Delaware
Common Law Marriage in Delaware: Is It Recognized? (2026)
Delaware has never recognized the formation of a common law marriage within its borders. Under 13 Del. C. section 101, 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 101 establishes that a marriage in Delaware is a civil contract to which the consent of the parties is essential, and the statute requires both a valid marriage license and a solemnization by an authorized officiant before a marriage is legally formed. 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 101 states that all marriages shall be solemnized and that the governing chapter determines who may solemnize a marriage. 13 Del. C. section 106 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 expressly recognizes a common law marriage that was validly formed in another state. 13 Del. C. section 126 provides that a marriage that is valid where contracted shall be valid in Delaware, subject only to limited public policy exceptions that have not been applied to common law marriages validly formed elsewhere in the United States. This statute codifies both 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 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.
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 101, 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, a marriage valid where contracted is valid in Delaware. Delaware gives full legal 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 101 requires a marriage license and solemnization for every marriage formed in Delaware. 13 Del. C. section 126 provides that marriages valid where contracted are valid in Delaware, 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.
Sources and References
- 13 Del. C. section 101, Marriage as civil contract(delcode.delaware.gov)
- 13 Del. C. section 106, License required(delcode.delaware.gov)
- 13 Del. C. section 126, Marriages in other states(delcode.delaware.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