Delaware Common Law Marriage

What Is Common-Law Marriage In Delaware?

Common-law marriage is an arrangement in which a couple lives together for some time and introduces themselves to friends, family, and the community as "married," without having a formal ceremony or obtaining a marriage license. Common-law marriages have existed in the United States since 1877. In 2021, it was still legally recognized in 10 states and the District of Columbia in one form or another.

Why Choose a Common-Law Marriage?

A common-law marriage presents an acceptable balance where the people involved can do away with protocols of marriage while still enjoying some of the benefits of a formally licensed marriage. Some of these benefits include:

Tax deductions
The right to spousal support
The right to make emergency medical decisions.
Child custody rights upon divorce (if they share a kid)
Alimony and property division on relationship termination
Prison or jail visitation rights

Common-law marriages have their drawbacks. Some of these disadvantages include:

It is difficult to verify, notably in instances when one of the people involved dies without formal documents proving the existence of the relationship.
In the event of a separation, the party contesting is saddled with the burden of proof.

Marriage in Delaware

Delaware's marriage rate was 5.2 percent per 1,000 residents in 2018, a.3 percent decrease from the previous year, while the state has one of the highest divorce rates in the country at 9.4%

Does Delaware Recognize Common-law Marriages?

Unlike other states that historically allowed common-law marriages before repealing such legislation, Delaware has never recognized common-law marriage. Instead, state law allows couples who have intentions of living together under a legal arrangement without a marriage license to choose a cohabitation agreement. However, in line with the Full Faith and Credit Clause of the United States Constitution, Delaware upholds the validity of such unions that are formed in states where common marriage is a legal arrangement.

What is a Civil Union in Delaware?

A civil union, or partnership, is a legally sanctioned arrangement between two unmarried people that confers all the benefits of marriage on the parties except the title. Civil unions were created as an avenue to help same-sex couples live together when same-sex marriage was still outlawed. In Delaware, this was legitimized by the Civil Union and Equality Act of 2011. However, following a Supreme Court decision repealing the prohibition of same-sex marriages, civil unions were discontinued in 2013 with the introduction of the Delaware Civil Union Equality Act of 2013. As a result, couples in a civil union could convert to a marriage of their own volition before July 1, 2014. After that date, all civil unions were automatically converted into a marriage.

What is a Cohabitation Agreement in Delaware?

Cohabitation occurs when two people who are not married, but typically romantic or sexually intimate, live together. The parties are usually involved on a long-term, or even permanent basis. Cohabitation agreements are legal documents that give this kind of union a legal standing. In Delaware, cohabitation is allowed by state law and is a popular option for couples because it affords them total freedom to choose the terms of the arrangement without any specific conditions or requirements from the government. Like prenuptial agreements, cohabitation agreements outline each spouse's rights and responsibilities, as well as asset division rules in the event of a divorce.

Delaware Common-law Marriage and Palimony

Similar to alimony, palimony is the division of assets and property upon the termination of a union in which the parties do not have a formal marriage license. Depending on the financial structure of the relationship, monetary support is usually required by one of the parties to survive for a short while when it ends. This is to ensure that the financially dependent party is able to receive some support once it becomes clear that separation is inevitable. Common-law marriages are not recognized as valid in Delaware, meaning that there is also no provision for palimony upon the dissolution of such an arrangement.

What Are the Requirements for a Common-law Marriage in Delaware?

Since there are no laws in Delaware providing for common-law marriage, the state has no requirements for such arrangements. However, because of the Full Faith and Credit Clause, couples who come from a state that allows such unions will be allowed to continue as far as it was validly constituted. Requirements for common-law marriage vary depending on state laws, but there are general conditions that must be met, regardless of jurisdiction. These are:

They must be of legal marrying age (at least 16).
They cannot be married to someone else, as this would be bigamy, which is illegal in the United States.
They must not be suffering from mental disabilities, and must not be under the influence of drugs or alcohol to the point where their ability to understand what they are doing is impaired.
They cannot be related in such a way that their marriage would be considered incestuous.
They must live together and hold each other accountable.

How many years do you have to Live Together for Common-law Marriage in Delaware?

In Delaware, common-law marriages are not authorized no matter the number of years the couple has lived together for. The available option for resident couples who do not want a formal marriage is to sign a cohabitation agreement. This gives access to some matrimonial rights and helps to determine a legal settlement in the event of death or separation.

For out-of-state couples, there is usually a common misbelief that seven years is the required number of years to validate a common-law marriage, but this is false. Once the parties agree to live together and present themselves as married in accordance with state-provided law, their common-law marriage is official.

What is an Informal Marriage in Delaware?

Simply put, an informal marriage is an alternative way of saying common-law marriage. Typically used in the state of Texas, it has the same hallmarks of common-law marriage and is recognized by Delaware as long as the union is constituted validly. This means that if a Texas couple moves to Delaware, their informal marriage will be recognized as legitimate.

How Do You Prove Common-law Marriage in Delaware After A Divorce?

There are various instances in which a common-law marriage will have to be proved. One of such instances is a divorce or separation. In such cases, the partner insisting on the existence of the common-law marriage is burdened with providing credible evidence to convince the judge.

Establishing that the couple held themselves out as married is one of the tricky parts of the process as it is ambiguous and is entirely up to the judge’s interpretation and understanding. One of the ways to circumvent the difficulty of this requirement is by signing a common-law marriage affidavit. This notarized document shows that your union is valid alongside copies of paperwork that affirms these claims such as leases, deeds to property, and jointly owned and operated bank accounts.

Third-party websites provide an alternative to obtaining public vital records. These non-governmental platforms come with intuitive search tools that help simplify the process of accessing single or multiple records. However, record availability on third-party sites tends to vary because they’re independent of government sources. To obtain public marriage records, requesters may need to provide:

The full name of both spouses ((include first, middle, and last names)
The date the marriage occurred (month, date and year)
The location where the marriage occurred (city and county)

How Do You Prove Common-law Marriage in Delaware After Death?

Upon the death of one of the parties, it is important for the surviving partner to prove that there was a valid common-law marriage in order to enjoy inheritance benefits. Other survivor benefits such as access to the dead spouse’s pension or life insurance require concrete proof of the existence of such an arrangement before the money involved can be properly disbursed.

The steps taken in the above section also apply in situations involving death and inheritance.

Do Common-law Marriages Require a Divorce?

There is no separate process for the dissolution of common-law marriages, the couple or partner that desires to annul the union must apply for a divorce according to Delaware family law. You should note that the court will not go on with the divorce proceedings unless the couple has been separated from each other for at least six months. The exception to this is when a party is alleging misconduct. However, the contesting party should be aware that they are expected to provide infallible evidence of the misconduct before the court will grant a divorce on such grounds.

The court will provide an attorney for any party who does not have one unless they choose to represent themselves. Division of property and assets are generally easier and smoother if the couple signed some prenuptial agreements prior to their common-law marriage union.

Does a Common-law Wife Have Rights in Delaware?

Yes, a common-law wife has rights, after all, the major purpose of a common-law marriage is so that the partners are entitled to a variety of marital rights without obtaining a formal marriage license. Common-law couples are able to claim these rights, especially in relation to the division of assets or property upon divorce or death of a partner.

Can a Common-law Wife Collect Social Security in Delaware?

Social security benefits in Delaware are not available to common-law marriages because such unions are not supported by state law. However, if the couple resides in a state that supports common-law marriages, civil unions, and informal marriages, then the common-law wife is free to apply for and receive social security benefits. Note that this is based on the condition that she can establish the existence of common-law marriage.

To start with, both spouses have to file a Statement of Marital Relationship and submit it with a corresponding document from a blood relative attesting to the validity of the marriage. If a partner is seeking to claim survivor benefits, they are required to provide their statement of marital relationship, one from their blood relative, as well as statements from two blood relatives from the deceased. Documentary evidence of the common-law marriage such as rent and utility bills may also be asked for by Social Security in order to verify such a claim.

Are Common-law Wives Entitled to Half in Delaware?

Divorce proceedings in Delaware are the same for formal marriages and common-law marriages, and this includes the division of assets and property after divorce. This means that the state’s divorce laws will be applied once partners in a common-law marriage are seeking termination. Unlike Iowa or California, Delaware is not a community property state. This means that instead of dividing property equally, the court in charge of the divorce proceedings will share property in a manner it considers equitable, based on several factors. These factors include:

Length of the marriage.
Inequality in Earning Capacity: If there is a significant gulf in the earning capacity, access to business opportunities, and incomes of the partners, the court may decide to divide property in favor of the party that earns less.
Gifts: Gifts are considered separate from marital property and are not taken into account when dividing marital assets.
Age Differences: The court will take into account the ages of both parties if one partner is at an age that limits their capacity to work and earn.
Marital Faults or Misconduct: Misconducts such as adultery or abuse may result in the offending party receiving less property from the court.
Inheritance: If one of the partners is expecting to receive a huge or significant inheritance, the court might award them less property.

Other factors that might affect the court’s decision include the health conditions of each spouse, custody arrangements if they have a child, and spousal or child support from a previously dissolved marriage.

How Do You Get A common-law Marriage Affidavit in Delaware?

Couples who intend to pursue a common-law marriage and file relevant documents such as affidavits can only do so in states where such arrangements are legitimate and supported by law. Common-law marriage affidavits are not obtainable in Delaware. In the states that do support such marriages, the guidelines concerning what an affidavit should contain vary depending on the applicable law. However, there are some commonly accepted facts that are included in every affidavit. These are:

The partners' age at the time of marriage.
The date the decision was made must be included in the affidavit.
The state where the partners intend to marry.
Details of any prior marriage, whether formally licensed or common-law, including wedding and divorce dates.

When Did Common-law Marriage End in Delaware?

Unlike other states that once supported common-law marriages before barring them, Delaware has never had any legal provisions or support for these kinds of unions. The only unlicensed or informal partnerships provided for by law are cohabitations and civil unions, which were discontinued in 2013 after the enactment of the Delaware Civil Union Equality Act of 2013.

What is Considered Common-law Marriage in Delaware?

Although Delaware prohibits common-law marriages, it is compelled by the Full Faith and Credit Clause to recognize the validity of such arrangements as long as they were validly constituted in a state that supports such partnerships. To ascertain the authenticity of a common-law marriage, the laws of the state where the partners married have to be looked at. As previously stated, the requirements vary from state to state, however, two factors are essential:

That both parties are eligible for marriage.
That both parties both intend to partake in a common-law marriage.

The first requirement means that both partners must be over legal marriageable age i.e, 16, must not be married to someone else, and must not be related to each other because that will constitute incest which is illegal. The second requirement is more subjective and can be deduced from statements and actions the parties made such as referring to the other as “husband” or “wife”, as well as jointly owning property.

Is a Domestic Partnership the Same as a common-law marriage?

A common-law marriage refers to a situation in which an unmarried couple lives together and presents themselves to family and friends as married despite the fact that no formal ceremony or marriage license has been obtained. In eight states and the District of Columbia, common-law marriage is legal. To be considered common-law, there are more requirements than simply living together, but they vary by state.

A domestic partnership on the other hand is an unmarried couple who live together and wish to receive many of the same benefits as a married couple, such as health benefits. Domestic partnerships are legal in 11 states, but the manner in which they are recognized varies by state. Every state is free to define what constitutes a marriage, and what constitutes a partnership.

Does the Federal Government Recognize Delaware Common-law Marriages?

As of 2021, only Colorado, Kansas, Iowa, Montana, New Hampshire, Texas, Utah, and the District of Columbia completely recognize common-law marriage as a valid union. In Alabama, Georgia, Idaho, Pennsylvania, and Oklahoma, common-law marriages are recognized to an extent. In South Carolina and Ohio, a common-law marriage is only valid if it occurred before a certain date. Each of these jurisdictions has its own rules regarding common-law marriages. Some states have specific statutes, while others use public policy and law to determine validity.

The federal government will only recognize common-law marriages formed in states where such marriages are legal. The common-law marriage records in these states can be used by federal agencies for several documentary objectives such as income tax collation, as well as sorting out immigration issues, like obtaining permanent residency.