- Does Illinois allow common-law marriage?
- Does Illinois recognize common-law marriages from other states?
- Common-law marriage myths
Illinois lawmakers eliminated common-law marriages in 1905. No matter how long you live together or how much you feel married to your partner, you’re not legally married in the state without a valid ceremony and the proper paperwork.
Exceptions exist. For example, if you entered a common-law marriage in a state that legalizes these unions, you can move to Illinois and expect the same rights married couples have.
But in general, if you’ve met someone wonderful and want to set up a home together, you must get legally married to be recognized as married in Illinois. That step can make settling thorny estate issues easier if you split up or one of you dies.
Can you enter a common-law marriage in Illinois?
You can’t enter a common-law marriage within the state of Illinois. Legislators eliminated that option more than 100 years ago.
For two people to tap into the rights and responsibilities of marriage within Illinois, they must take the following steps:
- Obtain a marriage license. Head to the courthouse in your county to apply for a marriage license. Bring proof that you live within the state, are old enough to marry, and aren’t related to your potential spouse.
- Participate in a ceremony. You’re not required to hold a huge wedding with a white dress and a three-tiered cake. But you must exchange vows in front of someone authorized to perform marriages within Illinois for your marriage to be valid.
- Register the union. Take the marriage license signed by your officiant to the courthouse to file it. Without this step, your marriage is not valid.
If you skip even one of these steps, you haven’t entered a legal marriage in the state of Illinois. You can live together, buy property, have children, and tell other people you’re married. But your union won’t be official unless you finish all three steps.
Does Illinois recognize common-law marriages from other states?
If you entered a common-law marriage in one of the handful of states that recognize these unions, you could move to Illinois as a married person. The rights given to you in the other state transfer when you make Illinois your new home.
Illinois officials might require proof of your common-law marriage. If you enter divorce discussions and ask for spousal support, for example, your lawyer might need proof of the date your union officially started. A marriage certificate from your home state would do the trick.
Know that you can’t take a brief vacation to a state like Texas and come home to Illinois as common-law married. Officials in Illinois won’t accept this tactic. If you want the rights that come with marriage, it’s best to simply get married.
Unmarried people and Illinois laws
If you don’t enter a legal Illinois marriage, you’re not entitled to the rights that married couples have. If you split up, either intentionally or through death, untangling your estate can get complicated.
Here are some issues to consider.
Unmarried people can open joint checking and savings accounts in Illinois. But the practice is risky. Your partner could grab all the funds when you decide to break up, and getting your share back could be difficult. If your partner were to do so, survivability clauses could allow you to keep the remaining balance. But you might be responsible for outstanding debts, too.
Divorcing people have rigid Illinois laws that protect their rights and ensure they negotiate a fair settlement. Cohabitating people don’t have similar protections. If things get nasty, you may have to fight for your share.
Common-law marriages were abolished in Illinois in 1905. Since then, the Illinois Supreme Court has ruled repeatedly that unmarried people do not have the same property rights as their married counterparts. If you don’t pay close attention to receipts, titles, and other formal paperwork, you could lose access to your property when you split.
Consider this example: Two unmarried people choose the perfect home. The highest-paid partner accepts the mortgage, and a home title is issued in that person’s name only. When these people split, the other party has no immediate legal access to the house.
If you choose to remain unmarried in Illinois, it’s a good idea to make careful notes of everything you buy jointly. When you do, make sure both names are on all legal documents.
Per Illinois law, children born or adopted into prohibited marriages (like common-law versions) are the legal children of both parties.
Like most states, Illinois doesn’t require marriage to establish parental rights. But things will be easier if both people are listed on the child’s birth certificate.
If you separate, you’ll follow Illinois laws regarding child custody, child support, and more. Those regulations apply whether you consider yourself married or not.
Are there exceptions in Illinois?
One important exception applies to unmarried people in Illinois. If you think you participated in a legal marriage within the state, but it turns out that your union can’t be legally recognized, you may be able to access the rights of a legal spouse.
For example, if you had a wedding ceremony in Illinois in front of friends and family but your partner didn’t hire a legal officiant and never filed your wedding certificate, you might consider yourself legally married. If you can prove you never knew you weren’t legally joined, you could have the rights of a typical spouse in your divorce.
This Putative Spouse Doctrine only protects you if you are unaware that your marriage isn’t legal. As soon as you understand that the union didn’t follow Illinois laws, you must fix things to tap into your rights. You can’t keep living together and then claim these rights years later when you split.
Common-law marriage myths
Typical common-law marriage myths can make you believe you have rights that you don’t actually have. Here are several common misconceptions people have about these unions:
- “We’ve lived together for seven years and are therefore common-law married.” Many people believe that living together for a specific time period means they’re automatically married. This isn’t true anywhere in the United States. Even places with lax laws require people to do things like tell others they’re married or register their union in a courthouse.
- “Property bought by cohabitating couples is split in half when they split.” In states with no common-law marriage, people who live together have no legal rights when they split up. The things you bought together aren’t automatically cut in half when you no longer live in the same household. If both parties don’t have their names on the documents, they can’t claim ownership.
- “I can end my common-law marriage with a common-law divorce.” People who believe that they enter common-law marriages by moving in together sometimes believe they end these unions by moving out. Legally, this isn’t possible.
If you entered a legal common-law marriage in your state with supporting paperwork, you must do the same to end your partnership. And if you didn’t enter a formal marriage, you don’t have anything to end.
- “I have children with my partner that we are raising together. We’re automatically married as a result.” In most states, including Illinois, marriage and child laws are separate. Having children together doesn’t make you married, but not being married doesn’t sever your parental rights.
At Hello Divorce, we help couples in Illinois who want to end their legal union. If you’re unsure of your status or have any questions in this regard, please feel free to schedule a 15-minute call with one of our account coordinators. Our friendly staff can answer questions and point you in the direction of services that may help, such as our certified mediation sessions and flat-rate legal advice sessions.
ReferencesAre Common-law Marriages Legal? Illinois Legal Aid Online.
Common-law Marriage by State. (March 2020). National Conference of State Legislatures.
Common-law Marriage States. (July 2023). World Population Review.
PR 87-014 Recognition of common-law Marriage. (September 1987). Social Security Administration.
What Is a Joint Account and Should I Open One? (October 2022). Illinois Legal Aid Online.
Putative Spouses and Their Rights in Illinois. DCBA Brief.
750 ILCS 5: Illinois Marriage and Dissolution of Marriage Act. Illinois General Assembly.
Common-law Marriage Fact Sheet. Unmarried Equality.