Should New Hampshire be a common law marriage state?

Common law marriage is a legally recognized marriage between two people who have not purchased a marriage license or gone through a legal marriage ceremony.  States that recognize common law marriages may require couples to cohabitate for a certain period of time and present themselves publicly as spouses. 

Common law marriage goes back centuries, to a time when it could be difficult to travel to officials who could make a marriage legal.  Living together out of wedlock was also socially unacceptable. 

Over time it became easier for couples to get married, and unmarried cohabitation became commonplace.  Most states stopped recognizing common law marriages by the twentieth century. 

Common law marriage in New Hampshire 

New Hampshire only recognizes common law marriages for the purpose of inheritance.  Under state law couples “cohabiting and acknowledging each other as husband and wife” for at least three years can legally inherit each other’s possessions as if they were legal spouses.  If they separate before death, however, they do not have the same property rights as divorcing spouses. 

New Hampshire legislators are interested in possibly changing that law.  Earlier this year the Senate passed a bill that would create a committee “to study the issue of unmarried cohabitants, domestic partnerships, and common law marriage.”  That bill stalled in the House due to the coronavirus shutdown. 

Arguments for, against common law marriage 

Supporters of common law marriage argue that cohabitating couples should have the legal protections of marriage even if they don’t pay for an official marriage license.  For example, if one partner takes on the “homemaker” role, that person should have a right to share in retirement funds even if those funds are only in the other partner’s name. 

Common law marriage can be a challenge for courts when couples separate, however.  Judges may evaluate everything from health insurance forms to Christmas cards to decide if a couple qualifies as “married.” 

Opponents of common law marriage argue that if two people want the legal benefits of marriage – from property rights to legal decision-making – it is not burdensome for them to get legally married.  The marriage license fee in New Hampshire is $50.