In American law, there are two types of marriage: "ceremonial" and "common law" marriage. Ceremonial marriage is the name for traditional marriages, where the spouses have a wedding ceremony and obtain a marriage license from the government. By contrast, a common law marriage occurs when two partners behave as if they're married and the government treats them as if they're married even though they didn't get a marriage license or have a wedding.
The majority of American states don't recognize common law marriage, but Rhode Island does. Common law marriages can be tricky to prove because there's no clear, bright-line quantum of proof, like the issuance of a marriage license. Instead, you have to prove, through the intent and behavior of you and your spouse, that you're married.
According to the appellate courts in Rhode Island, you only have a legally binding common law marriage if you can prove all of the following statements are true:
Both spouses share a serious intent to enter into a spousal relationship. In other words, both spouses have to consider themselves married for all legal intents and purposes. Just talking about their lives and their future together isn't enough for couples to prove they intend to be married. Both spouses should consider themselves married.
Proof of serious intent can be gleaned from the parties living together for a significant period of time, declaring themselves to be spouses, and establishing a reputation as a married couple among friends and family.
Both spouses must live together for a substantial amount of time. Living together briefly or being in a brand-new relationship isn't enough.
Both spouses behave in such a way as to lead to a belief in the community that they are married. Sometimes this is also described as "holding oneself out as married." To put it another way, the couple has to act in such a manner that others reasonably believe them to be married. For example, if the partners use the same last name, refer to each other as spouse, file joint tax returns, name each other as beneficiaries on insurance policies, or sign leases and financial documents together, that can be proof that they held themselves out as married. In addition, witnesses from the community may submit written declarations or testify about how the couple was regarded as being a married.
If there's ever a legal problem with your marriage and you have to go to court, you may have to prove that you're in a valid common law marriage. The court will require you to establish, by "clear and convincing evidence," that your relationship is a marriage. This means that you'll have to prove all of the above statements by the great weight of the evidence in your case.
If you and your partner have lived together for a short time or you have a child together, that isn't enough, in and of itself, to create a common law marriage in Rhode Island. You have to satisfy all of the criteria listed above. In addition, the normal marriage laws apply so you have to be "competent" to marry, meaning that:
Common law marriage is reserved for people who are in a romantic relationship with one another. You can't enter into a common law marriage with someone who's just a friend or a companion.
You and your partner both have to affirmatively agree to marry if you're to have a valid common law marriage and then follow through by behaving as if you're married to each other. Therefore, you're not in a common law marriage if you still talk about getting married "someday," or if only one of you believes you're married.
Sometimes people think that if they share the same surname and live together, a court will automatically deem them to be common law spouses. But that isn't necessarily the case. In this day and age, it's very common for spouses to keep their original surnames, which means that changing a last name isn't necessarily the definitive proof of marriage it once was. Changing your surname may or may not tend to prove you're married—it all depends on your unique facts and circumstances. The same can be said of wearing a ring that's purported to be a wedding ring.
Common law marriage is a real marriage and it's no less valid than a ceremonial marriage. Therefore, if you're in a common law marriage, and you want it to end, you'll have to go through a regular, formal divorce, which will confer all the rights and responsibilities of any divorcing couple, including the right to request alimony, property, child support and custody. One important distinction to note is that if you're in a common law marriage and you want to get divorced, the first thing you'll have to do is prove to the court that you have a valid marriage.
If you're planning to move away from Rhode Island or if you have any other questions about your relationship and common law marriage, please contact an experienced family law attorney for advice.