Calling it quits: common law marriage vs. cohabitation agreement

By Goodwin Como, P.C.

We’ve posted a lot of articles discussing the ins and outs of marriage. But what about non-traditional unions between couples? In such cases, is there a divorce requirement if the relationship heads south?

In today’s post, we examine two such non-traditional forms of commitments: common law marriages and cohabitations agreements.

Common law marriage

Right off the bat, it’s important to clarify that couples in Pennsylvania are no longer legally permitted to enter into a common law marriage. However, if a couple entered into such a marriage prior to January 1, 2005, the state still recognizes this marriage if:

  • The couple considers themselves to be married,
  • The couple lives together and
  • The couple is considered to be married in the eyes of the community.

For such marriages, no marriage certificate, no officiant, and no witnesses are required. Nonetheless, couples married under common law have the same legal rights as traditionally married couples with respect to issues such as taxes, employer benefits, and inheritance. Therefore, if such a couple decides to divorce, they must go through the full, legal divorce process.

Cohabitation agreement

A cohabitation agreement—also known as a domestic partnership agreement—is a contract between members of a couple who are committed to each other are not married. Similar to a prenuptial agreement, a cohabitation agreement provides a couple with an opportunity to define how certain aspects of their relationship together will work—such as how finances will be managed. It also lays out guidelines for how property, pets, and other assets will be divided in the event that the relationship ends.

While a cohabitation agreement is legally binding, it is not a form of marriage, and as such, it does not provide any of the benefits of marriage. Therefore, going through the divorce process is not necessary if a couple who has signed such an agreement chooses to dissolve the relationship.