Is Common Law Marriage Recognized in Tennessee?
Is Common Law Marriage Recognized in Tennessee?
Tennessee is not a common law marriage state. Cohabiting for years in this state while claiming to be married cannot, without more, form a valid marriage contract. The fact that Tennessee has never been a common law marriage state does put it in the minority. This does not mean, however, that a lawful common law marriage established in another state would not be recognized in Tennessee. It would be.
What are the common law marriage states?
At least for a time, entering into a common law marriage was allowed in the majority of states. Most states that once allowed couples to establish common law marriages have since abolished the practice. Replacing it with formal, ceremonial marriages performed by those individuals (pastors and magistrates, for instance) authorized to marry people. Most recently, the State of Alabama abolished common law marriage contracts in January 2017.
Today, few states in the nation allow couples to enter into a common law marriage. Along with Washington D.C., only Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas, and Utah permit consensual common law marriage. Such marriages are usually between two cohabitants who hold themselves out publicly to be “man and wife” (or hold themselves out as married) for the requisite time period, typically a set number of years, among other requirements. Notably, certain Native American tribes still allow for establishment of common law marriages.
Recognition of valid out-of-state marriages, including common law marriages, falls squarely under the rule of comity between sister states for purposes of practical convenience and expediency. If a marriage is valid in the sister state where it was established and the Tennessee court asserts jurisdiction, then the spouses may seek a divorce here.
In Tennessee law, being joined in marriage requires both a license from the county clerk and a ceremony. An authorized person, such as a spiritual leader or mayor, must solemnize the rite of matrimony. The signed license is then returned to the county clerk and recorded with vital records. (See T.C.A. § 36-3-301.)
Why does getting married today require a license, solemnization, and recording?
In the past, too many records were inaccurate, lost, or destroyed. This centralized process allows people to obtain government certified vital records of marriage licenses. Birth certificates, death certificates, and divorce records are similarly recorded by the Tennessee Department of Health, Office of Vital Records.
Tennessee Divorce From Common Law Marriage
Is there a special divorce from common law marriage? No, but additional proofs will be required. When a spouse with a common law marriage seeks a divorce in Tennessee, the validity of that marriage must be determined first. Because there is no official certificate from a governmental authority to file with the complaint for divorce, additional evidence and testimony will be needed to prove the common law marriage is valid.
Which spouse must prove a common law marriage exists? The party who filed the complaint for divorce has the burden of proving the existence of a valid common law marriage. If that burden is not met with evidence, then the case should be dismissed. Why? Because there are no bonds of matrimony for the court to dissolve. When the burden of proving the marriage is met, the State of Tennessee will recognize the marriage.
To determine whether the complainant carried the burden of proof, the Tennessee court must apply the facts before it to the sister state’s common law marriage law. (By looking to South Carolina marriage law, for example.)
If the common law marriage was lawfully entered into, based upon a Tennessee judge’s interpretation of the sister state’s marriage law, then the dissolution proceedings continue as with any other divorce. That is, property is divided, alimony is awarded, child custody is determined, and child support is calculated.
Common Law Marriage Requirements
What proof of common law marriage is persuasive in court? In proving his or her case, the spouse who filed the complaint for divorce may offer evidence of:
- Publicly holding themselves out as married;
- Using the same surname;
- History of filing income taxes jointly;
- Referring to themselves as “husband and wife” or “spouses”;
- Having children;
- Naming the other person as a “spouse” for employer-covered health insurance;
- Filing jointly for bankruptcy as married;
- Continuous cohabitation;
- Interwoven finances, such as joint bank accounts and joint ownership of real estate;
- Owning a business together;
- Providing money to each other without a promissory note or security interest in collateral (as with a secured transaction or mortgage); and
- Other relevant evidence of being married.
Understand that a valid common law marriage is not a lesser marriage. Whatever stigma there might be in some social circles, common law marriages enjoy all the benefits and detriments of ceremonial marriages entered into under Tennessee statutory law.
References, Resources and More:
- Divorce Laws & Filing in Tennessee Answers to FAQs
- The Tennessee Divorce Process: How Divorces Work Start to Finish
- Navigating Basic Court Procedure
- Download our free e-Book, Your First Steps: 7 Steps Planning Your Tennessee Divorce.