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Cohabitant Rights

Approximately 12 states recognize commmon law marriage. North Carolina is not one of those states.

common law marriages from other states may be recognized in North Carolina

Reported in the 2000 United States Census, there were 5.2 million unmarried couples living together nationwide and 137,181 unmarried couples living together in North Carolina. These statistics suggest a changing demography that could impact North Carolina law.

Common law marriage in North Carolina

A common law marriage cannot be created under North Carolina law. However, a common law marriage validly established in another state will be recognized by North Carolina courts. Approximately twelve states recognize common law marriage. In those states the couple generally must do more than simply live together; generally, they must:

  • Have the intent to be married
  • Cohabitate
  • Hold themselves out to the public as if married
  • Meet other state requirements

Therefore, if a couple living in another state established a common law marriage and moved to North Carolina, they have the rights of a married couple and would also need to divorce before remarrying to avoid a bigamous second marriage. Individuals who established legally valid common law marriages in other states must follow the normal process to obtain a divorce from a North Carolina court before they can remarry.

Putative marriage

Some states recognize a putative spouse doctrine. This doctrine allows a person who proves they had a good faith belief they were married to have the rights of a true spouse. While it doesn't appear that the State of North Carolina recognizes this doctrine, some North Carolina court decisions use the same equitable principles. Contact an attorney for information on the putative spouse doctrine.

Under Federal law, a person who qualifies as a putative spouse may be entitled to Social Security benefits.

Contract rights of unmarried couples

If an unmarried couple enters an express or implied contract, North Carolina Courts will generally enforce it under contract law unless it is based on sexual services. Therefore, couples who live together often have claims to property under a contract theory. For example, if one promises to deed you half the house in exchange for "fixing it up," a contract claim may be made. Also, if the parties purchase a house together as an unmarried couple and later split up, one may have to sue the other with a Petition to Partition to divide their legal interests in the real property.

Palimony

Though "palimony" isn't a legal term, it has become understood to mean support paid by an unmarried person to their former cohabitant. At this time the State of North Carolina doesn't recognize a palimony action (made famous by the Marvin v. Marvin California decision). However, North Carolina does allow contracts between co-habitors to be enforced as long as they are not based upon sexual services.


Resources

Sign on Rice Law's secure online office Your virtual law office

Ask an attorney about cohabitant rights in North Carolina in our secure online virtual law office (registration required)

Sign on Rice Law's secure online office Marriage laws in the USA

Cornell University Law School compiled a summary of marriage laws, including common law marriage, for the 50 states