Common law marriage—sometimes known as informal marriage—has historically allowed couples to form legally recognized marital unions without a formal ceremony or license.[1] For genealogists, these nontraditional unions can complicate efforts to establish family connections, lineage, and legal standing. Understanding the historical framework and identifying the proper records can significantly enhance the accuracy of genealogical research involving common law marriages. The following authoritative guide provides a systematic approach to determining whether an ancestor participated in a common law marriage, the jurisdictions where such unions were recognized, and the key records that may substantiate these relationships.
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Understand the Concept of Common Law Marriage
What Is Common Law Marriage?
A common law marriage is an informal union where two people live together and present themselves as spouses without ever undergoing a formal ceremony or obtaining a marriage license. Although the exact criteria vary, common elements often include:
- Both parties intend to be married.
- They publicly represent themselves as husband and wife (e.g., using shared surnames, having joint financial accounts, or being recognized by their community as married).
Where Was/Is It Recognized?
- United States: Not all states recognize common law marriage. Historically, many states did, but today, only a handful still do. Alabama, Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma (under limited circumstances), Rhode Island, South Carolina, Texas, Utah, and the District of Columbia have recognized or continue to recognize some form of common law marriage. Laws change over time, so it’s important to check historical statutes for the period you are researching.
- Canada: Some provinces acknowledge “common law” couples for certain legal and financial purposes but do not always consider them legally married. This distinction can affect documentation.
- United Kingdom and Ireland: The concept of a “common law wife” or “common law husband” has been widely misunderstood. Common law marriage is not recognized as a legal marriage in these countries today. Historically, however, some unofficial unions may have been informally documented in local parish or census records.
- Other Countries: Laws vary widely. Some European countries may have recognized certain forms of informal unions through custom or religious tradition. In Latin American countries, “unión libre” or “concubinato” may have historical precedents documented in local registries or church records.
Determine the Legal Climate of the Time and Place
Before diving into documents, pinpoint the time period and location where your ancestors lived. Laws regarding common law marriage changed frequently. A couple recognized as married under the laws of one state or country might not be legally recognized as such in another. Review:
- State or Country Statutes: Historical law books, legislative records, and legal digests can provide clues about when and where common law marriages were accepted.
- Local Histories and Newspapers: Local historians or newspaper archives may detail shifts in public opinion and legal recognition of common law unions.
Seek Out Potential Records and Documentation
Since common law marriages were not formalized by the usual marriage license, you’ll need to turn to alternative sources. Consider the following records:
- Census Records: U.S. Federal Census and various state censuses often listed household members and their relationships. If a man and woman are consistently listed as “husband” and “wife” over multiple censuses without a recorded wedding, it may hint at common law marriage.
- Property and Land Records: Deeds, land grants, and property transactions often recorded the names of both spouses. If a woman’s name appears alongside a man’s name on property records—especially during eras when property ownership by women was less common—it might indicate a marital-like partnership.
- Wills and Probate Records: Sometimes a common law spouse is named in a will, trust, or probate record as “my beloved wife/husband” or given a widow’s share of the estate. Such documents can substantiate the existence of a marital-like relationship.
- Church and Parish Registers: While a church marriage is a formal ceremony, not all unions were sanctioned by religious authorities. However, sometimes the local clergy or the community church would recognize a couple as married, mentioning them in baptismal or burial records as spouses.
- Court Records: Court cases that dealt with inheritance, child custody, or property disputes may identify a common law spouse. If a partner sued or was sued in a manner that assumed spousal rights, these records can confirm the nature of the relationship.
- Newspaper Announcements and Obituaries: Obituaries and community columns in local newspapers sometimes list survivors and refer to an individual as a wife, husband, or partner. Engagement and wedding announcements were not always present for common law couples, but social columns may still have made references to their relationship.
- Pension and Military Records: Widows’ pension applications, especially after wars, sometimes required proof of marriage. If a common law spouse attempted to claim a pension, the supporting affidavits and testimony of neighbors or community members can be invaluable.
- Affidavits and Personal Letters: Personal family letters, diaries, or affidavits given by neighbors and family can reveal that a couple lived as married. Such private documents were often kept in family archives and can be uncovered through personal collections or historical societies.
Correlate Evidence and Interpret Findings
Common law marriages can be inferred rather than confirmed with a single record. As you gather evidence:
- Look for consistent references to marital status over multiple documents.
- Combine property, census, and probate records to establish patterns.
- Consider timing: Did the couple move from a state recognizing common law marriage to one that didn’t? This could explain why no formal license was recorded.
If your evidence strongly suggests a marital-like union and there is no record of a ceremony, you may have uncovered a common law marriage.
Expand Your Search Beyond Borders
If your ancestors emigrated, the concept of common law marriage might differ in their country of origin:
- Check Immigration and Naturalization Records: Sometimes spousal designations appear in ship passenger lists or naturalization petitions.
- Explore Church Archives in Europe, Latin America, and Beyond: Church documents abroad might reference the couple’s standing, noting if they were considered married under local custom.
- Consult Genealogical and Historical Societies: Specialists familiar with local customs can guide you toward lesser-known sources that acknowledge non-ceremonial unions.
Conclusion
Unraveling the mystery of a common law marriage in your family’s past requires patience, creativity, and a willingness to think beyond standard marriage records. By thoroughly researching the historical context, examining a wide range of documents, and seeking expert insight, you can piece together the story of an ancestor’s union—even when it was never formally recorded. This exploration not only clarifies family relationships but also enriches your understanding of the social and legal tapestry that shaped the lives of your forebears.
See also
Learn more about common law marriage
- Common Law Marriage and Genealogy. Genealogy's Star
References
- ↑ Solernou, Daniel J. (2016). "Common-Law Marriage". Encyclopedia of Family Studies: 1–2. doi:10.1002/9781119085621.wbefs301. ISBN 9780470658451.