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Does Illinois Recognize Common Law Marriages?

common law marriage, Kane County family law attorneyStatistics from around the country, over the last several decades, show a marked increase in the number of couples living together prior to—and often in lieu of—getting legally married. Relationship experts have a number of theories regarding why so many couples of all ages are choosing to cohabitate, including a hesitance regarding commitment and more jaded view of marriage among certain demographics. Whatever their reasons may be, a couple who lives together for a long period of time may come to see themselves as essentially married. Some states, in fact, may even recognize such a relationship as a common law marriage, granting legal rights and responsibilities to each partner. In Illinois, however, common law marriages are not recognized.

Brief History of Common Law Marriage

By most accounts, common law marriage traces its roots to medieval western Europe. A couple wishing to get married could not always travel to a cleric or justice to formalize their marital contract. As a result, the couple would simply begin living as a married couple in all aspects of life. The practice continued as settlers reached the New World, most often, again, as the result of geographic isolation and a lack of formal legislation.

Over time, it became less and less difficult for a couple to comply with statutory requirements for a legal marriage, leading many states to stop recognizing common law marriages. According to Illinois, common law marriage has not been recognized within the state since 1905. Illinois, however, does recognize common law marriages contracted in jurisdictions in which the practice is legal.

Recent Ruling Affirms the Law

The First District Appellate Court in Illinois recently issued a ruling in a case that raised the question of common law marriage recognition. After living together for 13 years, a Cook County couple married legally then divorced after just seven months. The trial court identified the marital property as that which was acquired during the seven-month marriage and divided it in accordance with the law. The wife asked the court to consider all of the property her husband had acquired during their cohabitation as marital property as well, but the trial court refused.

On appeal, the First District upheld the lower court’s ruling, stating that throughout the duration of their cohabitation, the couple had every opportunity to get married and legalize their relationship. Because they chose not to do so, the woman’s claim was equivalent to a common law marriage property claim which the state of Illinois does not recognize.

Consider a Cohabitation Agreement

If you and your partner are living together but are not married, a cohabitation agreement could help you protect your property rights. While not equivalent to a marriage, such an agreement could formalize what will happen to jointly-owned property in the event of a breakup. To learn more about cohabitation agreements, contact an experienced Kane County family law attorney today.



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