How Common Law Marriages Work in Illinois
What is Common Law Marriage?
A common law marriage is an arrangement where an unmarried couple presents themselves to friends and family as married but does not get legally married. Couples in states with common law marriage get many of the same rights as a married couple.
In most states, there is no specific amount of time a couple has to be together to be considered in a common law marriage. Instead, a couple only needs to have the legal ability to marry, both intend to marry, and present themselves as a married couple.
Common law marriages have existed for over 100 years but are relatively rare today. They are now only recognized in a handful of states. Even then, many of the states that do recognize common law marriages have strict restrictions.
To complicate things further, specific definitions of what constitutes a common law marriage vary from state to state.
As you can imagine, it can be difficult to prove the existence of a common law marriage in court, even in states where it’s legal. An absence of written agreements means these cases are often reduced to “who said what” instead of hard facts.
Is Common Law Marriage Legal in Illinois?
Widely speaking, common law marriages are not legally valid in Illinois. Technically, the law says that a common law marriage legally established in another state will be recognized. However, in practice, unless there is overwhelming evidence it’s unlikely to be recognized.
Illinois Cohabitation Law and Property Rights
Legally, the only way to get the rights of a married couple in Illinois is by actually getting a marriage license. As far as the Illinois courts are concerned, even couples who have lived together for many years have no automatic legal protections when they split up. Despite this, many myths about common law marriages persist and can lead to unexpected and devastating consequences.
Traditional marriage is still the safest way to guarantee your rights in child custody, child support, property, and finances.
Despite this, there are of course couples that prefer to live together without legally getting married. For those couples, it is possible to enter into a Cohabitation Agreement. This is a legally binding contract between two consenting adults that establishes how finances and property are divided. There are limitations to these agreements. You can’t legally determine child custody or support through them, but they do offer some level of protection for couples cohabitating for the long term.
Frequently Asked Questions
Are you legally married after living together for 7 years?
To be clear, you cannot enter into a common law marriage in Illinois, no matter how long the relationship lasts. Even if it did, the idea that a common law marriage kicks in automatically after a certain amount of time is a myth. How the seven-year number started getting thrown around is anyone’s guess, but one thing is clear: it is not true.
Even in states where common law marriages are legal, time is generally not the most important factor. Usually, it’s how a couple presents themselves, their living arrangements, and how they’ve commingled financially and in other parts of their lives that make the difference. Couples often have to publicly refer to themselves as husband and wife, or refer to each other as spouses.
If you met all the requirements for a common law marriage in a state that does allow it then came to Illinois, it may be recognized. That is only true if you already met the legal requirements of a common law marriage in the state you left. But in practice, these circumstances can be difficult to prove.
When was common law marriage abolished in Illinois?
Common law marriage was abolished in Illinois in 1905. Since then, Illinois courts have upheld time and time again that a cohabitating couple does not have the same rights as a legally married couple.
Around the country, the trend has moved away towards recognizing common law marriages. As recently as 2016, Alabama abolished common law marriages. In the US, only around 11 states still recognize common law marriage and some of those with heavy restrictions.
However, just because common law marriage is not recognized, there are ways of entering into legal agreements with an unmarried partner. If you and your spouse still do not want to get married but want to protect each other, you should consult an attorney to see what can be done.
Can my common law partner kick me out?
Despite the many myths still circulating out there, there are no automatic legal protections provided for unmarried couples by Illinois law. Without another legal precedent, there’s nothing stopping one spouse from evicting another.
In other words, Illinois could not legally prevent someone from being kicked out of a residence on the basis of a common law marriage. But if both people’s names were listed on the lease, you could argue against it on those grounds.
What rights do unmarried couples have in Illinois?
Unmarried couples in Illinois do not have any built-in legal protections, regardless of how long the relationship has lasted. Times have changed, and many couples choose to live together and commingle finances while not getting married. However, as recently as 2016 the courts upheld that only married couples have the right to split property and gain inheritance.
This has led many couples to create cohabitation agreements instead. Cohabitation agreements are similar to prenuptial agreements, but don’t require an actual marriage to be recognized by the courts. There are limitations to cohabitation agreements, especially in regards to children.
Executing a will is also an option for unmarried couples to protect their partner after one of them passes away.
Can an unmarried partner inherit money or property?
The only way for an unmarried partner to inherit is by executing will. If you pass away without a will, the assets would be passed down according to Illinois intestate laws.
However, these laws mostly apply to personal property like cars and the home. Things like life insurance policies will pay out to the named beneficiary.
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