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What is a De Facto Marriage?

By Jessica Saras
Updated May 16, 2024
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De facto marriage is a term used to define the relationship between a couple who is not legally married, yet meets the civil requirements for marriage. Whether the relationship is legally recognized as a marriage typically depends on the jurisdiction in which the couple resides. In the United States, for example, most states recognize de facto marriages, although such unions are now defined as domestic partnerships. Many jurisdictions in Europe and the United Kingdom, as well as Israel, Canada, and Australia, also recognize these types of informal marriages.

Latin for in fact or reality, the term de facto is most commonly used in legal contexts. It is applied to situations in which an act exists due to circumstance, yet has not been formally established by law. In terms of marriage, a de facto marriage exists when two individuals reside together and represent themselves as spouses to the outside world.

Frequently known as a common law marriage, de facto marriage is defined by the nature of the relationship, as well as the couple’s cohabitation activities. In other words, if two individuals live with one another for a specified period of time, they may be legally married in the eyes of the law — even if no actual marriage ceremony has taken place.

In addition to living arrangements, numerous other factors may be used to determine whether a couple’s relationship meets the legal definition of a common-law union. Most importantly, both parties involved must willingly consent to the partnership, and both must be legally eligible to marry. This means both are old enough to enter into marriage, and neither of them is already married. Many areas also have strict laws that define marriage as a union between men and women only, thus restricting de facto marriages for same-sex couples.

If both parties meet the legal requirements in their area, additional variables such as activities, amount of time spent together, and financial arrangements may also be used to determine whether the relationship legally constitutes a de facto marriage. Although these exact considerations vary according to jurisdiction, most courts have specific requirements regarding the length of the relationship. The amount of time the couple has shared a residence is usually also important.

In most cases, the same rules that apply to legal marriages also apply to a de facto marriage and, as such, the relationship will often be publicly recorded. As a result, once a jurisdiction has recognized a de facto marriage, a divorce is usually required in order to end the relationship. Furthermore, common law spouses are typically subject to the same parental rights and responsibilities as married couples with regard to any children.

While de facto marriages are often held to the same legal regulations as formal marriages, in many areas, common law spouses are not eligible for the same benefits married couples typically receive. This can include benefits such as health insurance, survivor’s rights, and tax breaks. The exact laws regarding de facto marriage rights, however, vary based on the couple’s location.

MyLawQuestions is dedicated to providing accurate and trustworthy information. We carefully select reputable sources and employ a rigorous fact-checking process to maintain the highest standards. To learn more about our commitment to accuracy, read our editorial process.
Discussion Comments
By anon154568 — On Feb 21, 2011

can i know how long you have to stay together before you can apply for a de facto marriage in new zealand law? thanks anshu

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