Common Law Clarification


As I understand it, North Carolina doesn’t recognize common law marriages except where a common law agreement was created in a state that does recognize common law marriages.

My question is this…

I’ve been in a relationship (in NC) for 10 years and, during that 10 years, I was relocated to Ontario, Canada and was recognized as common law while living there. The mortgage, deed, bank accounts, and credit cards were in both our names and we do not have any children.

We moved back to NC after 2.5 years. Currently, her name is not on the mortgage, deed, bank accounts, or credit cards, but she is on my cell phone plan and listed as a domestic partner for health benefits.

Does this situation constitute a recognized marriage in the state of North Carolina?


No, North Carolina will not recognize this relationship , or any other for that matter,as a common law marriage.


So even though we were considered by Canadian law as common law partners, North Carolina won’t recognize that?

The reason I ask, is that I found somewhat contradictory information on the NC Bar Association website that says:

“Common law marriage or marriage by consent is not recognized
in North Carolina. However, common law marriage may be
recognized by North Carolina if the parties have engaged in behavior
in another state which would be recognized by that state as
common law marriage
. Marriage between individuals of the same
gender is not recognized as valid in North Carolina, regardless of
where the marriage was obtained.”


My apologies. I missed the part about your living in Canada after the decade you spent here in NC. North Carolina will recognize the relationship as marital in nature, and any property you acquired after the date that your common law marriage was recognized in Canada will be subject to the Equitable Distribution Laws.


Thanks for the response. Do you know how the following definition of “spouse” in Canadian law would affect this, if at all? We only lived together in Canada for 2.5 years.

I’m just a bit confused as to how Canadian laws/regulations would apply to North Carolina laws/regulations and which would take precedence as Canadian laws around common law are a bit muddy.

“SPOUSE – Under the Family Law Act a spouse is defined in one of two ways. For purposes of dividing property or for issues concerning the matrimonial home, a spouse must be a man and woman who are married to each other or who went through a marriage ceremony in good faith. For the purposes of determining support, a spouse is a man or woman who have lived together for three years or less than three years if they have had a child together.”


Something else I found in regards to Canadian law regarding common law.

"Canadian federal law does not have “common law marriage”, but various federal laws include “common law status,” which automatically takes effect once two people have lived together for two years and thus partners may be eligible for various government benefits of married spouses based upon their relationship with the individual who is eligible for some type of family based benefit. As family law varies between provinces, there are differences between the provinces regarding the recognition of common law marriage.

In Ontario, a common law province, the Ontario Family Law Act specifically recognizes common law spouses in sec. 29 dealing with spousal support issues; the requirements are living together for three years or having a child in common and having “cohabitated in a relationship of some permanence.” However, the part that deals with marital property excludes common law spouses as sec. 2 defines spouses as those who are married together or who entered into a void or voidable marriage in good faith. Thus common law partners do not always evenly divide property in a breakup, and the courts have to look to concepts such as the constructive or resulting trust to divide property in an equitable manner between partners. Another difference that distinguishes common law spouses from married partners is that a common law partner can be compelled to testify against his or her partner in a court of law. "


It appears as though your are not common spouses for the purposes of property distribution as you did not fulfill the time frame. The law of the particular province you lived in will be the controlling law related to this case.


Thanks again…I’m working to get a consultation with a local law firm now to go over the specifics!