In the United States and around much of the world, the institution of marriage is recognized and promoted by providing married couple with specific benefits and rights regarding their spouse. These rights include the right to inherit, the right to a share of assets accumulated during the marriage, parental rights regarding children, and the right to make decisions after the spouse passes away.
Some believe that merely living together, or having children together, automatically creates a “common law marriage.” But this is not the case. In fact, there are only nine States that have specific laws recognizing un-solemnized marriages. Although Utah is one of the nine States, Utah’s law does not extend marital rights until the un-solemnized marriage is recognized by a Court order.
Under Utah law, in order have an un-solemnized marriage legally recognized the parties must prove that they 1) are of legal age and capable of giving consent, 2) are legally able to marry, 3) have lived together, 4) have assumed marital rights, duties, and obligations, and 4) can show that they have held themselves out to others as being married and have gained a general reputation in the community of being husband and wife. Utah Code § 30-1-4.5
To legally marry the parties must be of legal age. Generally, the age of majority in Utah is 18. However, 16 and 17 year olds can legally marry with the consent of one parent. Utah Code § 30-1-9. Also, the parties cannot already be married to someone else. Utah Code § 03-1-2. Nor can the marriage be “incestuous,” meaning, it cannot be between a child and parent, siblings, aunts or uncles and nieces or nephews, or first cousins. Utah Code § 30-1-1.
The parties must have “cohabitated,” meaning, they have lived together. This is typically the easiest of the elements to establish.
The most difficult element to establish is usually the element of proving a general reputation in the community as a married couple. Proof of this element typically includes whether one of the parties took the other parties last name, referring to each other as husband or wife, filing tax returns as married, and having their closest friends consider them married.
If any of the elements are absent, the alleged marriage will not be recognized under Utah law. For example, if “the parties’ closest friends do not consider the parties married” or they are “not consistent in holding themselves out as married to the rest of the world,” the alleged marriage will fail. Rivet v. Hoppie, 2020 UT App 21, ¶ 11, 460 P.3d 1054, 1057.
It is also important to remember that spousal “rights stemming from a common-law marriage must be perfected through a judicial proceeding before those rights take legal effect.” Matter of Adoption of K.T.B., 2020 UT 51, ¶ 109, 472 P.3d 843, 872. This can be very important if your spouse dies before having the un-solemnized marriage recognized by a court. Without the court order you may be unable to establish a right to determine the place and manner of interment or a right to inherit from the spouse.
Determining whether a couple is married can have significant ramifications. Often, disagreements arise between parties to a relationship about whether they are married, especially when the relationship is ending. A party alleging marriage may be seeking child support, alimony, or a share of assets acquired during the relationship. The other party will likely claim that there is no marriage, and therefore, no right to claim child support, alimony, or assets.
In short, if you believe your relationship is a marriage that has not been solemnized, it is advisable to seek legal counsel to discuss how the relationship can be recognized under Utah law. If you wait to do so until the relationship ends, or until after your spouse dies, you will very likely end up in a protracted legal fight.
Hastings Law 