Delaware
Common Law Marriage in Delaware: Is It Recognized? (2026)
Independently fact-checked against primary sources (last audited September 7, 2026). · Reviewed by the RecordingLaw editorial team. · Law checked current as of August 18, 2026. · 4 primary sources cited on this page. How we verify our legal content
Delaware has never recognized the formation of a common law marriage within its borders. Under 13 Del. C. section 106, every marriage in Delaware requires a license and a solemnization ceremony. Delaware does, however, give full legal effect to a common law marriage that was validly formed in another state, pursuant to 13 Del. C. section 126.
Information last verified on June 2, 2026.
Does Delaware recognize common law marriage?
Delaware does not allow couples to form a common law marriage within the state. 13 Del. C. section 106 requires both a valid marriage license and a solemnization by an authorized officiant before a marriage is legally formed in Delaware. Because Delaware has never enacted a statute permitting informal marriage formation through cohabitation and mutual agreement alone, there is no grandfather cutoff date comparable to the ones that exist in states that once recognized common law marriage and later abolished it.
The consequence is straightforward: a couple that lives together in Delaware for any period, holds themselves out publicly as married, uses the same last name, or otherwise presents as a married couple has not formed a legally recognized marriage under Delaware law unless they obtained a license and went through a solemnization ceremony. This rule applies regardless of how long the couple has cohabited, how intertwined their finances are, or what they tell others about the nature of their relationship.
Delaware courts applying state law have consistently required compliance with the licensing and solemnization requirements as a condition of a valid marriage. The formal process is not a technicality that courts overlook when the intent of the parties is clear; it is the legal foundation of marriage recognition in Delaware.
Why Delaware has never recognized common law marriage formation
Delaware is among the majority of American states that never adopted the common law marriage doctrine. Rather than abolishing a prior rule by setting a prospective cutoff date, Delaware simply never extended legal recognition to informally constituted marriages. The Title 13 marriage scheme has consistently required the licensing and ceremony process as the exclusive pathway.
13 Del. C. section 106 states that marriages must be solemnized in the presence of witnesses, sets out who may solemnize a marriage, and requires a marriage license to be issued before solemnization can occur. These provisions operate together: without a license, a solemnization cannot lawfully occur, and without solemnization, no marriage is formed.
Because Delaware has never recognized common law marriage formation, there is no equivalent to the grandfather dates that appear in states like Alabama (January 1, 2017), Pennsylvania (January 1, 2005), or Ohio (October 10, 1991). A couple cannot point to a period in Delaware history when informal marriage was permitted. Any claim to a Delaware-formed common law marriage has no legal foundation, regardless of when the relationship began.
Does Delaware recognize a common law marriage from another state?
Yes. Delaware gives effect to a common law marriage that was validly formed in another state. 13 Del. C. section 126 is a savings clause providing that nothing in Delaware's marriage chapter renders an otherwise lawful common law marriage invalid for failure to obtain a Delaware license. In practice, this preserves the validity of a common law marriage lawfully formed under another state's law, reinforced by the Full Faith and Credit Clause of the United States Constitution, which requires each state to give effect to the public acts, records, and judicial proceedings of other states, and by the common law comity principle under which courts recognize legal relationships validly created in other jurisdictions.
As a practical matter, a couple who formed a valid common law marriage in a state that permits it, such as Colorado, Texas, Iowa, Kansas, Montana, Rhode Island, or the District of Columbia, and who later moves to Delaware, retains full marital status in Delaware. Delaware courts and agencies treat such a couple as legally married for all purposes: divorce and property division, spousal support, inheritance under the intestacy statute, spousal privilege in legal proceedings, health insurance and employee benefits designations, and every other legal incident of marriage.
To establish Delaware recognition of an out-of-state common law marriage, the party asserting the marriage must show that all the requirements of the originating state were satisfied at the time the marriage was formed. For example, a couple asserting a valid Texas informal marriage under Texas Family Code section 2.401 must demonstrate that they agreed to be married, cohabited in Texas, and represented to others in Texas that they were married. The elements of the asserted marriage are governed by the law of the state where it was formed, not by Delaware law.
How to prove a common law marriage formed in another state
Because a common law marriage leaves no license or official certificate, the burden of proof falls on the party claiming the marriage. The standard of proof and specific elements vary by state, but courts evaluating a claimed common law marriage consistently examine the same categories of evidence.
Evidence that courts commonly consider includes:
- Joint federal or state tax returns filed as "married filing jointly" or "married filing separately"
- Joint bank accounts, joint deeds, joint mortgage or lease agreements, or jointly titled personal property
- Life insurance policies or retirement account beneficiary designations listing the other person as a spouse
- Loan or credit applications, government benefits forms, or employment records identifying the relationship as a marriage
- Sworn affidavits from both parties acknowledging that they entered into a marital relationship
- Testimony from family members, friends, neighbors, coworkers, or clergy who regarded the couple as married
- Written correspondence, cards, or social media records in which the parties referred to each other as husband, wife, or spouse
- Use of a shared last name or evidence that one partner took the other's last name
No single piece of evidence is by itself determinative. Courts look at the totality of the relationship to determine whether the parties genuinely agreed to be married and held themselves out as married, as required by the law of the state where the marriage was allegedly formed.
The 7-year myth
A widespread misconception holds that living together for 7 years automatically creates a common law marriage. This is false in every jurisdiction in the United States. No state, including the states that still permit common law marriage formation, sets a minimum number of years of cohabitation as a requirement or automatic trigger for marriage.
The states that allow common law marriage formation focus on the intent and conduct of the parties: a present mutual agreement to be married, cohabitation in the permitting state, and public representation of the marriage to others. Duration of cohabitation may be considered as one piece of circumstantial evidence of intent, but there is no threshold number of years that creates a marriage automatically, regardless of whether the parties actually agreed to be married.
In Delaware, this point is especially clear because the state does not recognize common law marriage formation at all. No period of cohabitation in Delaware, whether 7 years or 40 years, creates any marital rights without a license and ceremony.
How a common law marriage ends
A valid common law marriage, wherever it was formed, can only be terminated by a formal legal divorce or by the death of a spouse. There is no such thing as a "common law divorce" or any informal mechanism for dissolving a marriage. Simply separating, dividing possessions, moving to different residences, or announcing that the relationship is over does not end a legal marriage.
This rule has significant practical consequences for Delaware residents. A person who entered a valid common law marriage in Colorado, then moved to Delaware, and separated without obtaining a divorce is still legally married under Delaware law. If that person later attempts to marry a new partner in Delaware, the second marriage would be void or voidable because the prior valid marriage continues to subsist. If you separated from a common law spouse without a divorce, get a free case evaluation from a Delaware family lawyer on filing that divorce before you remarry (attorney advertising).
Divorce proceedings to dissolve a common law marriage that was validly formed in another state proceed in Delaware under the same rules that govern any other Delaware divorce. The Delaware Family Court applies the same statutory framework, including the equitable distribution provisions of 13 Del. C. section 1513 and the alimony provisions of 13 Del. C. section 1512, to the dissolution of a common law marriage as it applies to a formally solemnized marriage.
For context on what that process may involve financially, see Delaware alimony laws and Delaware child support laws.
For a state-by-state comparison of which states recognize common law marriage, see Common law marriage by state.
Disclaimer: This page provides general legal information about common law marriage recognition in Delaware and is not legal advice. Marriage and family law determinations are fact-specific and depend on individual circumstances, including the law of the state where any claimed common law marriage was formed. This information was verified as of June 2, 2026. Consult a licensed Delaware family law attorney for advice about your specific situation.
Last updated: June 2, 2026.
More Delaware Laws
Frequently Asked Questions
Does Delaware have common law marriage?
No. Delaware has never recognized common law marriage formed within the state. Under 13 Del. C. section 106, a valid marriage license and a solemnization ceremony are both required. No amount of cohabitation in Delaware, regardless of duration or intent, creates a legal marriage without completing those steps.
Does Delaware recognize a common law marriage from another state?
Yes. Under 13 Del. C. section 126, an otherwise lawful common law marriage is not invalidated in Delaware for lack of a Delaware license. Delaware gives effect to a common law marriage validly formed in a state that permits such marriages, such as Colorado, Texas, Iowa, or the District of Columbia. The couple retains married status in Delaware for all legal purposes.
Is 7 years of living together considered common law marriage in Delaware?
No. This is a myth. No state requires or recognizes a specific number of cohabitation years as creating a marriage, and Delaware does not allow common law marriage formation at all. Cohabiting in Delaware for any period of time, including 7 years or more, without a license and ceremony does not create any marital rights.
What is the Delaware law on common law marriage?
13 Del. C. section 106 requires a marriage license and solemnization for every marriage formed in Delaware. 13 Del. C. section 126 is a savings clause providing that an otherwise lawful common law marriage is not invalidated in Delaware for lack of a Delaware license, which means validly formed out-of-state common law marriages are recognized. Delaware has never enacted a statute permitting informal marriage formation.
How do I end a common law marriage if I live in Delaware?
A valid common law marriage formed in another state can only be dissolved by a formal divorce, not by separation or informal agreement. If you have a valid out-of-state common law marriage and you live in Delaware, you must file for divorce in a court with proper jurisdiction. Delaware Family Court can dissolve such a marriage using the same procedures and laws that apply to any other Delaware divorce. Consult a licensed Delaware family law attorney for guidance.
Can I inherit from a partner I lived with in Delaware without being legally married?
Not automatically. Delaware intestacy law under 12 Del. C. section 502 governs who inherits when a person dies without a will. Unmarried partners do not inherit under intestacy. If you and your partner were never formally married and did not form a valid common law marriage in a state that permits it, you would need to be named in a will or other estate planning document to inherit. Cohabitation alone does not create inheritance rights.
Which states allow common law marriage that Delaware would recognize?
As of 2026, states that still allow formation of new common law marriages include Colorado, Iowa, Kansas, Montana, Oklahoma (with some contested recognition), Rhode Island, Texas (called informal marriage under Texas Family Code section 2.401), and Utah (which requires a court order). The District of Columbia also recognizes common law marriage. A marriage validly formed in any of those jurisdictions will be recognized in Delaware under 13 Del. C. section 126.
Updates
Independently fact-checked against the cited primary sources
Repaired three Delaware Code citation links so each points to its own section (13 Del. C. 101, 106, 126).
Independently fact-checked against the cited primary sources; governing law re-checked for recent changes
Corrected the description of 13 Del. C. section 126 from an invented 'valid where contracted' recognition rule to what the statute actually says: a savings clause preventing an otherwise lawful common-law marriage from being invalidated in Delaware for lack of a Delaware license.
Governing law re-checked for recent changes
Corrected the marriage-license-and-solemnization citation from 13 Del. C. section 101 (which governs void/voidable marriages) to section 106 (which actually requires a license and solemnization) everywhere the page made that claim -- the intro, key takeaways, both body sections, and two FAQ answers -- and relabeled the section 101 citation to match what it actually covers.
Governing law re-checked for recent changes
Reviewed and approved by an editor
The Law Behind This Article
This article rests on the statutory provisions below, held in our own legal record and retrieved from the official source. Tap a section to read the operative text.
Delaware Code, Title 13 (Domestic Relations), Chapter 001 (MARRIAGE)
§ 126Validity of common-law or other lawful marriages.In force
Nothing in this chapter shall be construed to render any common-law or other marriage, otherwise lawful, invalid by reason of the failure to take out a license as provided by this chapter.
Official text (excerpt) · last checked 2026-09-07 · Read the full text in our law library · Verify at delcode.delaware.gov
§ 106Individuals authorized to solemnize marriages; requirements to solemnize marriage; penalty.In forcecited in 2 of our articles
(a) (1) For purposes of this subsection, “chief executive officer” means the mayor of an incorporated municipality. If an incorporated municipality does not have a mayor, then “chief executive officer” means the president of the legislative body of the incorporated municipality. If an incorporated municipality does not have a mayor or a president of the legislative body, then “chief executive officer” means the presiding officer of the legislative body of the incorporated municipality. (2) The following individuals over 18 years of age may solemnize a marriage between individuals who may lawfully enter into the matrimonial relation: a. A clergyperson or minister of any religion who resides in the State, provided such clergyperson or minister is registered with the Clerk of the Peace in the county where such clergyperson or minister resides. b. A clergyperson or minister of any religion who does not reside in the State, provided such clergyperson or minister is registered with the Clerk of the Peace in the county where the marriage ceremony is to be performed. c.
Official text (excerpt) · last checked 2026-07-29 · Read the full text in our law library · Verify at delcode.delaware.gov
Cited in 2 court opinions in our collectionLatest citing opinion in our collection: 2026
Opinions citing this section in our collection:
- Russell L. Lafon, Sr., as Personal Representative of the Estate of Russell L. LaFon, Jr. v. Jacqueline Marie Felmlee (Supreme Court of Delaware 2026)“…itnesses who are at least 18 years of age as required under 13 Del. C. § 106(a)(4). The Petitioner sought to preven…”
- Angela Okafor Carlisle v. Rone Everett (Court of Chancery of Delaware 2026)“…on the marital certificate did not attend the ceremony as 13 Del. C. § 106(a)(4) required.37 The father also argu…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Also relied on in: Delaware Marriage License Requirements 2026: 24-Hour Wait, Fees
§ 101Void and voidable marriages.In forcecited in 3 of our articles
(a) A marriage is prohibited and void between a person and such person’s ancestor, descendant, brother, sister, half-brother, half-sister, uncle, aunt, niece, nephew or first cousin. (b) A marriage is prohibited, and is void from the time its nullity is declared by a court of competent jurisdiction at the instance of the innocent party, if either party thereto is: (1)-(5) [Repealed.] (6) Divorced, unless a certified copy of the divorce decree (last decree if such person has been divorced more than once) or a certificate of such divorce from the clerk of the court granting the divorce is inspected by the clerk of the peace to whom such person makes application for a marriage license, and unless such person may in other respects lawfully marry; and, if such decree or certificate cannot be obtained, the Resident Judge of the county where such license is desired or the person designated by the Resident Judge to grant such certificates as may be accepted under this paragraph (b)(6) may grant a certificate of the facts as stated by the applicant and the certificate may, for the purposes of this chapter, be accepted in lieu of a certified copy of a divorce decree; (7)…
Official text (excerpt) · last checked 2026-07-29 · Read the full text in our law library · Verify at delcode.delaware.gov
Cited in 7 court opinions in our collectionLatest citing opinion in our collection: 2019
Opinions citing this section in our collection:
- State v. SHARON H. (Superior Court of Delaware 1981, 429 A.2d 1321)“…have no bearing in a prosecution brought pursuant to 13 Del.C. §§ 101(a)(1) 4 and 102. The appel…”
- Saunders v. Saunders (Superior Court of Delaware 1956, 49 Del. 515)“…arriage and divorce. The Statute involved appears at 13 Del. C. § 101. 1 By § 101(a), it is prov…”
- Keller-Minus v. Pakston (Supreme Court of Delaware 2019)“…t Peter and Lydia’s marriage should be declared void under 13 Del. C. § 101(b). (4) After briefing and a…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Delaware Code, Title 12 (Decedents’ Estates and Fiduciary Relations), Chapter 005 (INTESTATE SUCCESSION)
§ 502Share of spouse.In forcecited in 2 of our articles
The intestate share of the surviving spouse is: (1) If there is no surviving issue or parents of the decedent, the entire intestate estate; (2) If there is no surviving issue but the decedent is survived by a parent or parents, the first $50,000 of the intestate personal estate, plus one half of the balance of the intestate personal estate, plus a life estate in the intestate real estate; (3) If there are surviving issue all of whom are issue of the surviving spouse also, the first $50,000 of the intestate personal estate, plus one half of the balance of the intestate personal estate, plus a life estate in the intestate real estate; (4) If there are surviving issue, one or more of whom are not issue of the surviving spouse, one half of the intestate personal estate, plus a life estate in the intestate real estate.
Official text (excerpt) · last checked 2026-09-06 · Read the full text in our law library · Verify at delcode.delaware.gov
Cited in 12 court opinions in our collectionLatest citing opinion in our collection: 2026
Opinions citing this section in our collection:
- Mitchell v. DiAngelo (Court of Chancery of Delaware 2001, 787 A.2d 715)“…ing that she is Carl’s surviving spouse and sole heir under 12 Del. C. § 502. 1 *717 The relevant facts are easi…”
- Madden v. Phelps (Court of Chancery of Delaware 1995, 671 A.2d 870)“…Eva and the two children are entitled to the entire estate. 12 Del.C. §§ 502, 503. Even if Albert and Eva were divor…”
- Godwin v. Marvel (Orphan's Court of Delaware 1953, 55 Del. 1)“…umber of primary shares is five. The pertinent statute is 12 Del. C. § 502, which gives the rules of descent of re…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Also relied on in: Delaware Probate and Intestate Succession: What Happens Without a Will (2026)
Delaware Code, Title 13 (Domestic Relations), Chapter 015 (DIVORCE AND ANNULMENT)
§ 1512Alimony in divorce and annulment actions; award; limitations.In forcecited in 2 of our articles
(a) The Court may award interim alimony to a dependent party during the pendency of an action for divorce or annulment. (b) A party may be awarded alimony only if such party is a dependent party after consideration of all relevant factors contained in subsection (c) of this section in that the party: (1) Is dependent upon the other party for support and the other party is not contractually or otherwise obligated to provide that support after the entry of a decree of divorce or annulment; (2) Lacks sufficient property, including any award of marital property made by the Court, to provide for such party’s own reasonable needs; and (3) Is unable to support the party’s own self through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the party not be required to seek employment.
Official text (excerpt) · last checked 2026-09-07 · Read the full text in our law library · Verify at delcode.delaware.gov
Cited in 75 court opinions in our collectionLatest citing opinion in our collection: 2026
Opinions citing this section in our collection:
- In Re Kennedy (Supreme Court of Delaware 1984, 472 A.2d 1317)“…failure to file an affidavit of dependency, as required by 13 Del.C. § 1512(a), was raised by the husband’s counsel…”
- Bruce E.M. v. Dorothea A.M. (Supreme Court of Delaware 1983, 455 A.2d 866)“…aw. The award of alimony in a divorce action is governed by 13 Del.C. § 1512. When the husband filed his original di…”
- Eberly v. Eberly (Supreme Court of Delaware 1985, 489 A.2d 433)“…ivorce action under 13 Del.C. § 1509(b)(1) and 13 Del.C. § 1512(a)(1). 13 Del. C. § 1509(c…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Also relied on in: Delaware Alimony Laws: How Spousal Support Works (2026)
§ 1513Disposition of marital property; imposition of lien; insurance policies.In forcecited in 3 of our articles
(a) In a proceeding for divorce or annulment, the Court shall, upon request of either party, equitably divide, distribute and assign the marital property between the parties without regard to marital misconduct, in such proportions as the Court deems just after considering all relevant factors including: (1) The length of the marriage; (2) Any prior marriage of the party; (3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties; (4) Whether the property award is in lieu of or in addition to alimony; (5) The opportunity of each for future acquisitions of capital assets and income; (6) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker, husband, or wife; (7) The value of the property set apart to each party; (8) The economic circumstances of each party at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the party with whom any children of…
Official text (excerpt) · last checked 2026-07-29 · Read the full text in our law library · Verify at delcode.delaware.gov
Cited in 103 court opinions in our collectionLatest citing opinion in our collection: 2026
Opinions citing this section in our collection:
- Frank G.W. v. Carol M.W. (Supreme Court of Delaware 1983, 457 A.2d 715)“…noted that “the growth in value would also be non-marital. 13 Del.C. § 1513(b)(3).” Thus, the former thought any ap…”
- Forrester v. Forrester (Supreme Court of Delaware 2008, 953 A.2d 175)“…lso one of first impression before this Court. Under 13 Del. C. § 1513, “all property acquired by either party…”
- Jerry L. C. v. Lucille H. C. (Supreme Court of Delaware 1982, 448 A.2d 223)“…y Court Judge, after balancing all of the factors listed in 13 Del.C. § 1513 and § 1512, determined that the wife wa…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Also relied on in: Delaware Divorce Laws (2026): Grounds, Residency, and Process, Delaware Annulment Laws: Grounds, Deadlines and How to File (2026)
Texas Family Code
§ 2.401PROOF OF INFORMAL MARRIAGEIn forcecited in 24 of our articles
(a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that: (1) a declaration of their marriage has been signed as provided by this subchapter; or (2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married. (b) If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married. (c) A person under 18 years of age may not: (1) be a party to an informal marriage; or (2) execute a declaration of informal marriage under Section 2.402. (d) A person may not be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to a person who is not the other party to the informal marriage or declaration of an informal marriage, as applicable.
Official text (excerpt) · last checked 2026-09-07 · Read the full text in our law library · Verify at statutes.capitol.texas.gov
Cited in 98 court opinions in our collectionLatest citing opinion in our collection: 2026
In the courts (editorial summary, independently checked):Joplin v. Borusheski (2008) applied section 2.401(b): a suit filed over two years after separation raises a rebuttable presumption the parties never agreed to marry, which that proponent did not rebut. In Lan Ngoc Nguyen v. Dinh Duc Nguyen (2011) the 2.401(d) prior-marriage impediment was not proved, and that finding was reversed.
Opinions citing this section in our collection:
- Lan Ngoc Nguyen v. Dinh Duc Nguyen (Texas Court of Appeals, 1st District (Houston) 2011, 355 S.W.3d 82)✓A husband fought his wife's divorce petition by claiming an earlier Vietnamese marriage was an impediment under Section 2.401(d); the court found the proof of that prior marriage factually insufficient and remanded to decide the statute's three informal-marriage elements.
- Assoun v. Gustafson (Court of Appeals of Texas 2016, 493 S.W.3d 156)✓An ex-husband sued to have his former wife declared informally married to her boyfriend, ending his alimony; applying Section 2.401(a), the court affirmed summary judgment for the couple because their sworn denials of any agreement to marry defeated his circumstantial proof.
- Joplin v. Borusheski (Texas Court of Appeals, 5th District (Dallas) 2008, 244 S.W.3d 607)✓A man filed for divorce in 2005 claiming a common-law marriage, more than two years after the couple stopped living together; the court applied Section 2.401(b)'s rebuttable presumption of no agreement to marry and held his testimony failed to rebut it.
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Also relied on in: Common Law Marriage by State: Where It's Recognized (2026), Common Law Marriage in Arizona: Is It Recognized? (2026), Common Law Marriage in Florida: Is It Recognized? (2026)
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Sources and References
- 13 Del. C. section 101, Void and voidable marriages(delcode.delaware.gov).gov
- 13 Del. C. section 106, License required(delcode.delaware.gov).gov
- 13 Del. C. section 126, Validity of Common-Law or Other Lawful Marriages(delcode.delaware.gov).gov
- 12 Del. C. section 502, Share of spouse(delcode.delaware.gov)
- U.S. Constitution Article IV section 1 (Full Faith and Credit Clause)(law.cornell.edu)
- Texas Family Code section 2.401, Informal Marriage(statutes.capitol.texas.gov)
- Colorado Revised Statutes section 14-2-109.5, Common law marriages. Colorado General Assembly(leg.colorado.gov).gov
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