Illinois family law does not allow common law marriage between persons who choose to cohabitate, however, the state law does recognize common law marriages that began legally in other states. Persons who entered a legal common law marriage in a state that allows them must seek a divorce before getting married in Illinois.
Illinois’ Double Standard
There are two rules that apply to cohabitation in Illinois. First, the state requires a license for people to marry legally. No live-in relationship in the state is considered legally binding on either party simply because of the living arrangements.
Second, the state does recognize a legal common law marriage that originated in another state. In these cases, the cohabitation partners have the same legal rights as married partners.
This “double standard” can create problems for those who end a cohabitation arrangement or seek to marry formally after ending a recognized common law relationship. An Illinois family law attorney can best sort out any given factual scenario.
When Divorce May Be Required
Under Illinois law, when people choose to live together or cohabitate, they are free to separate at any time with no legal obligations owed to the other partner because of the relationship. They may legally marry another person without taking any additional steps to nullify their former relationship.
If the cohabitation began in another state, a family law attorney would want to determine if the relationship was legally recognized there. If so, the parties must seek a divorce in Illinois before either can legally remarry.
Because Illinois does not recognize common law marriage, even persons engaged in long-term cohabitation with shared assets and property have no legal claim on each other unless they establish a cohabitation agreement. A family law attorney drafting an agreement will address:
- Ownership of shared property
- Parental support and responsibilities for children resulting from the relationship
- Division of shared assets if the parties separate or die
- Guardianship of the other party if one is incapacitated
- Other issues not defined outside of legal marriage
While common law marriage is not recognized in Illinois, many people do decide to cohabitate or have been in common law marriages in other states. An understanding of the Illinois law can help protect the rights of all parties, including those who wish to marry legally and those ending a cohabitation arrangement.