Explore the truth about common law marriage in Illinois. Understand its legal standing and how it impacts divorce proceedings, particularly in uncontested and collaborative cases.

The Myth of Common Law Marriage

April 8, 2025

The concept of common law marriage often sparks curiosity and confusion, especially for those navigating relationship transitions in Illinois. Many wonder if living with a partner for an extended period automatically grants the same legal rights and responsibilities as a formal marriage. In Illinois, however, the landscape of common law marriage is quite distinct. The first question is what is, exactly, a common law marriage? It is one where a couple lives together, holds themselves out to the world as if they were married, and does so for a long time but never actually is married. For example, if Taylor and Casey live together for 15 years, use the same last name, buy a house together, have children and file taxes as if they were married, in some states, but not Illinois, they might be considered to have a common law marriage

The Legal Standing of Common Law Marriage in Illinois

Illinois does not recognize common law marriages established within its borders after 1905. This means that simply living together, regardless of the length of time, does not create a legally binding marriage. The Illinois Supreme Court in 2016 reiterated the policy that non-married couples do not have common-law marriage rights.

However, Illinois does acknowledge common law marriages that were validly created in states that recognize them. If a couple establishes a common law marriage in a state that permits it, and then moves to Illinois, the marriage will generally be recognized here. This can be relevant when couples who have moved from other states seek a divorce in Illinois.

Impact on Divorce-Related Issues

 

For couples who have lived together for a long time in Illinois without a formal marriage, the lack of legal marriage status can significantly affect how assets and responsibilities are handled during separation.

 

  • Property Division: In a traditional divorce, marital property is divided according to Illinois law. However, for couples who are not legally married, property acquired during their cohabitation may be subject to different legal principles, such as contract law or equitable principles. This can lead to complexities when determining who owns what.

 

  • Support Obligations: Spousal support (alimony) is a legal concept tied to marriage. Without a legal marriage, one partner cannot typically seek spousal maintenance from the other. However, other legal avenues might be available, such as claims based on implied contracts or unjust enrichment.

 

  • Parenting Time and Responsibilities: Regarding children, the absence of a marriage does not affect parental rights. Both parents have legal rights and responsibilities towards their children, regardless of their marital status. Illinois law focuses on the best interests of the child when determining parenting time and parental responsibilities.

How Uncontested and Collaborative Apply in the Absence of Common Law Marriage

Even though common law marriage is not recognized in Illinois, the principles of uncontested and collaborative divorce can still be beneficial for couples who are separating. These methods emphasize cooperation, communication, and finding mutually agreeable solutions.

 

  • Uncontested Approach: If both parties can agree on how to divide assets and handle parenting matters, they can create a written agreement that outlines their terms. This agreement can be presented to a court for approval, ensuring it is legally enforceable.

 

  • Collaborative Approach: In situations where there are disagreements, a collaborative approach can help parties work together to find solutions. This involves both parties and their attorneys working together in a non-adversarial setting to reach a settlement.

 

FAQ: Common Law Marriage in Illinois: Fact or Fiction

Q1: Does Illinois recognize common law marriage?

A: No, Illinois does not recognize common law marriages that were established within the state after 1905. Simply living with someone, even for many years, does not create a legal marriage in Illinois.

Q2: What happens to property and support if we break up in Illinois after living together for a long time but are not legally married?

A: Since Illinois doesn’t recognize common law marriage, the division of property and support obligations are not handled the same way as in a divorce. Property disputes may be resolved through contract law or equitable principles, and spousal support is generally not available.

Q3: How can uncontested or collaborative approaches help couples who are separating in Illinois but were never legally married?

A: Even though it’s not a divorce, the principles of uncontested and collaborative approaches can still be useful. An uncontested approach can help parties create a mutually agreeable settlement if they agree on how to divide their property. A collaborative approach can facilitate negotiations and resolutions if disagreements exist.

Why Clarity Matters

 

Understanding the legal standing of common law marriage in Illinois is essential to avoid misunderstandings and potential legal disputes. If you are unsure about your rights and responsibilities, it is important to seek legal guidance.

 

If you are in the Metro East area and have questions about your rights and responsibilities during a separation, please reach out to my office. We can discuss if I am able to help you through the breakdown of your relationship.

 

Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. It is essential to consult with an attorney to discuss your specific situation and legal options.