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In 2022, common law marriage does still exist in a few states. The term common law marriage means that even though you do not have a marriage license or any other official legal documents to show that you have formed a binding relationship with another person, the courts could still view the relationship as a legally binding one, with all the associated pros and cons. Under family law, common law marriage started in the late 1800s, and while it has mostly fallen out of use, some states still recognize its existence. People can often confuse cohabitation with common law marriage, although the two are very different. The state of Illinois does not allow common law marriage, but the Illinois courts will recognize it in certain circumstances. Read on to learn more about common law marriage in Illinois in 2022.  

A couple in their homho


What is Common Law Marriage Exactly?


A common law marriage is when two people who have never legally married cohabitate and mingle finances for a certain period of time can be recognized as spouses. The commonly held belief is that if you live together as a couple for seven years or more, that constitutes a “common law marriage.” An essential element of common law marriage is that the couple holds themselves out to family, friends, and the general public as “being married,” even though they have never purchased a marriage license. The couple must also not be married to anyone else for the duration of the common law marriage. It is important to understand that simply living together is not enough to qualify your relationship as a common law marriage.  


Some factors that a court would look at when determining if a common law marriage exists are:  


  • Did one person take the other person’s last name?  
  • Did the couple sign contracts together to purchase something significant, like a home or a car?  
  • Did the couple file joint tax returns or have joint bank accounts?  
  • Did the couple have children together?  
  • Did the couple share household expenses?  


Again, remember that these things would only be considered in a state that recognizes common law marriage. An additional thing to consider is that if you are not careful, you could end up being in what a court would consider a common law marriage without meaning to, so think carefully before deciding to co-mingle with someone you are in a relationship with. In a worst-case scenario, you could end up having to split up your life just as though you had actually been legally married.  For more information on how to protect your assets read our article When To Get A Cohabitation Agreement.

If Cohabitation is Not Common Law Marriage, What Is It?


When people cohabitate, they do not fully hold themselves out as a married couple or seek to co-mingle their lives and financial assets. Simply put, if two people are dating and living together, they are cohabitating, but they are not in a common law marriage. They have separate finances, retain their separate last names, and do not tell people that they are married or otherwise seek to live as a legally married couple would.  



Is There Common Law Marriage in Illinois?


The bottom line is that Illinois does not legally allow common law marriage. In rare circumstances, Illinois will divorce a couple in a common law marriage if it was formed in another state, and that couple can prove they meet the requirements of common law marriage in that state. For example, a couple who lived in Kansas for ten years and met the legal requirements of the state of Kansas for common law marriage can ask that the state of Illinois divide their assets like it would in any other divorce. The catch here is that the couple will have to take extra steps to show that their common law marriage is valid in the state they previously lived in.  


What If You Have a Common Law Marriage Recognized by Another State?


There are a few states left that do allow common law marriage. The states of Utah, Texas (this state refers to it as “informal marriage”), Kansas, Iowa, Montana, Colorado, Rhode Island, Oklahoma, and the District of Columbia all allow common law marriage. The state of New Hampshire will recognize common law marriage for the purposes of inheritance.  


If you have a common law marriage in place that is recognized by one of the above states, Illinois will divide assets if you can prove that your common law marriage meets the requirements of the state it was created in.  

A couple having coffee


Does Illinois Offer Any Legal Protection to Parties Who Cohabitate?


The state of Illinois does not offer any legal protection if you are cohabitating and the two of you break up. If there are children from the relationship, the state has laws governing child custody and child support. If a cohabitation relationship ends, each party has no legal right to the other party’s assets. One way to potentially avoid being left out in the cold if you are cohabitating with someone is to create and sign a cohabitation agreement, which could be enforceable in a court of law. A cohabitation agreement can dictate what, if anything, will be divided if and when the couple breaks up. If you and your partner are considering making more significant purchases together, like a home or a vehicle, you should discuss having a cohabitation agreement drafted and signed before making any financial decisions. People often ignore the possibility of a breakup when things are going well, only to find out five years later that they have been sinking money into a relationship that would end and with a partner who will not act with integrity if not forced to by a written contract.  For more specifics on what can effect a cohabitation agreement read our article, How Does Cohabitation Affect Spousal Maintenance Or Alimony In Illinois?



If you previously lived in a state that allowed common law marriage and now live in Illinois, there are some options available to you to retain your half of the assets that were acquired during the relationship. The most important thing you can do is to find and safeguard any evidence that will prove to a court of law that you were involved in a common law marriage. You should also schedule a consultation with an experienced Illinois family law attorney to see that your legal rights are protected. If you are considering or in the process of trying to divide assets in a common law marriage from another state, feel free to give O’Flaherty Law a call, we would be happy to help you.  

September 7, 2022
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