A common law marriage refers to a traditional marriage alternative in which a couple has lived together for a period of time, and presents themselves as married. The couple has not ever gone through a formal marriage ceremony, nor have they obtained and signed a marriage license. Instead of obtaining a marriage license, the couple living together may intend to be married at some point.

Another situation in which common law marriage frequently occurs is when there is no capacity to be legally married. An example of this would be a couple moving in together in a state that recognizes common law marriages, while one person is going through a divorce. The couple cannot legally marry each other until the divorce is finalized. However, the state may recognize their arrangement as a common law marriage.

Generally, once a common law marriage has been established, it is considered to be just as valid and legally binding as a traditional marriage. However, a couple that has been living as a married couple may find that their marriage is not actually valid.

What Is an Invalid Marriage?

An invalid marriage is, quite simply, a marriage arrangement that is not recognized as valid and legal by the law. Marriages that are found to be invalid may require an annulment instead of a divorce when the couple no longer wishes to be married, or when the marriage must be dissolved due to its invalidity.

Some specific examples of circumstances in which a marriage may be invalid include:

  • Bigamy: Bigamy occurs when one spouse is already married to someone else; or, when either or both of the people involved in a relationship are wrong in their belief that a previous marriage ended because of death or divorce;
  • Incest: Most state laws define incest as sexual relations with a close family member. Incest is illegal in all U.S. states under sex crime laws. A marriage will likely be invalid if it was entered into by two people who are related to each other. It is important to note that some states do allow marriages between first cousins, while others do not;
  • Underage: The age in which a person may legally marry varies from state to state. In general, the range is between sixteen and eighteen years. Marriages may be invalid if one or both parties are not legal age to be married. Most states will exempt an underage marriage if both parents of the minor consented to the marriage;
  • Sham: A sham marriage is fairly straightforward. The couple did not intend to wed for the sake of marriage, but in an effort to reap certain benefits or evade specific circumstances. An example of this would be if two people married in order to receive greater military benefits but were not actually in a relationship with each other;
  • Fraud: States may void a marriage if one spouse can prove that their partner misled them into the marriage. An example of this would be one spouse proving that the other lied about their ability to have children in order to persuade them to get married;
  • Incapacity: It is not illegal for those with mental illnesses to marry. However, a marriage may be invalid if a person with mental illness could not understand what marriage is. If the person who is mentally ill cannot understand and consent to the marriage, it will be rendered invalid;
  • Proxy: Both spouses must be present at the time in which the marriage ceremony was performed. If one or both spouses were not physically present at the time, the marriage is invalid; and
  • Duress: Similar to fraud, a marriage may be invalid if one spouse proves that the other coerced them into the marriage.


What Else Should I Know About Invalid Marriages?

It is important to understand the differences between a void marriage and a voidable marriage. A void marriage refers to a marriage that is invalid from the time it occurred. As such, it is treated as though it never existed. Void marriages may be annulled upon the death of one of the alleged spouses. Additionally, any third party such as a government entity may challenge the marriage as being void. All states consider the following marriages to be void:

  • Incest;
  • Polygamy;
  • Bigamy; and
  • Sham marriages.

Some states also consider underage marriages to be void marriages.

Voidable marriages can be annulled if it is challenged, but if neither party involved challenges the marriage, it remains valid. The marriage can only be voidable if one of the spouses challenges the legitimacy of the marriage. All states consider the following marriages to be voidable:

  • Marriage by fraud;
  • Marriage by proxy;
  • Marriage by duress; and
  • Marriage in which at least one spouse is mentally incapacitated.

Further, some states consider underage marriages to be voidable. Generally, if your marriage is void and the court has granted an annulment, you and your former spouse are free to go your separate ways. Meaning, you have no legal obligation to one another, and no alimony or child support will be granted. Voidable marriages are still subject to alimony and/or child support rulings. Although the marriage never legally existed, courts recognize that one party may have misled and/or wronged the other party, such as cases involving fraud. In such cases, the deceiving party would be held liable for that deception.

If you believed in good faith that your marriage was completely valid, you are considered to be a putative spouse. You could still have a number of the same rights that you would have had, had your marriage been legal. Laws vary from state to state but most jurisdictions provide legal protections to putative spouses. As such, a court may require the couple go through divorce proceedings in order to dissolve the marriage. All typical rules governing property division would apply.

Do I Need an Attorney for Invalid Marriage Laws?

If you would like to be out of an invalid marriage, or if you have found out that your marriage is not valid when you believe that it was, you should consult with a skilled and knowledgeable family lawyer. An experienced family lawyer can help you understand your state’s specific laws regarding invalid marriages, as well as what your rights and options are. Additionally, they can represent you in a court of law as needed.