Illinois
Common Law Marriage in Illinois: Is It Recognized? (2026)
Independently fact-checked against primary sources (last audited August 18, 2026). · Reviewed by the RecordingLaw editorial team. · Law checked current as of August 18, 2026. · 3 primary sources cited on this page. How we verify our legal content
Illinois does not recognize common law marriage formed within the state. Under 750 ILCS 5/214, any marriage contracted in Illinois without a license and ceremony on or after July 1, 1905, is void. Illinois does, however, recognize a valid common law marriage formed in another state under the doctrine of comity.
Information last verified on June 2, 2026.
Jurisdiction scope: This article addresses Illinois state law on common law marriage under 750 ILCS 5/214 and Illinois case law on out-of-state recognition. It does not constitute legal advice. For a state-by-state comparison, see Common Law Marriage by State.
Does Illinois Recognize Common Law Marriage?
Illinois does not allow couples to form a common law marriage within the state. The Illinois Marriage and Dissolution of Marriage Act, at 750 ILCS 5/214, provides that all marriages contracted in Illinois are void if they are contracted without a license issued under Article II of the Act. The Illinois legislature abolished common law marriage formation over a century ago, setting July 1, 1905, as the cutoff date after which an informally formed marriage has no legal validity in Illinois.
Because the abolition date is 1905, the pre-cutoff grandfather window is entirely historical. No living person who cohabited exclusively in Illinois can hold a valid Illinois common law marriage, given that any such marriage would have needed to be fully formed before July 1, 1905. Unlike states with more recent abolition dates such as Alabama (2017 cutoff) or South Carolina (2019 cutoff), the practical significance of Illinois's grandfather clause is limited to legal history, probate cases involving very old estates, or questions about ancient property records.
Illinois courts have consistently applied this rule. Illinois courts have held that cohabitation, however long, and mutual presentation as a married couple do not create a marriage in Illinois without compliance with the statutory licensing and solemnization requirements set out in 750 ILCS 5/214.
Illinois's Long History of Rejecting Common Law Marriage Formation
Illinois stands out even among states that have abolished common law marriage, because it acted so early. The 1905 statutory abolition predates the abolitions in most other states by decades. States like Ohio waited until 1991, Pennsylvania until 2005, and South Carolina until 2019 to end prospective common law marriage recognition, while Illinois closed the door before World War I.
The Illinois Marriage and Dissolution of Marriage Act codified and reinforced this position when the legislature enacted a comprehensive marriage statute. Section 214 of that Act, now compiled at 750 ILCS 5/214, carries forward the prohibition that has been in place since 1905. Under that section, any purported marriage contracted in Illinois without the required license is void, not merely voidable. A void marriage has no legal effect from its inception and does not require any court action to be treated as non-existent, though parties may seek a declaratory judgment or formal annulment for clarity.
The Illinois legislature's policy choice reflects the view that marriage, as a legal status with significant consequences for property, inheritance, taxation, spousal privilege, and public benefits, should be created through a clear and documented public process. A license and solemnization provide that clarity. Informal arrangements, however sincere, do not.
For couples who lived together in Illinois for many years without a license, this means no marital rights arise from that cohabitation alone. Illinois courts have declined to recognize palimony claims based on an informal marriage theory. The Illinois Supreme Court held in Hewitt v. Hewitt, 77 Ill. 2d 49 (1979), that property claims between unmarried cohabitants are unenforceable, including claims resting on an express contract, because enforcing them would contravene the public policy against common law marriage reflected in the Illinois Marriage and Dissolution of Marriage Act. The court reaffirmed that rule in Blumenthal v. Brewer, 2016 IL 118781, rejecting arguments that Hewitt was outdated.
Does Illinois Recognize a Common Law Marriage From Another State?
Yes. Illinois recognizes a valid common law marriage formed in another state under the doctrine of comity, which is the principle that courts in one state will give effect to legal relationships validly created in another state. The Illinois Appellate Court applied this principle in Hewitt v. Hewitt and subsequent cases, and it is consistent with the general conflicts-of-law rule that a marriage valid where contracted is recognized elsewhere.
For example, a couple who validly formed a common law marriage in Colorado under C.R.S. section 14-2-109.5 (which allows common law marriage for parties 18 and older), or who entered a valid informal marriage in Texas under Tex. Fam. Code section 2.401, and who later moved to Illinois, retains that marital status in Illinois. Illinois courts treat the couple as legally married for purposes of divorce, property division, spousal maintenance under 750 ILCS 5/504, inheritance rights under 755 ILCS 5/2-1, and all other legal incidents of marriage.
The Full Faith and Credit Clause of the United States Constitution, Article IV, section 1, also supports this recognition when the out-of-state common law marriage was established through a judicial proceeding or administrative order (as Utah's system requires under Utah Code section 81-2-408). For informal marriages established through conduct alone (as in Colorado or Iowa), the comity doctrine provides the applicable framework.
To establish Illinois recognition of an out-of-state common law marriage, the asserting party must demonstrate that the marriage satisfied all requirements of the state where it was formed. A party claiming a valid Colorado common law marriage must show the elements recognized in In re Marriage of Hogsett & Neale, 2021 CO 1, 478 P.3d 713 (Colo. 2021), including the parties' mutual consent to be married and their conduct holding themselves out as married.
How to Prove a Common Law Marriage Formed in Another State
Because a common law marriage leaves no official license or certificate, the party asserting such a marriage bears the burden of proof. Illinois courts evaluating whether to recognize an out-of-state common law marriage apply the law of the state where the marriage was allegedly formed to determine what elements must be proved and what standard of proof applies.
In practice, the same categories of evidence are relevant regardless of which state's law governs:
- Joint federal and state income tax returns filed with both parties identified as married or as husband and wife
- Joint bank accounts, joint real property deeds, or joint mortgage or lease agreements
- Life insurance policies or retirement account beneficiary designations listing the partner as a spouse
- Loan applications or government-benefit enrollment forms identifying the relationship as a marriage
- Affidavits from family members, friends, coworkers, neighbors, or clergy who knew the couple as a married pair
- Correspondence, greeting 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 documents in which both parties are identified as husband and wife
- Birth certificates of children listing both parties as parents with the same last name
No single document is automatically conclusive. Courts assess the totality of the circumstances against the requirements of the state where the marriage was allegedly formed.
The 7-Year Myth
A persistent misconception holds that cohabiting for seven years automatically creates a common law marriage. This is false in every state, including Illinois. No state, including the states that still permit common law marriage formation, sets a minimum number of years of cohabitation as a legal threshold or automatic trigger.
The states that still allow common law marriage focus on the intent and conduct of the parties: a mutual present agreement to be married, cohabitation, and public representation of the marriage to others. Duration of cohabitation may be relevant circumstantial evidence of intent, but no fixed number of years is a requirement.
In Illinois, this point is dispositive. Since July 1, 1905, no period of cohabitation in Illinois, whether seven years or seventy years, creates a legal marriage without a license and ceremony. This has been the law for over a century.
How a Common Law Marriage Ends
A valid common law marriage formed in another state and recognized in Illinois can only be terminated by a formal divorce or the death of a spouse. There is no such thing as a "common law divorce." Separating households, signing a separation agreement, dividing property informally, or ceasing to cohabit does not dissolve a marriage.
This rule carries significant practical consequences. An Illinois resident who holds a valid out-of-state common law marriage and separates from their partner without filing for divorce remains legally married under Illinois law. Entering a new marriage in Illinois without obtaining a divorce would render that second marriage void or voidable.
Divorce proceedings in Illinois to dissolve a valid out-of-state common law marriage follow the same procedures as any Illinois dissolution action under the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101 et seq. The court applies Illinois property division law, the spousal maintenance factors under 750 ILCS 5/504, and the same residency and jurisdictional requirements that apply to any Illinois dissolution.
For more on the financial aspects of dissolving a marriage in Illinois, see Illinois alimony laws and Illinois 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 Illinois 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 Illinois family law attorney for advice about your specific situation.
Last updated: June 2, 2026.
More Illinois Laws
Frequently Asked Questions
Does Illinois recognize common law marriage?
Illinois does not allow common law marriage to be formed within the state. Under 750 ILCS 5/214, any marriage contracted in Illinois without a license is void. The prohibition has been in place since July 1, 1905. Illinois does recognize a valid common law marriage formed in another state under the doctrine of comity.
When did Illinois abolish common law marriage?
Illinois abolished common law marriage formation effective July 1, 1905. The current statute, 750 ILCS 5/214, carries forward that prohibition. Any marriage contracted in Illinois without a license on or after that date is void and has no legal effect.
Is 7 years of living together considered common law marriage in Illinois?
No. This is a myth with no basis in Illinois law or in the law of any other state. Illinois has not recognized common law marriage formation since 1905, and no period of cohabitation in Illinois creates a marriage without a license and ceremony. Even in states that still allow common law marriage, duration of cohabitation is not the key test.
Does Illinois recognize a common law marriage from Texas or Colorado?
Yes. Illinois recognizes a valid common law marriage formed in another state under the doctrine of comity. A couple who formed a valid informal marriage in Texas under Tex. Fam. Code section 2.401, or a valid common law marriage in Colorado under C.R.S. section 14-2-109.5, retains that marital status in Illinois and can seek a dissolution in Illinois courts.
What rights do unmarried cohabitants have in Illinois?
Unmarried cohabitants in Illinois do not have spousal rights. Illinois courts held in Hewitt v. Hewitt, 77 Ill. 2d 49 (1979), and reaffirmed in Blumenthal v. Brewer, 2016 IL 118781, that property claims between unmarried cohabitants are unenforceable, even ones based on an express agreement, when they are rooted in a marriage-like relationship. A cohabitant may still have a remedy with an independent legal basis unrelated to the relationship, such as partition of jointly titled property, but that is distinct from marital rights. Consult a licensed Illinois family law attorney for guidance specific to your situation.
Can I get a common law divorce in Illinois?
There is no such thing as a 'common law divorce.' A valid common law marriage, formed in another state and recognized in Illinois, ends only through a formal divorce proceeding under the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq.) or through the death of a spouse. Simply separating or stopping cohabitation does not dissolve the marriage.
How do I prove a common law marriage from another state in Illinois?
Illinois courts apply the law of the state where the marriage was formed to determine what must be proved. Evidence typically includes joint tax returns filed as married, joint bank accounts or property records, insurance policies naming the partner as a spouse, and testimony from people who knew the couple as married. No single item is conclusive; courts assess the totality of the circumstances against the requirements of the originating state.
Updates
Corrected the description of Hewitt v. Hewitt (1979): the Illinois Supreme Court held that property claims between unmarried cohabitants, including those based on an express agreement, are unenforceable in Illinois (not that express contracts may be enforced), a rule reaffirmed in Blumenthal v. Brewer (2016). Removed an unverifiable case citation (In re Estate of Milli) and fixed four dead or wrong citation links (three Illinois statute citations and the Hogsett case citation).
Independently fact-checked against the cited primary sources; governing law re-checked for recent changes
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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.
Texas Family Code
§ 2.401PROOF OF INFORMAL MARRIAGEIn forcecited in 22 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 2026-07-28 · Read the full text in our law library · Verify at statutes.capitol.texas.gov
Cited in 98 court opinionsMost recently applied by a court: 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.
Leading cases:
- 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 Arkansas: Is It Recognized? (2026)
Search our full record of US law — 2.1 million sections, every state + federal →
Sources and References
- 750 ILCS 5/214, Prohibited marriages(ilga.gov).gov
- 750 ILCS 5/504, Maintenance(ilga.gov).gov
- 755 ILCS 5/2-1, Descent and distribution(ilga.gov).gov
- Hewitt v. Hewitt, 77 Ill. 2d 49, 394 N.E.2d 1204 (1979)(law.justia.com)
- In re Marriage of Hogsett & Neale, 478 P.3d 713 (Colo. 2021)(courtlistener.com)
- 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(leg.colorado.gov)
- Cornell Law School Legal Information Institute: Common Law Marriage(law.cornell.edu)
- Blumenthal v. Brewer, 2016 IL 118781(law.justia.com)