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Virginia Common Law Marriage: Is it recogized?

Does Virginia recognize common law marriage? Read on for the answer to that question and info about the rights of unmarried couples in VA.

evident Editorial Team
March 19, 2024
couple cutting wedding cake

People in long-term relationships in Virginia might wonder about the legal status of their relationship and whether they might be considered common law married. A question that often comes up is: "Does Virginia have common law marriage?"

This article will answer that question and cover important related topics, including:

  • What common law marriage is generally
  • Does Virginia recognize common law marriage?
  • What rights do unmarried couples have in Virginia?
  • And more.

To begin, let's start with an overview of what common law marriage is.

Key Takeaways

Common Law Marriage: An Overview

So, what is a common law marriage, and why does it matter? A common law marriage is a legal relationship status similar to marriage that is recognized in some states but does not involve a traditional, legal marriage. Instead, an unmarried couple is essentially recognized as being married by meeting certain legal requirements even though they never officially got married.

Common law marriages used to be more prevalent but now are only recognized in a minority of states. Examples of states that recognize common law marriages include Colorado, Kansas, Oklahoma, and Texas.

Requirements for Common Law Marriage

The legal requirements for establishing a valid common law marriage vary among the states that recognize such marriages. Usually, though, requirements to establish a common law marriage include:

  • The partners introduce themselves to friends, family, and the public as being married
  • The partners can legally marry (i.e. they are of legal age and not already married to anyone else)
  • The partners have a mutual intent to be married

Despite some myths to the contrary, there is often no minimum number of years that a couple must cohabitate to establish a common law marriage. (Conversely, it also does not matter how long a couple has lived together if they do not fulfill the other criteria for establishing a valid common law marriage).

Forms of proof for demonstrating a common law marriage exists range from evidence that a couple introduces themselves as married to joint tax returns or having joint accounts.

Why does the distinction matter?

Why does it matter whether a couple is common law married or not? The distinction matters because marriage is not just a relationship status; it is a legal status that grants certain rights and benefits to the spouses. Common law spouses acquire marital rights and benefits that are normally reserved for married couples.

Benefits of common law marriage often include the following:

  • The right to inherit from your common law spouse when they pass
  • The right to spousal support (often called alimony)
  • Rights to a share of marital property if the couple divorces

However, similar to the legal requirements, note that the specific rights and benefits may vary based on state law.

Does Virginia have common law marriage?

The short answer is no, Virginia does not recognize common law marriages that have been formed inside the state.

However, Virginia does recognize common law marriages that are formed in states where they are legal. Therefore, a couple could have a common law marriage in VA if they established their valid common law marriage before moving to Virginia.

For cohabitating couples living in VA, though, Virginia common law marriage is not available, and the best way to enjoy the rights accompanying marriage is simply to get married. (E.g. marriage ceremony, marriage license, etc.).

In the absence of Virginia common law marriage, what are the rights of unmarried couples in VA? Although VA is not a common law marriage state, couples who are not legally married do have some alternatives for protecting their rights.

Property Rights for Unmarried Couples in VA

home ownership, property rights

Since there is no common law marriage in Virginia, unmarried couples often wonder what rights they have with respect to their property and finances, which often get intertwined during a long-term relationship.

It's crucial to understand that unmarried partners do not inherently have any rights to each other's property by virtue of their long-term relationship. Again, this is why the distinction between being common law married or not matters: a couple could think of themselves as being essentially married, but without a wedding ceremony and valid marriage license, they're in the same boat as any other unmarried individuals.

Cohabitation Agreements

One way for couples who bypass a Virginia marriage for more informal status is to create a cohabitation agreement. A cohabitation agreement is a legally binding contract between adults who live together, and it can establish or clarify each individual's rights regarding various topics relating to their property and finances.

Cohabitation agreements are sometimes useful for couples in long-term relationships whose financial lives become increasingly intertwined over time. They can be a particularly good idea for people with substantial assets or property, as the greater the value, the larger the headache if things ever go sideways.

Note, though, that there are some limitations to cohabitation agreements. Virginia courts might not uphold any provisions about parties' rights or obligations with respect to child custody or child support, for instance. Issues involving children turn on the best interests of the child, and an unmarried couple cannot contract their way out of child support or custody responsibilities if doing so is not in the child's best interests.

Joint Ownership

Another way that unmarried couples can protect their property interests is to consider joint bank accounts or joint ownership of property as appropriate.

If a traditionally married couple gets divorced, property division is a core part of the Virginia divorce process. Virginia is an equitably division state, so Virginia law states that marital property should be divided equitably, or fairly, between spouses. But Virginia law does not have any such requirement for "fair" property division if an unmarried couple breaks up.

Accordingly, joint bank accounts or joint ownership of property can clarify and document when partners share an interest in property (such as a car, house, or any other type of property). Otherwise, one party could be at a disadvantage if they contributed to the financial well-being of the couple but don't have ownership under their name. (Imagine if a person covers other expenses like groceries so that their partner can pay down a car, but the car is only in their partner's name).

Inheritance Rights of Unmarried Couples in Virginia

The right to inherit from your spouse is another one of the crucial marital rights that is not afforded to unmarried couples. Since there is no common law marriage in Virginia, even partners who have been together and lived together for a long time do not have the right to inherit property from their partner without official marital status.

If unmarried partners want to establish that right, they need to draft a will (or last will and testament) so that they can have a say in how their assets are distributed after they pass. Otherwise, without a will, a person's property goes through the probate process and would be governed by Virginia's intestacy laws (that is, the laws that state who inherits property from someone when they die without a will).

If an unmarried couple wants to ensure the right to inherit property from each other, they should each draft a will to reflect their wishes. The cost of making a will is nowhere near as consequential as the potential downside if your last wishes differ from what Virginia law would dictate. (Likewise, it's relatively straightforward to update your will if your circumstances change and your will no longer reflects your current preferences).

FAQs about Virginia Common Law Marriage

Does Virginia have cohabitation laws?

Previously, Virginia had a law prohibiting "lewd and lascivious cohabitation." That's right, it was a Class 3 Misdemeanor for an unmarried couple to live together in Virginia. But the Virginia legislature repealed that law in 2013.

Today, there is no law against an unmarried couple cohabitating in Virginia, but there are also no laws establishing or clarifying the rights of partners in such a situation. Combined with the lack of common law marriage in Virginia, this is why it can be so important for unmarried couples to consider options like cohabitation agreements or writing wills to the extent they want to alter the default property rights under Virginia law.

Does Virginia recognize common law marriage from other states?

Yes, Virginia recognizes common law marriages formed in other states as long as they were formed before the couple moved to Virginia. This is consistent with other states, as the Full Faith and Credit Clause of the Constitution requires states to give full faith and credit to the laws and judicial proceedings of other states.