marriage. But, if you do want to be married, then the traditional route of getting the marriage license is the best course of action by the way of keeping things simple legally.
A marriage license is easy to obtain and costs about $15. Illinois residents go to the county clerk’s office. The couple must apply in person and present a photo ID or two documents with a current address. The license is good for 60 days and the marriage must take place in the county in which the license was applied for.