Family & Safety

The following question was originally submitted to John Roska, a lawyer Someone who represents clients in courts or who gives legal advice and writer for the weekly column "The Law Q&A" in the Champaign News Gazette. The article has been updated to include changes in the law and additional information.

Question

I lived with a woman for 12 years. We were never married. The woman I lived with called our relationship a "common law marriage." After we broke up several years ago, I married another woman. We had a regular ceremony, with a license. The woman I used to live with still calls herself my common-law wife. She says we are still "married" because we never got divorced. She says my marriage to my current wife is not valid. She says that she will inherit from me when I die. Is there any truth to what she says?

Answer

Not if you were living with her in Illinois. Common law marriages are not valid in Illinois, and have not been valid since June 30, 1905! You need a license to be legally married in this state. The marriage also has to be “solemnized” by somebody authorized by the State of Illinois to solemnize marriages.  Finally, the marriage certificate has to be “registered” with the county clerk. Unless you entered into a common law marriage in another state that allows them or allowed them while you were living together, and subsequently moved to Illinois, you were not married. Your current marriage is valid and your former live-in has no inheritance rights.

Illinois will recognize common law marriages that are valid in other states. But if you did not move to Illinois with an already valid common law marriage, you did not get one here. 

If you had a common law marriage that was valid in another state (and, note, only eight states currently allow common law marriage), and was treated as a marriage in Illinois, the woman you used to live with would be right: you would still be “married” to her. That is because a common law marriage when it is valid is just as legal as a licensed, ceremonial marriage. And like any "real" marriage, you would have to get divorced to end it.