Common Law Marriage in Washington: What You Need to Know

What is common law marriage?

Common law marriage, sometimes referred to as a marriage de facto or marriage by habit and repute, is a legal concept that has its origins in long abandoned English common law. In Washington State, common law marriages are invalidated by RCW 26.04.010; however, this has not always been the case. For some time Washington State did recognize marriages by habit and repute. A married couple who remained together for a long enough period of time and held themselves out to others as a married couple could have been considered to be married, even in the absence of a formal ceremony and marriage license. Over time, though , the state grew uncomfortable with recognizing these nontraditional relationships and eliminated the doctrine of common laws marriage.
In the eleven states that do recognize common law marriage, the requirements usually have a statutorily defined minimum period of cohabitation, although the exact length of the period varies from less than a year to upwards of ten years. Other common requirements include obtaining a marriage license, establishing joint financial accounts, sharing in household responsibilities, and holding themselves out to the public as a married couple. Cohabitation is typically listed as a required element in common law marriage states. Cohabitation is defined as living together as if married—the parties need not actually be joined in an official marriage to satisfy this requirement.

Does Washington recognize common law marriages?

Common law marriage is not recognized in Washington State. However, if a couple was married by common law in a jurisdiction where common law marriage is legal, Washington State will recognize the validity of that marriage provided that certain requirements have been met.
Washington Revised Code section 26.60.020 states the conditions which must be met for a common law marriage to be valid in Washington State: This statute indicates that the laws of other states shall control if the party seeking to enforce the foreign law applies with the laws of Washington State. In addition, a consistent line of Washington State Supreme Court cases have continued to enforce the common law marital status of parties that were married by common law in states that recognize it. See In Re Estate of Greenman, 94 Wn2d 215, 616 P.2d 628 (1980).

Options to common law marriage in Washington

In Washington, there are legal alternatives to common law marriage for partners who want the legal benefits of marriage, but do not desire to have a formal ceremony or license.
A domestic partnership in Washington State is an agreement made between two parties to live together as partners in a personal and financially. The simplest form of cohabitation is to have a notarized statement that you intend to share finances and live together as a married couple. The laws on domestic partnerships are convoluted in Washington State; however, domestic partnerships offer the same rights, responsibilities, and benefits of marriage in Washington State. A domestic partnership could be a benefit to some people because it allows them to develop the relationship with their partner before taking the step forward to marriage. Originally, Washington State defined a domestic partnership as when two people committed to each other and were at least 62 years of age, however, in 2018, this definition changed and now all forms of partnership are recognized.
Another option is to enter into a written cohabitation agreement that would legally define visitation, property division, custody, debt obligations, and a process by which to end the relationship. Similar to a pre-nuptial agreement, a cohabitation agreement provides a clear and objective view of the living arrangement that the parties intend to have in the future. This agreement is often much less expensive to formulate than the later legal proceedings if the partners choose to separate.

Unmarried couples legal rights in Washington

For unmarried couples in Washington State, the law recognizes that while marriage may enhance the legal rights and remedies available to partners during their relationship or following dissolution of marriage, non-married individuals also have significant rights and remedies under property law, contracts, family law and tort law.
Following establishment of the legal entity of a registered domestic partnership under the Washington State statutes, partners are granted substantially the same rights and legal obligations, including child support and protection, as those granted to married couples. According to the laws of our state, financial responsibility for dependent children falls to each biological parent regardless of their marital status. Despite the fact that unmarried couples may enjoy many rights afforded married couples in Washington , the Legislature has imposed on them a specific limitation in RCW 26.16.030(1) which states "Married persons shall not be liable for the ante-nuptial debts of either of the spouses incurred before their marriage or incurred while they are living separate and apart from each other." The language of this statute, in conjunction with case law, makes it clear that if you are unmarried, your creditors cannot pursue your spouse for your debts, even if community property laws in Washington entitle them to do so if a divorce occurs. In the case of unmarried domestic partners, creditors may seek satisfaction of the debt against both partners as individuals, but not against their jointly owned property.

How to legally protect your relationship in Washington

A broad stroke of the brush would depict Washington to be a "common law" state, meaning that unmarried cohabitating couples may have a "common law marriage" despite having never married. However, Washington has statutorily abolished the concept of "common law marriage" in 1909, and very few exceptions have been carved out to allow "common law marriage," as defined by the common law. Washington now provides that an unmarried couple can only be recognized as legally married if the couple has entered into a marriage license, and then solemnized their marriage with officiants, for example, clergy or a judge.
Washington does contemplate what is called a "committed intimate relationship," in which an unmarried couple can demonstrate common law marriage-like attributes to receive benefits such as alimony.
Nevertheless, for those who do not want to marry, are unsure if they are ready to marry, or merely prefer the freedom of their arrangement, the challenge of protecting unexplained assets looms over their relationship. Even those unmarried couples who have experienced the dissolution of a long-term relationship may find that their uncertain future poses challenges when it comes to preserving their wealth.
One way in which unmarried cohabitating couples can protect themselves is by entering into a "cohabitation agreement," which is the same as a pre-nuptial agreement. In these agreements, the parties can agree to manage shared expenses, compensation for household or real property services performed, and how to divide their property before the need becomes pressing. The agreement should also address what happens upon dissolution of the relationship.
For long-term relationships that end with an unmarried couple parting ways, a separate agreement may be necessary to prevent the other from taking certain assets. For example, Washington recognizes both wills and trusts as legitimate vehicles for transferring property at death.
It is important to understand that if no will is executed, or if a will is not drafted in a manner to prevent the unintentional consequence of Washington’s intestacy scheme, the laws governing intestacy may dictate the disposition of the estates of both parties. Thus, for example, a will executed by a husband in favor of his wife will include the surviving spouse in the definition of beneficiaries under Washington’s intestacy scheme if there are no children, allowing the wife to inherit the husband’s entire intestate estate.
In addition, Washington makes provision for advance medical directives by which individuals may appoint a person to make health care decisions on their behalf in the event they become incompetent. These advances directives also allow one to designate specific healthcare choices for the future.
A will or advance medical directive can meet the requirements of a "committed intimate relationship," meaning that the individual can name their significant other as a beneficiary or healthcare decision maker even where there is no express prohibition in the will or advance medical directive.
In addition, Washington law allows persons to enter into domestic partnerships. A domestic partnership allows a couple to enjoy full privileges and benefits of law typically reserved for legally married couples. Moreover, domestic partnerships can be entered into by same-sex couples.

Common law marriage FAQs

Is common law marriage recognized in Washington State?
No. Washington State does not recognize common law marriage. A common law marriage is considered invalid unless there has been a formal application or solemnization of the marriage with the proper religious or civil officials. See Washington Revised Code, RCW 26.04.010. The court will not find that a "common law" or "informal" marriage exists regardless of the length of time the couple cohabitated together and hold themselves out to be married.
Is common law marriage recognized if it was valid in another state?
No. As previously mentioned, Washington State does not recognize common law marriage. If your relationship was considered a "common law" marriage in another state , Washington State will not recognize your marriage as valid.
Does common law "divorce" exist?
No. Washington State neither recognizes nor permits a common law divorce. Since Washington does not recognize a common law marriage, there can be no common law divorce. A common law "marriage" is the relationship created through the cohabitation of a couple and holding themselves out to be married; and without a marriage license or solemnization by a duly constituted official. Since there can be no common law marriage, there can be no common law divorce. However, once the couple holds themselves out to be married and they are legally considered married, a formal dissolution (divorce) under Washington State law is required to end their marriage.