Common Law Marriage is Alive and Well in the District of Columbia

by JGL Associate Attorney
August 2nd, 2018

If you want to get “hitched” in the District of Columbia, you don’t have to obtain a marriage license or exchange vows during a religious or civil ceremony in order to do so!

Pursuant to case law in the District of Columbia, in order to establish a common law marriage the following requirements must be met by two legally capable individuals: a mutual agreement, in the present tense, to enter into a state of matrimony; and the consummation of their agreement by cohabitating as husband and wife. (United States Fidelity & Guaranty Co. v. Britton, 269 F.2d 249, 251 (1959))  “Although there is no set formula required for the agreement, the exchange of words must ‘inescapably and unambiguously impl[y] that an agreement was being entered into to become man and wife as of the time of the mutual consent.”  (Coates v. Watts, 622 A.2d 25, 27 (1993))  Contrary to popular belief, there is no requirement that the parties live together for a specific period of time in order to establish a common law marriage.

The District of Columbia is one of the few states that still authorizes individuals to establish a common law marriage. While Maryland law does not authorize two individuals to establish a “common law” marriage within the state, Maryland courts uphold marriages that were validly entered into in accordance with another state’s law.  As a result, an individual seeking to obtain a divorce in Maryland whose marriage was established based on the constructs of common law marriage in the District of Columbia or elsewhere, must prove that their marriage was validly entered into in accordance with the law where the marriage was entered– just as individuals who were married by religious or civil ceremony must do.

What proof is required to establish a common law marriage? In accordance with D.C. law, a common law marriage may be proved by either direct or circumstantial evidence, but the best evidence and possibly, the most preferred, is the testimony of each of the parties. (Marcus v. Director, 548 F.2d 1044, 1048-49 (1976))  The judge will determine the credibility of each party and what weight should be provided to their testimony. (Id.)  “The proponent of the marriage must prove, by a preponderance of the evidence, that there was a common law marriage.  They must show that the parties cohabitated as Husband and Wife, following an express mutual agreement, which must be words of the present tense.”  (Bansda v. Wheeler, 995 A.2d 189 (D.C. 2010))



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