Is Common Law Marriage Legal in Virginia?
In short, no. Currently in Virginia, there is no common law marriage, and the only way for a couple to be legally married is to have the marriage solemnized by a ceremony.
Historically, Virginia has recognized common law marriage in very limited circumstances, namely, where two people were married through common law and then later moved to Virginia. Common law marriages generally have been invalidated in Virginia since 1904, though (as discussed below) this area of law has been stagnant for the past few decades. Virginia started recognizing common law marriage as far back as the 16th century, but it wasn’t until the early to mid-1800s that scholars began to study and write extensively on the issue. Then, in the late 1800s and early 1900s, states began to recognize only limited common law marriages in their jurisdictions. West Virginia was one of these states and enacted a statute abolishing common law marriage in 1901. Common law marriage was finally abolished in Virginia in 1904. Yet, the Virginia Supreme Court still recognized common law marriage until 1980, when the Virginia Supreme Court ended common law marriage by judicially overruling itself in the case Comet v. Comet, 221 Va. 754 (1980). In that case, the Court held that even if a couple was married in a state that recognizes common law marriage, if the couple moves to Virginia with the intent to remain in Virginia, their common law marriage would not be valid in Virginia. In other words, Virginia did not "recognize" the common law marriage as valid. During the next decade, Virginia’s legislature debated on whether to abolish common law marriage in Virginia , but no significant legislative action occurred during that decade. As of 2004, the Virginia Supreme Court overruled itself again, holding in Krug v. Krug, 267 Va. 192 (2004) that the Virginia Supreme Court’s prior decisions in Comet and related cases were "no longer viable … [because] the legislature has extinguished the common law marriage status and replaced it with the solemnized marriage status." Essentially, the Krug Court noted that the legislature intended to establish the current law. Yet, despite the Virginia Supreme Court’s ruling, what the 2004 Krug opinion doesn’t mention is that the Virginia legislature granted an exception to its abolishment of common law marriage. Namely, a common law marriage was still considered valid if entered into before June 30, 1980. In other words, common law marriage was still valid if entered into by two persons who had established the common law marriage prior to Virginia ending its recognition of common law marriage, which was June 30, 1980. Thus, even after the 2004 Krug decision, because of Virginia’s exception, a common law marriage in Virginia was still valid if the couple established the common law marriage prior to June 30, 1980. This meant that a couple could enter into common law marriage in another state that recognizes common law marriage, then move to Virginia and still have their common law marriage recognized as valid in Virginia. However, in 2016, the Virginia General Assembly passed another law that removed the June 2009 stop date exception. Therefore as of July 1, 2016, 1980 is Virginia’s final word on common law marriage. No common law marriage ever existed in Virginia.
What is Common Law Marriage and the Primary Attributes
In a legal context, the definition of common law marriage tends to focus on couples that have both intended to be married and established themselves as such over a period of time. Where it’s recognized, a common law marriage is essentially an informal, unwritten arrangement where two individuals decide to call themselves married. A common law marriage will almost always include two specific characteristics: There are additional criteria for common law marriages outside Virginia – including a certain amount of time cohabiting and presenting yourself as a married couple to friends and family – but the above points are what generally indicate the more fundamental characteristics across the board. The key requirement is generally that both partners must have the intent to be legally married.
Residency and Common Law Marriage in Virginia
While recognizing a common law marriage as valid from another state, Virginia doesn’t allow spouses who move to Virginia to have their prior common law marriage recognized as valid. Under Virginia’s approach, the spouse would have to remarry to stay married.
In practical terms, this means that if a couple has a common law marriage in Texas then moves to Virginia, they still enjoy all of the benefits of a validly married couple. However, the moment they move to Virginia, they can no longer be considered married in the eyes of the law unless they later remarry. That’s because Virginia requires residential residency. The couple must have lived together in Virginia to establish a common law marriage in Virginia. So if, while continuing to live in Virginia, the couple remains together and holds themselves out as a married couple, they can obtain coverage under a combined health plan or obtain other benefits otherwise qualified for married couples (taxes, retirement, etc.).
However, if when declining an offer of coverage from an employer or when applying for health benefits through a spouse’s employer the employee indicates that they are not married, they are telling the truth according to Virginia law. Similarly, such couples cannot file joint tax returns in Virginia as married individuals. If such couples misrepresent the truth in such a manner, an employer may have grounds to suspend coverage or even file a fraud complaint with local law enforcement.
The ‘Years Together’ Fallacy
There is a widespread belief (or perhaps misbelief) that parties need to have cohabited for a number of years before their relationship can be characterized as a common law marriage. That is simply not correct. While the length of the relationship is certainly a factor considered by the Virginia courts, it is not the most important factor. Indeed, Virginia courts have found that a common law marriage can be created immediately, even on the same date as the wedding, and without any observance of a marriage ceremony whatsoever. The key to establishing a common law marriage is proof of an intent and agreement to be married, and that can occur in an instant.
So, without any intent to be married, the years are irrelevant.
As an example, consider a couple who starts cohabitating as boyfriend and girlfriend and then signs a lease. Typically, the lease would have a one year term . Therefore, if the parties had a specific agreement to be married, but nothing was done to carry out that agreement until one year after the date of the signed lease, the parties could be found to have been married on the date they moved into the residence together, notwithstanding the fact the husband and wife had no legal idea they were married until year later. The reason for the delay would have no impact on the common law marriage.
The question an attorney is going to ask when analyzing whether a common law marriage has been created are "What specific actions did the parties take in performing the marriage?" "When did they begin holding themselves out as husband and wife? And Why?" "Did they tell others they intend to marry?" "Did they have a wedding ceremony and invite others to attend?" and the list goes on.
Keep in mind though, on rare occasions when the statute of limitations has expired, Virginia does recognize common law marriages. However, it takes more than the passage of time for a court in Virginia to find there is a common law marriage.
Common Law Alternatives in Virginia
Virginia does not recognize common law marriages, as evidenced by Section 20-45 of the Code of Virginia, which states that "[i]n no case shall any common law marriage entered into after January 1, 2017 be valid in the Commonwealth." There are, however, alternatives available to couples who wish to formally recognize their relationship.
A couple may decide to formalize their relationship in one of three major ways: marriage, legal separation, or domestic partnership.
Marriage. In order to be legally married, a couple must obtain a marriage license from their local Circuit Court Clerk’s office (Section 20-14). While a common law marriage does not require a license, a ceremonial marriage does, and that license must be signed by at least two witnesses (Section 20-34). Further, the license must be registered with the office of Vital Records at the Virginia Department of Health (Section 32.1-267.2).
Legal Separation. Virginia does not recognize legal separation. In fact, there is not even a statutory definition of legal separation. However, there are statutory provisions that govern separate maintenance (Sections 20-91 and 20-96). While these statutes utilize the word "separation," the term "separate maintenance" is critical here. When a Judge or Court Orders "separate maintenance," that Order sets the terms of support and/or equitable distribution (division of property) but does not address custody or visitation matters, which are governed by further court orders. Separate maintenance provides for support and property division for the parties while they are living apart, but does not formalize their relationship into a divorce.
Domestic Partnership. A "domestic partnership" is defined as "any relation between two persons that is not a marriage between persons of the same sex or different sex, and that is established by an agreement, either oral or in writing, between the parties to be considered a domestic partnership for any purpose, and that satisfies the criteria for a domestic partnership" (Section 60.2-1600). However, you may also see domestic partnerships referenced in Virginia within the context of §20-45.2 (which addresses the dissolution of domestic partnerships) and §20-88.2 (which addresses the right to spousal support, among other rights, for a party who is in a domestic partnership).
Regardless of the terminology used, it is critical that any couple considering formalizing their relationship consult with an attorney to discuss their legal options and the benefits associated with each.
Consultation and References
There are a number of resources available for individuals in Virginia who seek legal guidance or advice on marriage-related matters. Legal aid organizations, such as the Virginia Legal Aid Partnership, provide informational resources, legal advice hotlines, and referral services to assist low-income individuals facing civil legal problems and in need of legal assistance.
State Bar associations also offer free online resources specific to marriage and family law, including guides on prenups (Section 3), separation (Section 5), divorce (Section 6) , and child custody (Section 7). Those who fall below a certain income threshold may be eligible for assistance from local Courts. In addition, a referral to a qualified attorney specializing in family law may be issued.
Virginia also has a number of local bar associations that cover certain counties. For example, the Fairfax Bar Association has a lawyer referral service, in which the public is offered a 30-minute consultation for $50 with a lawyer. Those interested in receiving legal guidance on matters involving marriage law can request a lawyer through the referral service.