The Basics of Common Law Marriage in Missouri

What is a Common Law Marriage?

Before we can explore the criteria for a valid common law marriage and the consequences of a divorce from such a union, we should begin by seeking to understand what constitutes a common law marriage. Common law marriage is defined as an informal agreement that two people are married, without formalization through a traditional marriage ceremony or a state-approved marriage license. This type of marriage generally must satisfy certain requirements, such as shared property ownership, joint financial responsibility, cohabitation, an agreement between the parties to be married and an acknowledgment to family, friends and the community that the two are in fact married. It was once thought that common law marriages were protected since they predated any state registration of marriage . However, since states began requiring marriage certificates, the number of common law marriages has dwindled. This was largely due to the time, expense and hassle involved in going through the court system to prove the legitimacy of such marriages. While common law marriages are still recognized in a handful of states, it’s important to check your residence’s applicability. Common law marriages have been recognized by Missouri since 1835. However, these "marriages" are only valid for purposes of property distribution and spousal support. In other words, unless you have children where parental rights must be terminated, or a divorce with property to divide, then there are no legal repercussions of having (or not having) a common law marriage in Missouri.

Missouri’s Recognition of Common Law Marriage

Missouri does not recognize the formation of a common law marriage. Missouri instructed its judges and administrative agencies to no longer recognize common-law marriages in 1963. The 1963 legislation abolishing common law marriages expressly applies only to those that occur after August 23, 1982. As set forth below, the status of common law marriages occurring from 1963 – 1982 is far less clear.
A Supreme Court case in the 1975 left "some question as to whether a common law marriage continues after the death of the party with whom the marriage was contracted if that party dies before a marriage license has been issued" (i.e. pre-August 23, 1982). Despite this case, Missouri courts have applied the abolition of common law marriage to any relationship following August 23, 1982. Additionally, the Missouri Supreme Court in 2017 stated that Missouri’s current statutes did not "give any insight into whether the state intended for common law marriages to be valid for purposes of intestate succession [i.e. wills and inheritance] prior to August 23, 1982[.]" This creates a fairly significant area of uncertainty.
Further complicating the issue is a quirk in the language of the statute abolishing common law marriage. The text of § 451.020 states that "no common law marriage shall be valid in Missouri after August 23, 1982." Despite its apparent plain meaning, this statute has long caused confusion. Many judges and attorneys have interpreted this to mean that common law marriages validly occurred prior to August 23, 1982. Missouri probate law defines one’s marital status at death in 1939. In fact, the statute abolishing common law marriage stated that common law marriages could continue to exist before August 23, 1982, for purposes of "the payment of benefits arising from any policy or certificate of insurance, any pension plan, retirement plan, social security, annuity, will or for determining any right of election under the law of this state."
This quirk was settled by a 2018 amendment to the law clarifying that common law marriages would not be valid in Missouri regardless of when they occurred. To further complicate things, the new language is retroactively effective to August 23, 1982, which means that it will not only apply to future relationships, but also to relationships which occurred pre-August 23, 1982.
Although common law marriages cannot legally occur in Missouri, some people will nevertheless believe that they are married because they had what they believed to be mutual promises, live(s) in the same house, and hold themselves out. Missouri law declares that a common law marriage will be recognized when it "is established by clear and convincing evidence that an agreement was made by both parties to be married and that a ceritfied marriages record is placed on file with the recorder of deeds in this state."
Generally speaking, common law marriage is not an effective means of contracting a marriage. A civil license provides documentation of your intent, how you can prove your marriage to third parties (e.g. banks, hospitals, tax agencies, employers, etc.), and (among other benefits) alleviates many evidentiary and other hurdles that may be prevalent in proving a common law marriage. Missouri law makes no exception for common law marriages in the case of divorce.

Effects of Not Recognizing Common Law Marriage

The decision not to recognize common law marriage has significant implications for couples residing in Missouri. These issues may relate to legal rights, tax exposure or insurance coverage. Some of the most important concerns are addressed below.
Social Security Benefits
Couples who married under common law before 1985 may still have the right to social security survivor benefits and should consult an attorney if you have any questions about eligibility for these benefits.
Children
The spouse of the deceased with legal standing as the child’s parent may file for custody of an deceased spouse’s biological or step child. In Missouri, this is true even if both parents are alive, as long the biological parent has been found unfit by the court. An unmarried biological parent may not have visitation or custody with their child unless they are awarded this right by the court. This can be especially detrimental to children after the separation of their parents, when they need the financial support of both parents for health insurance, college education or discovery and participation in extracurricular activities.
Health Insurance
In Missouri, only a legal spouse has the right to information about the other spouse’s medical treatment, diagnoses, medications, physical condition and other such medical information. As a result, you cannot make decisions about your partner’s medical care if he or she becomes incapacitated in a manner that makes them unable to communicate their wishes.
Estate Planning Considerations
Without a will or power of attorney, a partner without legal marital status is at risk of leaving their partner with no rights to inherit any money or property after their death. The partner of a deceased spouse may also have to seek a court order to manage the deceased spouse’s finances if they were unable to provide for this in the deceased’s legal documents.

Recognition of Common Law Marriage From Other States

Missouri does recognize common law marriages entered into in another state in the event of divorce. Missouri treats these valid common law marriages as any other valid marriage registered with the State of Missouri. Thus , common law spouses to a Missouri divorce can seek alimony, determination of legal title and division of property, custody and child and spousal support matters just like spouses who were validly married in the State of Missouri.

Common Law Marriage As An Alternative To Marriage

Many people desire legal protection for themselves or their romantic partner without actually marrying. When parties do not intend to marry, and yet wish to still obtain some legal recognition of their relationship, there are other options available to them.
Parties that are simply living together can negotiate and enter into a Cohabitation Agreement. A Cohabitation Agreement is a contract entered into by two parties (or multiple parties) in which they agree to live together, to share finances, and to share any property they purchase while living together. More importantly, it can clarify the distribution of assets acquired during the relationship if one of the parties decides to move out, if they decide to end their relationship, or if one or both of the parties dies. It can also address issues such as spousal support that may arise if the couple decides to separate.
A Domestic Partnership Agreement is a legally enforceable and binding contract between two parties who are in a marital-type or familial-type relationship. Domestic Partners retain the right to enjoy some of the same benefit as husband and wife (such as health care coverage, pension spousal benefits, etc.). Much like a Cohabitation Agreement, a Domestic Partnership Agreement will set forth each party’s financial obligations and rights, therefore avoiding confusion, misunderstanding and discord.
If you believe that you and your partner may benefit from a Cohabitation Agreement or Domestic Partnership Agreement, you should contact an experienced attorney to discuss your options.

Consult an Attorney if You Are Not Married

Because Missouri does not currently recognize common law marriages, unmarried couples are not entitled to the legal protections, stability, or benefits that marriage brings. In fact, general and common law property matters between unmarried individuals can be some of the most contested matters in Missouri family law. Fortunately, the Missouri legislature has provided that any "contract between persons who agree to be married to each other shall be given effect in equity" and that "each party shall have all the rights, benefits, and obligations of marriage" if the couple marries within one year after signing such a contract. In other words, if two individuals enter into a contract before marriage establishing how property (titled and contributed to individually) will be divided in the event they marry and then marry within a year, the agreement should be enforceable as a prenuptial agreement is.
Additionally, when unmarried individuals live together—either as roommates , extended family, friends or partners—they may choose to enter into a "Co-Habitation Agreement." A cohabitation agreement is an arrangement, typically written, that governs financial and other issues and controls the property rights of those who live together in a long-term relationship. Cohabitation Agreements are not recognized under common law. However, Missouri courts will honor them if they do not promote illicit sexual relations.
Before entering into a living arrangement, married or unmarried, those involved should consult with an attorney to address planning for the future. If things go badly, what are the options? How will assets be divided? What is the process for one party moving out if it does not work out? Who is responsible to fix the roof, repair the dishwasher, rake the leaves, water the plants? When unmarried people live together, the items listed above can become potential hotbeds for dispute.