Common law marriage Delaware is a legal framework that allows couples to be recognized as married without a formal ceremony or license in certain jurisdictions. This article examines common law marriage delaware recognition and how Delaware courts treat marriages formed elsewhere. A minority of states recognize them; elements differ.
Key Takeaways
- For Delaware readers, the key issue is recognition of marriages valid where formed; see Legal recognition of common law marriage delaware.
- Delaware does not permit in‑state common‑law marriage; see Requirements (13 Del. C. § 106).
- Delaware may recognize a marriage valid where formed, including a common‑law marriage from another state, under lex loci contractus. (Anonymous v. Anonymous, 85 A.2d 706, 715 (Del. Super. Ct. 1951); 13 Del. C. § 126.)
- Proof of status is required; if unproven, parties are treated as unmarried in Delaware. (Boyer v. Irvin, C.A. No. 2312‑S, at *8–*9 (Del. Ch. Oct. 19, 2007).)
- Recognized spouses receive Delaware incidents of marriage; see Rights and Responsibilities (12 Del. C. § 502; 16 Del. C. § 2507).
History of Common Law Marriage in Delaware
Delaware has long required ceremonial marriage under statute; courts have stated there can be no valid marriage absent statutory compliance. (13 Del. C. § 106; Berdikas v. Berdikas, 178 A.2d 468, 469–70 (Del. Super. Ct. 1962).) Modern Delaware decisions reiterate that Delaware does not recognize in‑state common‑law marriage. (Boyer v. Irvin, C.A. No. 2312‑S, at *8–*9 (Del. Ch. Oct. 19, 2007).) At the same time, Delaware honors marriages valid where formed (lex loci contractus); see Legal recognition of common law marriage delaware.
Historically, secondary sources describe informal unions in parts of the United States, but Delaware’s modern framework centers on statutory marriage and recognition of marriages valid where formed. Contemporary common law marriage delaware disputes typically turn on proof of a valid foreign marriage and the effect of Delaware’s domestic‑relations and probate statutes once status is established.
In practice, Delaware courts focus on the time and place of formation rather than re‑litigating policy choices already made by the originating jurisdiction. Where the other state’s elements were satisfied, Delaware ordinarily treats the relationship as a marriage for all incidents of state law unless a narrow public‑policy exception applies. This approach promotes consistent marital status across states.
Requirements for Common Law Marriage in Delaware
New common‑law marriages cannot be created in Delaware. Marriage requires a license and solemnization before an authorized officiant and witnesses. (13 Del. C. § 106.)
In common law marriage delaware recognition, the dispositive questions are whether the relationship was a valid marriage where and when formed and whether the parties can prove that status. Documentary proof may include records from the originating jurisdiction and contemporaneous evidence consistent with that state’s elements; without proof, Delaware courts treat the parties as unmarried. (Anonymous v. Anonymous, 85 A.2d at 715; Boyer v. Irvin, C.A. No. 2312‑S.)
Because Delaware does not create new common‑law marriages, there are no Delaware‑specific elements to satisfy. The relevant inquiry is whether the relationship met the elements of the state where it was formed and whether that status can be proven with reliable documentation and testimony.
Typical evidentiary showings include a signed declaration or affidavit of informal marriage (where the forming state allows it), deeds or titles identifying the parties as spouses, beneficiary designations, and consistent testimony from disinterested witnesses. The standard of proof in civil status disputes is generally a preponderance of the evidence. Cohabitation without mutual present intent to be married is not enough; the proponent must connect each piece of evidence to the forming state’s elements.
Legal recognition of common law marriage Delaware
Delaware courts generally recognize marriages valid where formed, including common law marriage delaware formed where authorized, under lex loci contractus. (Anonymous v. Anonymous, 85 A.2d 706, 715 (Del. Super. Ct. 1951).) Statutory text is consistent with this approach: Delaware does not invalidate an otherwise lawful “common‑law or other marriage” solely for lack of a Delaware license. (13 Del. C. § 126.)
In common law marriage delaware disputes, the proponent bears the burden to prove a valid marriage under the foreign state’s elements; absent sufficient proof, Delaware will not confer spousal rights. (Boyer v. Irvin, C.A. No. 2312‑S.) Proof contests are fact‑intensive; see Requirements for typical evidence and burdens.
Illustration: A couple alleges a Texas informal marriage based on a signed declaration and years of holding out as spouses. If the Texas elements are established with competent evidence, Delaware will recognize the marriage for purposes of divorce, support, and succession.
Rights and Responsibilities of Common Law Spouses in Delaware
Once common law marriage delaware is recognized, spouses generally receive the same incidents of marriage as couples married under Delaware law, including access to divorce remedies, property division, and support. Surviving spouses also receive intestate shares per statute. (12 Del. C. § 502.)
Health‑care decision‑making may be exercised by a spouse acting as a surrogate if statutory conditions are met. (16 Del. C. § 2507.) Eligibility for employment benefits depends on plan terms, but state recognition of marital status is often a predicate.
If recognition fails—because the alleged marriage was not valid where formed or cannot be proven—parties ordinarily lack spousal entitlements and must rely on non‑spousal theories where available. (Boyer v. Irvin, C.A. No. 2312‑S.)
When recognition is granted, Delaware treats spouses as married for purposes of remedies and collateral rights. If recognition is denied, parties must proceed, if at all, under non‑spousal theories such as contract, equity, or partition.
Application: Suppose a surviving partner asserts spousal status to claim an intestate share. If the foreign marriage is recognized, the court applies the surviving‑spouse provisions and related exemptions. If recognition fails, the claimant cannot rely on spousal statutes and may instead pursue equitable claims like unjust enrichment tied to jointly acquired property.
Establishing a Legal Marriage
Delaware marriage requires a license and solemnization before an authorized officiant and witnesses. (13 Del. C. § 106.) Noncompliance with these statutory formalities prevents creation of a valid in‑state marriage.
The Characteristics of Common Law Marriage
Common‑law marriage turns on mutual present intent to be married and holding out as spouses, as defined by the forming jurisdiction. Disputes typically focus on contemporaneous records and credible testimony establishing those elements.
Challenges in Asserting Rights in Common Law Marriages
For example, a couple may claim a common‑law marriage but lack sufficient evidence of cohabitation or mutual present intent. In that circumstance, they face obstacles asserting rights in court.
Common Law Marriage in Other States
Recognition policies vary by state; verify elements and cutoff dates in the state of formation. (NCSL overview.) Where a marriage was valid where formed, other states typically honor it, subject to narrow public‑policy exceptions; see Legal recognition of common law marriage delaware.
Some jurisdictions—such as Texas and Colorado—still recognize common‑law marriage; many others do not. Clients should confirm the precise elements of the state of formation before asserting marital status in Delaware.
How to Establish a Common Law Marriage in Delaware
New common‑law marriages cannot be formed in Delaware. Parties who believe they entered a common‑law marriage in a jurisdiction that authorizes such unions should gather evidence satisfying that jurisdiction’s elements (e.g., records, contemporaneous documents, and witness testimony) for Delaware recognition. (Anonymous v. Anonymous, 85 A.2d at 715.)
If status is disputed, a party may petition a Delaware court for a determination for purposes of divorce, support, or succession. The court will evaluate the foreign jurisdiction’s law and the credibility of the proffered evidence. (Boyer v. Irvin, C.A. No. 2312‑S.)
Parties seeking recognition should organize certified records, contemporaneous documentation, and corroborating testimony tied to the law of the forming jurisdiction. Counsel can then petition for a status determination so that Delaware courts can apply domestic‑relations or probate remedies as appropriate.
Frequently Asked Questions (FAQs)
What does Delaware require to recognize a common‑law marriage from another state?
Delaware applies lex loci contractus—if the marriage was valid where and when formed, it can be recognized here (see Legal recognition of common law marriage delaware).
What kinds of proof are most persuasive in Delaware recognition disputes?
Certified records and sworn testimony from disinterested witnesses are persuasive; deeds or titles and beneficiary designations also help (see Requirements). Cohabitation alone is insufficient without proof of mutual present intent under the forming state’s law.
If Delaware recognizes the marriage, what rights follow?
They mirror those of Delaware‑licensed marriages (see Rights and Responsibilities).
How can a party ask a Delaware court to determine marital status?
A party may file a petition seeking a status determination for purposes of divorce, support, or probate. The court will evaluate the other state’s elements and assess the credibility of the evidence presented.
Does Delaware allow parties to create a new common‑law marriage inside the state?
No. See Requirements; Delaware requires a license and solemnization. Recognition issues arise when the marriage was formed elsewhere under a jurisdiction that authorizes common‑law marriage.
This article is general information, not legal advice. Local rules govern.
