By Cheryl Hylton | Editorial credit: Ground Picture / shutterstock.com
Common-law relationships or common law marriages are recognized in some countries, provided that the man and woman have lived together for a stipulated number of years as man and wife. Jamaica and Guyana are two such countries. This article looks at common law “marriages” under the laws of Jamaica and Guyana and considers how a declaration of such a “marriage” might affect an application for legal permanent residency in the United States.
- Common Law “Marriages” under Jamaican Law
If you and your partner are unmarried and have been cohabiting for at least five years in Jamaica, you might be interested to know the following:
Under Jamaican law, single man and single woman who have cohabited (lived together in a conjugal relationship) as if they were in law husband and wife, for a period of not less than five years, are considered “spouses” as if a marriage had been solemnized by them.
One significant right of a legally recognized common law spouse under the Property (Rights of Spouses) Act of Jamaica, is the right to property acquired by either spouse during the subsistence of the relationship. This might include any real or personal property, estate or interest in real or personal property, money, negotiable instrument, debt, or any other right or interest, to which the spouses or either of them is entitled.
Distinction between a Common-Law “Marriage” and a formally Solemnized Marriage (a traditional marriage):
Some of the major differences are:
- Legal Status: A formal marriage is fully recognized under Jamaican law and carries automatic legal rights and protections, upon the marriage taking place, as evidenced by the issuing of a marriage license. Whereas a common law marriage is recognized only after the couple has cohabited for at least five years as if they were married. Additionally, this recognition is primarily for limited legal purposes, such as property division and inheritance.
- Property Rights: A married couple may claim automatic property rights upon solemnization of their marriage. Upon separation or divorce, both parties are, in most instances, entitled to an equal share of the property acquired during the marriage, unless there are special circumstances. This is particularly the case with the “Family Home”. Whereas a common law spouse’s entitlement to any such property rights may only accrue after 5 years of cohabitation.
- Inheritance Rights: Legally married spouses are entitled to inherit from their deceased partner’s estate under Jamaican the Intestate Estates and Property Charges Act, if the spouse dies without a will. Common law spouses do not have the same automatic inheritance rights, rather, they must prove that they satisfy the 5 years habitation requirement to claim any inheritance of their deceased partner’s estate, where there is no will.
- Children: A child born within a marriage is automatically considered a child of the marriage. Any paternity disputes must be settled in court. A child born in a common law relationship has the same rights as those born within a marriage in terms of child support and inheritance, however, the common law spouse may need to establish paternity if there is a dispute over parental responsibilities.
- Termination of the Relationship: A legal marriage can only be dissolved through divorce obtained from the Supreme Court of Jamaica, the second highest local Court. Under ordinary circumstances, the marriage must have broken down irretrievably and the couple had lived separate and apart for at least twelve months, for a divorce to be granted. Actions for spousal maintenance can be instituted up to two years subsequently. For Common Law Relationship, there is no formal legal process to dissolve a common law relationship. If the relationship ends, partners can simply separate.
Hence, while common law relationships in Jamaica provide some legal protections, especially after five years of cohabitation, they do not offer the same level of rights and recognition as formal marriages. Legal marriage provides automatic rights to property, inheritance, and support, while common law partners may need to take additional steps to prove entitlement to similar protections.
Marriage vs Common Law – Summary of Key Differences:
| Aspect | Marriage | Common Law Relationship | |||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|
| Legal Status | Full legal recognition immediately upon the happening of a legal marriage ceremony | Recognized only after 5 years of cohabitation.Party may make application to Court for Declaration where the time specification is satisfied. | |||||||||
| Property Rights | Usually, 50/50 split of matrimonial property (not always applicable, in some in stances contribution must be proved) | Must prove 5 years cohabitation to be eligible for 50/50 share of Family Home (or must show contribution) | |||||||||
| Inheritance | Where there is no Will, automatic inheritance rights under the law of intestacy. | Where there is no Will, must prove 5-years cohabitation. | |||||||||
| Spousal Maintenance | Eligible for spousal support after separation | Not automatically eligible. | |||||||||
| Children’s Rights | Equal rights for children in marriage. Husband is presumed the father of child born within the subsistence of the marriage | Equal rights for children; However, where paternity disputes arise common law father must prove biological paternity. | |||||||||
| Termination | When a Decree Absolute is issued by the Court. The marriage must have broken down irretrievably and the parties separated and lived apart for at least 12 months. | When cohabitation ends. No formal divorce process required. |
- Common Law Marriages under Guyana Law.
As under with Jamaica, under Guyanese law, a common law “marriage” [sometimes referred to as concubinage] refers to a relationship where a couple cohabitates as husband and wife for at least five continuous years. Here too, a legally recognized common law marriage affords the partners certain property and inheritance rights. These include:
- Property Rights: The Married Persons Property Act in Guyana recognizes property rights for couples in common law unions. For example, if the couple has lived together for a long period and has jointly acquired assets, both parties may have a claim to the property, even if it is registered in only one partner’s name.
- Inheritance Rights: In cases of inheritance, the surviving partner in a common law relationship may have the right to inherit some portion of the deceased partner’s estate if the couple has cohabited for at least five years before the death. However, the rights of common law partners in inheritance matters are not as extensive as those of legally married spouses.
- Children in Common Law Relationships: Children born within a common law union have the same legal rights as children born in registered marriages. This includes rights related to child support and inheritance from either parent.
- Dissolution of Common Law Relationships: Unlike formal marriages, common law relationships do not require a legal divorce. However, when a long-standing common law union ends, disputes over property and assets may be handled in court, and the court may divide property based on the contributions of each partner.
Marriage vs Common Law – Summary of Key Differences:
| Aspect | Marriage | Common Law Relationship | |||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| Legal Status | Full legal recognition as at date of Marriage | Recognized only after 5 years of cohabitation | |||||||||||||||||
| Property Rights | Automatic 50-50 split of marital property | Must prove contributions and 5 years of cohabitation | |||||||||||||||||
| Inheritance Rights | Automatic inheritance rights for surviving spouse | Must prove relationship, no automatic rights | |||||||||||||||||
| Maintenance | Entitled to maintenance (alimony) | Must prove financial dependence, not automatic | |||||||||||||||||
| Children’s Rights | Equal rights, automatic parental rights | Equal rights, but paternity may need proving | |||||||||||||||||
| Termination | Requires formal legal divorce obtained through the relevant Court | No formal process for separation |
- Implications for Legal Permanent Residency in the United States
If you are you a United States citizen or legal permanent resident and desire sponsor your common law spouse for legal permanent residency in the United States, here’s what you need to know:
Recognition of Common Law Marriage by U.S. Immigration Authorities:
- Common Law Marriages are recognized by USCIS for Immigration Purposes:
The U.S. Citizenship and Immigration Services (USCIS) requires a legally valid marriage for one spouse to sponsor the other for lawful permanent resident (LPR) status (a green card). This generally means a marriage recognized by the state or country in which it took place. If the couple is in a common law relationship and the state where they live recognizes common law marriages, USCIS will treat the relationship as a valid marriage for immigration purposes, if the common law marriage was recognized as legal in the jurisdiction where it was formed. That is, USCIS recognizes common law marriages if the couple’s marriage is recognized as legally valid under the laws of the foreign country or state where the couple lived together.
The States that recognized common-law marriages include Kansas, Montana, New Hampshire (for inheritance purposes), South Carolina, Texas, Utah, Washington, D.C. and Oklahoma. Other states that recognize older common law relationships include Alabama (before January 1, 2017), Florida (before January 1, 1968), Georgia (before January 1, 1997), Idaho (before January 1, 1996), Ohio (before October 10, 1991), Pennsylvania (before January 1, 2005), and Indiana (before January 1, 1958).
Implications for Permanent Residency (Green Card) Petitions:
- Marriage to a U.S. Citizen: If the common law marriage is valid, and one partner is a U.S. citizen or lawful permanent resident, they can petition for the foreign-born partner’s green card just as a legally married couple would. The common law spouse can be sponsored through the family-based immigration process.
- Proof of Marriage: In the case of a common law marriage, proof of the relationship is critical. Since there is no formal marriage certificate in common law unions, the couple will need to provide substantial evidence of their relationship to USCIS. This may include:
- Affidavits from both spouses attesting to the common law marriage.
- Testimonies from friends, family, or community members confirming the relationship.
- Joint financial documents (bank accounts, leases, utility bills).
- Evidence of cohabitation (photos, communication records, travel together).
- Documentation showing the couple held themselves out as husband and wife (e.g., using the same last name, referring to each other as spouses in public or social settings).
If the common law marriage is not recognized by USCIS, it may complicate the green card application. In that case, the couple may need to legally marry to ensure the foreign spouse is eligible for a green card based on marriage.
Filing Process for Common Law Marriages
The spouse who is a U.S. citizen or lawful permanent resident will need to file a Form I-130 (Petition for Alien Relative) for the foreign-born spouse. For common law marriages, this petition must be accompanied by:
- Evidence of the common law marriage (as described earlier).
- Legal documentation from the country or state recognizing the common law marriage.
- Proof of bona fide marriage (documents showing the couple lives together and shares responsibilities).
Because common law marriages do not have the same formal documentation as registered marriages, they are often subject to greater scrutiny by USCIS. The agency will carefully examine the legitimacy of the relationship to ensure it is genuine and was not entered for immigration benefits. Providing clear and convincing evidence of a shared life, commitment, and financial interdependence will help strengthen the application.
If the common law marriage is recognized, the foreign spouse may also be eligible for derivative benefits under U.S. immigration law, such as work authorization or travel documents during the green card application process.
Divorce and Remarriage Issues
For United States immigration purposes, if one partner was in a previous common law marriage recognized by the jurisdiction in which it was established, that marriage must be legally dissolved before the person can enter a new marriage for the purposes of a green card application.
USCIS requires proof that any previous common law marriage has been legally dissolved before an individual can remarry and apply for immigration benefits based on a new relationship. It is, therefore, essential to demonstrate that the individual is free to marry and not still bound by a previous common law marriage. The type of proof needed depends on the laws of the jurisdiction where the common law marriage was established and ended. Whatever proof is presented must provide evidence of the legal dissolution of any common law marriage. Without this, USCIS may view a new marriage as invalid, which could hinder the immigration process.
Failure to dissolve the common law marriage could lead to bigamy issues.
Hence, individuals applying for immigration benefits through USCIS who had declared previously that they were in a common law marriage, must show proof of termination of that relationship before entering into a new marriage-based green card application.
The requirement to prove the termination of a common law marriage could prove problematic for individuals from jurisdictions where there is no legal procedure required for the dissolution of common law marriages, as is the case with Jamaica and Guyana. Under the applicable laws of Jamaica and Guyana no formal divorce is required to terminate a common law marriage. The parties simply go their separate ways when the relationship ends. Hence, proving to the USCIS that the common law marriage was terminated, could be difficult.
Proof of Termination of Common Law Relationship Accepted by USCIS:
Some examples of proof of termination of a common law marriage typically required by USCIS are :
- Court-Issued Divorce Decree: The most common form of proof is a divorce decree issued by a court. Where applicable to common law marriages in the jurisdiction where the relationship was recognized, this decree should clearly state that the common law marriage has been legally dissolved, similar to a divorce from a traditional marriage. This is not applicable to Jamaica and Guyana.
- Legal Separation Agreement: If a court does not grant a formal divorce but recognizes legal separation as a way to end a common law marriage, a legal separation agreement may be accepted by USCIS as proof. The agreement must be court-approved and outline that the relationship is legally ended.
- Annulment Documents: If the common law marriage was deemed invalid for some reason (e.g., failure to meet legal requirements of cohabitation, fraud, or incapacity), a court may issue an annulment rather than a divorce. Annulment documents can serve as proof that the relationship no longer exists in the eyes of the law.
- Death Certificate: If the common law marriage ended because one partner passed away, a death certificate will serve as proof that the common law marriage is no longer in effect. This is necessary to show that the surviving partner is free to enter a new marriage or apply for immigration benefits based on a new relationship.
- Statement of Jurisdiction: If the common law marriage took place in a jurisdiction where no legal action is required to end the union, such as Jamaica and Guyana, USCIS may accept an affidavit or statement from an attorney that explains the laws of that jurisdiction. This document should outline:
- That the common law marriage was valid.
- The process (or lack of formal legal process) for ending such a relationship in that jurisdiction.
- A statement confirming that the person is no longer in a common law marriage.
- Legal Opinion Letters: In rare cases, where the laws regarding the dissolution of a common law marriage are unclear or vary significantly from jurisdiction to jurisdiction, USCIS may accept a legal opinion letter from an attorney familiar with the law of the jurisdiction where the common law marriage was established. The letter would explain the requirements for dissolution and confirm that the person is no longer in a valid common law marriage.
- Affidavits and Sworn Statements: In some cases, individuals might need to submit affidavits or sworn statements attesting to the fact that the common law marriage has ended. This could come from both the former partners and third parties (friends, family, or attorneys) who are familiar with the relationship.
Such affidavits must include specific details about the relationship, the date and manner of its termination, and may be used if a formal court process for divorce was not necessary in the jurisdiction where the common law marriage existed.
- Certificate of Non-Impediment to Marriage: In some countries or jurisdictions, a certificate of non-impediment may be issued. This certificate states that the person is legally free to marry because no existing marriage (including a common law marriage) is currently in effect. This document can be used to show that any prior common law marriage has been terminated, if relevant to that jurisdiction’s legal system.
- Proof of Separation for a Set Period (if applicable): In some jurisdictions where common law marriages exist, the union might automatically dissolve after a certain period of separation. Under Jamaican law a common law marriage is terminated when the cohabitation ends.
In such cases, USCIS might accept proof that the couple has been living apart for a designated time as per the local laws. Documents proving the partners’ separate residences, such as utility bills or lease agreements, could be submitted along with a legal statement confirming the end of the common law marriage.
- Declaration of Intent to Dissolve (if required by the jurisdiction): Some jurisdictions may require a formal declaration of intent to dissolve the common law marriage. If this is part of the local legal process, a copy of this declaration or other relevant legal documentation can serve as proof of the end of the common law union.
Key Points to Note – If seeking to sponsor your common-law spouse:
- Validity of the Common Law Marriage – The couple must prove that they have a valid common law marriage according to the laws of the state where they reside or the overseas country where the common law marriage was established.
- Proof of the Common Law Marriage – The couple must provide evidence of the common law marriage, such as joint bank accounts, joint ownership of property, and other documentation that demonstrates a long-term committed relationship, as well as documentation showing that they are considered married under common law in their state.
- Recognition by USCIS – If USCIS accepts the common law marriage as valid, the sponsoring spouse can petition for their common law partner to receive LPR status, just like a marriage formalized with a ceremony or marriage license. If the couple resides in a state that does not recognize common-law marriages, they may need to legally marry before proceeding with the immigration process.
- Divorce and Remarriage Issues – USCIS requires proof that any previous common law marriage has been legally dissolved before an individual can remarry and apply for immigration benefits based on a new relationship. The type of proof needed depends on the laws of the jurisdiction where the common law marriage was established and ended. Whatever proof is presented must provide evidence of the legal dissolution of any common law marriage. Without this, USCIS may view a new marriage as invalid, which could hinder the immigration process. Failure to dissolve the common law marriage could lead to bigamy issues.