Common Law or Cohabitation: A Primer for Couples’ Counselors

Prevalence of Common-Law or Cohabitating Couples

The practice of common-law marriage is based on medieval English tradition. Given the scarcity of access to clergy and therefore the formalization of marriage by the church in feudal England, couples established a recognized union through public declaration of commitment and cohabitation (Yamin-Garone, 2009). This practice was replicated in colonial America but, with the accessibility to clergy and changing social mores, nonlegally sanctioned unions became a less socially accepted form of union.

In tracing the more recent evolution of these practices, common-law and cohabitation relationships went from being socially perceived as “living in sin” in the 1950s, from disreputable and difficult, to normal and convenient by 2000 (Goodwin, Mosher, & Chandra, 2010; Huang et al., 2011; Kuperberg, 2018). So, the idea of nonlegal marriage has become more mainstream and a long-term option for relationships. From once identified as a deviant form of union, these relationships are now seen as a normative transition to adulthood (Grossman & Friedman, 2011), whether their dynamics and intent be prenuptial established after formal engagement but prior to marriage, testers as a trail toward consideration of formal engagement, or a complete alternative to formal marriage (Eickmeyer & Manning, 2018; Gold, 2013).

Recent statistics described living together as a common pattern, with two third of couples so defined (Goodwin et al., 2010; Huang et al., 2011). Grossman and Friedman (2011), citing Pew Research Data, reported a 10-fold rate of increase in cohabiting couples between 1970 and 2000 and that 4 of the 10 Americans agreed that marriage is becoming obsolete and less than half viewed nonmarital cohabitation as a “bad thing.” Rogers, Willoughby, and Nelson (2016) discovered a 17-fold increase in cohabiting couples since 1960, citing 2011 U.S. Census numbers. Kreidl and Hubatkova (2017) spoke to the increased prevalence of cohabiting couples worldwide, referencing the 2008 European Social Survey. Currently, Kuperberg (2018) stated that most marrying couples (70%) lived together, during the 2011–2015 span. In addition, Eickmeyer and Manning (2018) reported that 73% of young adult women over the past decade stated that they had been in a cohabiting relationship. So 21st-century couples and family counselors can expect to encounter nonmarried but committed partners on their caseloads.

Definitions of Common-Law and Cohabitation Relationships

The questions that then face couples, and couples’ counselors, are how to distinguish a “common-law” relationship from cohabitation (Larson, 2018; Probert, 2012) and what are the ramifications for each designation. Simply put, the most critical social distinct between these two categories of intimate relationships deals with state-by-state recognition. Common-law marriage holds legal standing in decreasing number of sates; cohabitation holds no legal standing in any states.

Common-Law Marriage

As stated, statutes governing marriage are enacted on a state-by-state basis. As of December 2018, only eight states (Colorado, Iowa, Kansas, Montana, New Hampshire, Utah, Texas, Rhode Island), and the District of Columbia, continue to recognize common-law marriage, each with slightly different qualifiers. There seem to be identifiers in common: (a) couples must cohabit for a period of 1–3 years; (b) present themselves as married as evidenced by property ownership, joint tax filing, and so on; and (c) state an intent to marry. Determination of “common-law” status then allows couples the rights and responsibilities as those in marriage. Should the couple decide to part, they must still dissolve the union through legal divorce, with the ex-partners usually conflicted about the date of origin of the common-law relationship, a disparity of presentation of the relationship, and vagueness regarding “intent to marry.” So family courts may be faced with differing perceptions as to the existence of a “common-law” marriage between the partners, needing to then decide whether, in fact, the individuals were common-law married or simply “living together,” which would then influence the separation process, division of assets, financial responsibilities, and so on.

In addition to the eight identified states, other states recognize these unions prior to specific dates such as Alabama (prior to 2017), Georgia (prior to 1997), Ohio (before 1991), Oklahoma (before1988), or Pennsylvania (prior to 2005). Given the differences between states, a couple can move from a state that recognizes common-law marriage into state that does not condone common-law marriage but still have their union honored. In the search for literature on this topic, the National Conference of State Legislators (www.ncsl.org) provided valuable insights or reference to state regulations specific to the state in question provide a more up-to-date resource (e.g., typing in “south Carolina common law marriage” provided connection to www.scstatehouse.gov, which provides the most recent state statutes pertaining to this status).

Cohabitation

If common-law marriage retains legal status in some states, with recognition in other jurisdictions where common-law marriage was previously sanctioned, cohabitation, as a legal institution, holds no such status in any state. Bereft of any legal guidelines regarding length of relationship, intent to formally marry, presentation of the relationship to a wider society, or property or children in common (Larson, 2018; Probert, 2012; Yamin-Garone, 2009), cohabiting relationships may be seen as valid by both parties but are not recorded by state or religious registry. As compared to common-law marriage, which carries a narrow legal definition, cohabitation also referred to as domestic partnerships, registered partnerships, conjugal union, or civil union may apply to a wide range of couplings but carries no legal definition (Grossman & Friedman, 2011). So, in most states, cohabiting couples hold no legal rights, no potential to establish the validity of their union, and are viewed simply, in law, as two individuals sharing a domicile. Issues of common property and assets, responsibility for a mutual child, health benefits, dissolution processes, and so on, all the rights and responsibilities defined in state laws of marriage, are inapplicable to cohabiting couples. “Very few states that spell out rights and obligations of cohabiting couples” (Grossman & Friedman, 2011, p. 139).

Ramifications for Counselors Working With Clients

Given the prevalence of cohabiting couples as stated previously, clinicians who work with couples can expect members of such relationships among their caseload. Gold (2013) advocated exploring the differing perceptions of the intent and future of cohabitation of the partners. Doing so may help the individuals recognize common and unshared outcomes of their cohabitation, leading to more informed future planning (Kreidl & Hubatkova, 2017; Rhoades, Stanley, Markman, & Allen, 2015; Rogers, Willoughby, & Nelson, 2016). In addition, cohabiting partners may benefit from an investigation of how each person views their relational guidelines separate from templates of marriage that each might hold. Counselor-led discussion might involve whether cohabitation, as compared to marriage, includes the addition of children. In addition, counselors can help cohabiters to be prepared for the reception by other social institutions such as the church, law, medical care, schools, and so on. Moreover, counselors can help cohabiting couples to address legal oversights in the status of their relationships, ensuring attention to properly documented contracts about child care, health and death benefits, and any other “marital” issues that are absent from state statutes. Online searching in February 2019 reveals the availability of “cohabitation contracts” (www.lawdepot.com; www.legalzoom.com; www.template.net) that may be informative for these clients. The inclusion of these resources is intended simply as a list, not a recommendation, and it may be of interest for counselors to compare the issues in common between the differing sites and to become familiar with these web resources when considering whether to integrate these sites in their services. Most recently, Eickmeyer and Manning (2018) remarked on the need to study the continued growth of cohabitation from baby boomers through millennials and its growing acceptance, and yet differing definitions, of the same social institution based on the generational context of the partners.

Implications for Training of Clinicians Who Work With Couples

These ramifications for graduate training can be categorized as knowledge and attitude focused. Kreidl and Hubatkova (2017) advocated course coverage of cohabitation systems along with other family constellations, so that new clinicians will have an introductory awareness of this topic This awareness may facilitate a need to clarify with new clients in what type of “couple” relationship they are. In addition to text-based understanding, beginning clinicians need to develop a sensitivity to their personal values about cohabitation, common-law marriage, and the dynamics and sustainability of each type of relationship—based on professional knowledge, personal experience, and social narratives. Further, as the thesis of this article attends to legal standing of common law and cohabitation, marriage and family counselors could learn how to access state statutes specific to common law and/or cohabitation regulations. Consultation practices may involve learning how to approach and negotiate with attorneys to develop a suitable referral list for clients, and student familiarity and confidence may be enhanced by inviting local attorneys to speak to graduate students about this topic.

Recommendations for Future Study

It could be predicted that, at some point, common-law marriage will hold no legal status in any state. The trend seems to be toward a more legally designated definition of marriage and allow common-law marriage to pass into history. However, the data presented in this article establish that, while common-law marriage is on the wane, cohabitation seems to be increasing. Accordingly, this shift would seem to suggest more scholarly, and research attention needs to be dedicated toward the ongoing study of cohabitation.

Initial effort to study cohabiting couples must be dedicated toward the operationalization, identification, and enumeration of these relationships. Currently absent from national U.S. Census data, this agenda is a mandatory prerequisite for any systematic and representative sampling process. This need may be addressed using online study to identify existing cohabiting support systems or blogs. As of February 2019, no such sites were uncovered. However, perhaps more dedicated web accessing would reveal such resources.

Attitudinal data could be gathered from precohabiting couples in postsecondary school settings to ascertain relational intent. Work could be done with early cohabiting couples to explore the intent and assumptions of each partner to begin to develop gender-based profiles of persons in such unions. Studying the same couples over time could serve to develop relational trajectories, which might facilitate the identification of distinct relational phases, challenges, and successes. It may be of interest to track whether children raised in cohabiting households do, themselves, cohabit as adults or prefer marriage. Further consideration of the effects of cultural variables such as ethnicity, socioeconomic status, and sexual identity on relational dynamics may lead researchers to develop data-based, culture-specific, or nonculture-bound theories of these relationships. In addition, longitudinal study of children in cohabiting households can provide clarity on their developmental successes and challenges.