If you live with someone and the relationship comes to an end, must you get a divorce? That may seem like a nonsensical question, but depending on where you and (s)he lived when your relationship began, you may well need to file for divorce when it ends, even though you and (s)he never got a marriage license or had a wedding.

This unique situation goes by the name of common law marriage. As FindLaw explains, common law marriages are just as legal as “regular” marriages, but you and your partner must live in one of the 16 states that allow them in order to establish one. Tennessee is not one of those states. Nevertheless, if you and (s)he established one in a common law marriage state such as Texas, Colorado, Kansas, etc., and then moved to Tennessee, you remain legally married. Thus you will need to get a divorce in order to end your common law marriage.

Common law marriage criteria

Even if you and your partner lived in a common law marriage state at the time you began living together, cohabitation alone does not establish a common law marriage. You must have met other criteria as well, including the following:

  • Both of you must have had the capacity to marry; i.e., been adults with neither of you married to someone else at the time.
  • Both of you must have intended to be married to each other.
  • Both of you must have held yourselves out as a married couple to your families, friends and others.

Common law marriage hallmarks

Some hallmarks of a common law marriage include the following:

  • The two of you lived together and shared household expenses and duties.
  • One of you went by the other’s last name, whether or not (s)he obtained a legal name change.
  • You called each other “my husband” and “my wife.”
  • You had and raised children together.
  • You filed joint tax returns.
  • You had joint bank accounts.

Remember, you and your partner need not have done all of the above in order to establish a common law marriage. Your mutual intent to treat your relationship as a marriage represents the most critical factor.