Common Law Marriage Agreement

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Common Law Marriage Agreement

A Brief Introduction About the Common Law Marriage

What Is Common Law Marriage

A common law marriage agreement is a situation wherein an unmarried couple cohabits together, and hence they may be considered as a married couple for the sake of legal requirements. The definition of common law marriage is a marriage recognized in some jurisdictions based on the cohabitation of the couple and the parties’ agreement to consider themselves married.

This is applicable only in states where such a law is recognized. In this case, a couple will be recognized as being equivalent to a married couple, even if they have not had a marriage ceremony or they do not have a marriage license. There are certain requirements for a common-law marriage to be recognized. These are as follows:

  • They should be an unmarried couple residing in a state that recognizes common-law marriages.
  • They should have been cohabiting for a significant period. However, no minimum time is mentioned explicitly for how long a common law marriage should be.
  • They should behave like a married couple. This may include having joint bank accounts, filing joint tax returns, etc.

Such a couple may wish to agree to lay down certain terms as to the ownership and division of their property and how any future property may be owned by them. This is important as otherwise, a couple in a common-law marriage may not have the rights that are available to a married couple.

Who Takes the Common Law Marriage Agreement – People Involved

A common law marriage agreement is entered into between a couple that are residing together and wish to lay down certain terms as to how the various aspects of their relationship and respective assets shall be dealt with.

Purpose of the Common Law Marriage Agreement – Why Do You Need It?

The purpose of this agreement is to lay down in writing how the property of the couple will be dealt with. It will also talk about the rights and liabilities of each party. This agreement serves as a framework that provides for how the assets of the parties will be owned by the couple.

They can mention which assets shall be jointly owned by them and which properties shall continue to be held in an individual capacity. It seeks to clarify the various aspects of ownership of property and also provides for contingencies such as the separation of the couple or the death of one party. Hence the interests of both parties are protected under this agreement.

The process of divorce in a common law marriage is the same as that of traditional marriage. Hence a couple that wishes to separate will have to apply for a regular divorce like any other couple. The process of dissolution of the marriage also remains the same.

Contents of the Common Law Marriage Agreement

Like any other agreement,  this agreement must include the names of the parties who are entering into the contract, the date on which the agreement is created, and the territory in which the agreement shall be operative.

The agreement should mention the reason behind the creation of the agreement. There must be a clause that mentions how the ownership of the properties shall be held by the parties. The parties must specify which properties shall be held by them in a collective capacity, and which shall be held in an individual capacity by either of them. There must be a provision talking about how these properties shall be dealt with in case the parties split up.

Similarly, the agreement should also mention how the debts and liabilities of the parties will be dealt with.

The agreement can also talk about whether any financial support shall be given by one party to another in the case of a separation, and how much financial support shall be calculated. Generally, the party that is earning more has the responsibility of providing financial support to the other party. It can also talk about child support that shall be payable by a party if the couple separates.

The parties are required to state that they are entering into this agreement out of their own free will and that they are under no duress. The agreement will also include a certificate by the lawyers of both parties stating that the parties have received legal advice, and have signed it of their own volition.

How to Draft the Common Law Marriage Agreement

Steps to follow while drafting a common law marriage agreement:

  • The couple should have a detailed discussion about the various topics that they wish to lay down in the agreement.
  • Aspects such as the distribution of property, ownership of property, and other important factors must be discussed. This helps to avoid any confusion or dispute in the future.
  • Each party must disclose the assets and liabilities that they have. This is very important as otherwise, it may affect the binding nature of the agreement.
  • The agreement should be drafted in plain simple language, which brings out the intentions of the parties.
  • Both parties must receive independent legal advice from a lawyer.
  • The agreement should be signed by both parties after they have gone through the entire agreement carefully.

Negotiation Strategy

  • The basic strategy in this type of agreement is to ensure the rights and interests of both parties are adequately protected. It is essential that the contract is equally balanced between both parties.
  • Each party must ensure that his assets are protected under the agreement while at the same time ensuring that the agreement is balanced and fair.

Benefits and Drawbacks of the Common Law Marriage Agreement

The following are the benefits and drawbacks of having a common-law marriage agreement:

  • A major benefit of this arrangement is that the parties will be eligible for all the benefits that a spouse is eligible for. This includes insurance benefits, the inheritance of each other’s assets, and other similar benefits.
  • This agreement is beneficial for a couple that does not wish to get married but still seeks to protect their inheritance rights and take care of other factors such as child support.
  • Having this agreement in place protects in case of the death of one of the parties.
  • Through this agreement, the parties can protect their separate property and also ensure that their different debts remain separate.

What Happens in Case of Violation of the Common Law Marriage Agreement?

A common law marriage agreement is a legal contract and must be honored by both parties to the agreement. An agreement between unmarried partners can be treated as any other private contract between unmarried people and can accordingly be enforced. Any party that violates the terms of this agreement or does not perform his duties or obligations under it can be sued by the non-breaching party. If either party violates this agreement, it can result in legal penalties.

The legal penalties can extend from the breaching party being asked to hand over the property, or it may also result in fines or compensations becoming payable. It is up to the court to determine what penalty is adequate to cure the breach of the agreement.

For such an agreement to become binding on the parties, there are certain conditions that must be met. The agreement should preferably be in writing. An oral agreement between two people cannot always be proved, and it is usually the word of one person against the other. Also, it is necessary that both parties have received legal advice from their respective lawyers. This is to ensure that they are aware of the benefits and drawbacks of entering into this agreement, and the lawyer has made them aware of their rights. The lawyer must then provide a certificate saying that he has made his client aware of his/her rights and that his client has signed the agreement in his presence.

It is only after these conditions are met that the agreement may be considered a legally binding one. If the court is not satisfied that the parties have created this agreement voluntarily, it may set aside the agreement.

Although, there have been cases where the parties have successfully shown that they had an oral agreement in place that was breached by one of the parties and the courts have gone ahead and upheld it while providing adequate damages to the aggrieved party, this is; however, a rare occurrence and an unmarried couple are always recommended to create a written agreement as that helps to provide solid evidence.

In conclusion, this agreement can be beneficial in making sure that an unmarried couple manage(1)s the ownership of their assets and liabilities efficiently. It ensures that they receive all the benefits that a married couple is eligible to receive. This is necessary to protect the interests and rights of the parties lawfully.

This agreement provides financial security to the parties, and they can mutually agree on how their assets shall be combined.