Is Common Law Marriage Recognized in North Carolina?

Unlike many states, North Carolina does not recognize common law. However, under the Full Faith and Credit Clause of the constitution, a common law marriage that is validly contracted in a sister state may be recognized within North Carolina. Case law has shown that circumstantial evidence that parties have lived together as a married couple such as husband and wife, held themselves out as husband and wife or gained a reputation as a married couple, may be used to prove or raise a presumption of a ceremonial marriage.

G.S. 51-1 requires consent and solemnization

In North Carolina, a marriage is created by statute rather than by conduct. G.S. 51-1 provides that a valid and sufficient marriage is created by the consent of persons who may lawfully marry, “presently to take each other as husband and wife, freely, seriously and plainly expressed by each in the presence of the other”, together with an act of solemnization. The section gives two solemnization routes: in the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate, with “the consequent declaration by the minister or magistrate that the persons are husband and wife”; or in accordance with any mode of solemnization recognized by any religious denomination, or by any federally or State recognized Indian Nation or Tribe.

The text of G.S. 51-1 as enacted speaks of “a male and female person”. That limitation is unenforceable following Obergefell v. Hodges, 576 U.S. 644 (2015), which holds that same-sex couples may exercise the right to marry in all States, and the section has not been rewritten to reflect it. The requirements that survive and are applied are the ones that matter here: present consent, expressed by each party in the presence of the other, and an act of solemnization.

Because the section requires that act of solemnization, agreement alone does not produce a marriage in this State. That is the statutory reason a couple who live together in Charlotte for decades, hold property jointly and present themselves as married do not become married under North Carolina law, however long the arrangement lasts. No period of cohabitation supplies the missing element, and no conduct short of the statutory ceremony does either.

A common law marriage created in another state can be recognized here

In North Carolina, the courts distinguish between creating a common law marriage and recognizing one. The Supreme Court of North Carolina held in State v. Alford, 298 N.C. 465 (1979), that a common law marriage or marriage by consent is not recognized in this State, but that the courts of this State will recognize as valid a common law marriage if the acts alleged to have created it took place in a state in which such a marriage is valid.

That is an application of the ordinary rule that the validity of a marriage is judged by the law of the place where it was contracted. The question in a North Carolina case is therefore not what North Carolina requires, but what the other state required at the time, and whether the couple did those things while they were in that state. Sporadic visits are generally not enough; the elements of the other state’s law have to have been satisfied there.

The practical effect is that whether a couple are married can turn on where they were living during a particular stretch of years, rather than on anything either of them intended. A couple who satisfied another state’s requirements while resident there, and then moved to Mecklenburg County, do not lose a marriage by crossing the State line. A couple who never satisfied those requirements do not acquire one by living in North Carolina afterwards.

What has to be proved, and by whom

In North Carolina, the party asserting a marriage carries the burden of proving it. Where the claim rests on a common law marriage contracted elsewhere, that means evidence of the couple’s presence in the other state, of a present agreement to be married made there, and of whatever additional elements that state imposed — commonly cohabitation and a holding out to the community as husband and wife.

The evidence is usually circumstantial. Joint tax returns, insurance and benefit enrolments, deeds and leases, correspondence, and the testimony of people who knew the couple at the time all bear on it. Because the relevant state’s requirements may have changed — several states that once permitted common law marriage have since abolished it prospectively — the date on which the elements were satisfied can be as important as the conduct itself.

The question usually surfaces at one of two moments: a separation, when one party wants the claims that Chapter 50 gives spouses, or a death, when the survivor claims a share of an estate. In the second situation the person best placed to describe the alleged agreement is no longer available to describe it, which is why documents created at the time tend to carry more weight than recollection.

The rights that turn on the answer

In North Carolina, a great deal follows from whether a couple is married. Equitable distribution under G.S. 50-20 operates only on marital property, defined as property acquired “during the course of the marriage and before the date of the separation of the parties”. Alimony under G.S. 50-16.3A depends on a finding of a dependent spouse and a supporting spouse as defined in G.S. 50-16.1A, and postseparation support under G.S. 50-16.2A depends on the same status. An absolute divorce under G.S. 50-6 presupposes a valid marriage to dissolve, and the cut-offs in G.S. 50-11 that follow a divorce judgment have nothing to operate on where there was no marriage.

The same is true after death. Intestate succession, the right to petition for an elective share, the year’s allowance and the right to administer an estate all depend on the survivor being a spouse, and G.S. 31A-1 sets out the acts that bar those rights where the status exists. A couple whose relationship is not a marriage in law falls outside all of it, and no length of shared life supplies the status.

Unmarried couples are left to ordinary law

In North Carolina, an unmarried couple who separate have no claim under Chapter 50 arising from the relationship itself. There is no support obligation between them, no division of property acquired during the relationship, and no equitable distribution. What remains are the ordinary rules of contract and property — express agreements, the state of the title, contributions that can be traced, and claims in equity where the facts support them.

Children are treated differently, and their position does not depend on their parents’ marital status. Custody is decided under G.S. 50-13.2(a) on the standard of what will best promote the interest and welfare of the child, and child support obligations arise from parentage rather than from marriage.

Protection from domestic violence does not depend on marriage either. Chapter 50B applies where there is a “personal relationship” as defined in G.S. 50B-1(b), and that definition reaches current or former spouses, persons of the opposite sex who live together or have lived together, persons related as parents and children including others acting in loco parentis to a minor child, persons related as grandparents and grandchildren, persons who have a child in common, current or former household members, and persons of the opposite sex who are in a dating relationship or have been in one. The category of current or former household members is not qualified by sex. Where a personal relationship exists, G.S. 50B-1(a) defines domestic violence as the commission of one or more listed acts upon an aggrieved party or upon a minor child residing with or in the custody of the aggrieved party, other than acts of self-defense.

Common questions

How long do a couple have to live together to be married in North Carolina?

There is no period of cohabitation that creates a marriage in this State. G.S. 51-1 requires present consent expressed by each party in the presence of the other, together with solemnization before a minister or a magistrate, or in a mode recognized by a religious denomination or by a federally or State recognized Indian Nation or Tribe. Living together, sharing finances and using the same surname do not substitute for that, whatever the duration.

Will North Carolina recognize a common law marriage from another state?

It can. Under State v. Alford, 298 N.C. 465 (1979), North Carolina courts recognize as valid a common law marriage if the acts said to have created it took place in a state where such a marriage is valid. The question becomes whether that state’s requirements were met while the couple were there, which is proved on evidence of their conduct and residence at the time. The party asserting the marriage bears the burden of proving it.

Does a recognized common law marriage have to be ended by divorce?

Yes. If a marriage is valid, it is dissolved only as any other marriage is. In North Carolina that means an absolute divorce under G.S. 50-6 after one year of living separate and apart, with the residence requirement in that section and the pleading requirements in G.S. 50-8 satisfied, or a divorce under G.S. 50-5.1. Claims for equitable distribution and alimony are available in the same way, and are subject to the same cut-offs in G.S. 50-11.

What happens to property when an unmarried couple separate in North Carolina?

Chapter 50 does not apply. Equitable distribution under G.S. 50-20 is confined to marital and divisible property, which presupposes a marriage, and there is no support claim between unmarried partners. Property is resolved on ordinary principles — titles, deeds, express agreements and traceable contributions. Custody and child support for any children are decided independently of the parents’ status, under G.S. 50-13.2 and the related sections.

Written for North Carolina law and reviewed by David P. Sheehan, attorney, Charlotte. General information, not legal advice — see the disclaimer.