Common Law Marriage and Divorce

family law

There are a handful of states that recognize the concept of common law marriage. Common law marriages are valid marriages without the performance of a ceremony or registration with the state. Generally, in order to validate a common law marriage in those states, the couple needs to show that they intended to be married and that they held themselves out as a married couple while in public. Upon valid recognition of the common law marriage, the couple holds the same rights and privileges as a couple registered with the state.

However, North Carolina is not one of the states which recognizes common law marriage. In this State, a valid and sufficient marriage is created by the mutual consent between the parties and either:

  1. In the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate; and with the consequent declaration by the minister or magistrate that the persons are joined in marriage; or
  2. In accordance with any mode of solemnization recognized by any religious denomination, or federally or State recognized Indian Nation or Tribe.

This means that North Carolina does not recognize the creation of a marriage through the common law. However, North Carolina will recognize a common law marriage that was validly established under the laws of another state.

This is important for two reasons. First, since couples in a common law marriage receive the same rights and privileges as a couple married under North Carolina law, they also must follow the same methods and procedures to dissolve their marriage. The parties involved in the dissolution of their common law marriage are permitted to apply the laws of North Carolina regarding equitable distribution and spousal support if one party meets the six-month jurisdictional requirement. Second, a couple with a valid common law marriage will be recognized as a married couple until sufficiently divorced under the laws of this State. Simply walking away from the marriage, without taking the necessary divorce steps, could result in a bigamous second marriage. 

If you are in need of legal advice or representation in a divorce regarding your common law marriage, please contact one of our lawyers at Jetton & Meredith. Our family law attorneys are equipped with knowledge and experience to help you maneuver through these difficult times.