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What Is a Common Law Divorce?

Some countries use the term common law to represent couples of the same sex living under a marital commitment, but few jurisdictions have specific divorce laws covering same-sex relationships.
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  • Written By: Summer Banks
  • Edited By: Michelle Arevalo
  • Last Modified Date: 29 October 2014
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Common law marriage is an American term used to describe a legal binding between two people who live as a married couple without being legally married. The term common law divorce is typically used to describe the dissolution, or ending, of a marriage between two common law partners. A married couple living apart for an extended period of time will not assume a common law divorce, as an official marriage can only be ended in a court of law.

Common law marriage was first accepted as legal in medieval Europe. Over the centuries, changes made to laws have altered how these interpersonal relationships are upheld. In the United States, for instance, common law couples have to prove they have lived as a married couple, complete with using the titles of Mr. and Mrs., for a length of time as described by each state. Just because two people live together for years does not mean they are common law husband and wife.

In order to apply for a common law divorce, couples would have to be recognized by the government as married. United States citizen couples have rights in 11 states and the District of Columbia. Australia, Canada, and Israel are three countries that offer similar legal rights to couples, as well. The United Kingdom no longer accepts common law as legally binding.

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When applying for a common law divorce, couples may have to prove the relationship was more of a marriage than simply dating. If friends and family members referred to the couple as Mr. and Mrs., neither person is currently married, and both people are of legal age for marriage, a legal bond could be established. Divorce proceedings typically follow the same processes as solemnized, or traditional, marriages, complete with required separation periods, division of marital property, and child custody hearings.

Couples who are common law married do not have to end their marriage legally. Court-aided divorce proceedings are just a legal option for one or both partners. For partners who wish to end a common law marriage without legal representation, division of marital property can be done privately at home. In some cases, a mediator may help the couple divide properly evenly, without need for further legal intervention. Mediators are counselors with no connection to the couple.

Some countries use the term common law to represent couples of the same sex living under a marital commitment. While same sex marriages are regarded as legally binding in some countries, and thus require divorce to terminate, others have yet to pass legislature to recognize these binds. As of January 2010, there were no common law divorce laws for same sex couples.

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