Will Delaware Recognize Your Common Law Marriage for Divorce?
Many people are surprised to learn that Delaware does not allow couples to create a common law marriage within the state. However, that does not necessarily mean Delaware will refuse to recognize your marriage.
If you entered into a valid common law marriage in another state, Delaware courts may recognize that marriage and grant you a divorce here.
The Key Question Isn't Where You're Divorcing—It's Where Your Marriage Began
When deciding whether a common law marriage exists, Delaware follows a straightforward legal principle: if the marriage was valid under the laws of the state where it was formed, Delaware will generally recognize it.
In other words, Delaware's prohibition on creating common law marriages does not automatically prevent a Delaware court from dissolving one. Instead, the court looks to the law of the state where the relationship allegedly became a marriage.
How Do You Prove a Common Law Marriage?
Unlike a traditional marriage, there is no marriage certificate to present to the court. That means the person claiming the marriage exists must prove it through other evidence.
In most states that recognize common law marriage, the burden of proof is clear and convincing evidence—a higher standard than simply showing something is "more likely than not."
Generally, three elements must exist at the same time:
A present agreement to be married. Both parties must have intended to be husband and wife immediately—not merely planned to marry in the future.
Living together as spouses. Cohabitation is an important factor but, by itself, it is not enough.
Holding yourselves out to others as a married couple. This means consistently representing yourselves to family, friends, employers, financial institutions, or government agencies as husband and wife.
All three elements are necessary. Living together alone, sharing finances, or planning a future wedding does not create a common law marriage.
The Most Difficult Element to Prove
In many cases, the biggest challenge is proving there was a mutual present agreement to be married.
Courts want evidence that, at a specific point in time, both people believed they were already married—not simply engaged or intending to marry later.
If one party later denies the marriage existed, judges often look closely at the documentary evidence, including:
Tax returns
Insurance policies
Bank accounts
Employment records
Real estate documents
Other official records describing the parties as spouses
The more consistently you represented yourselves as married over the years, the stronger your case may be.
It's also important to remember that joint ownership of property alone does not establish a marriage. However, if a deed or title identifies the parties as spouses, it may support your claim when considered with the other evidence.
Can Delaware Courts Hear Your Divorce?
Even if Delaware recognizes your out-of-state common law marriage, the court must first have jurisdiction to grant a divorce.
Residency Requirement
Either you or your spouse must have been an actual resident of Delaware for at least six continuous months immediately before filing for divorce.
"Actual residence" means more than temporarily living in Delaware. The court looks at whether Delaware has become your genuine, permanent home by considering the totality of your circumstances—sometimes referred to as the "deep roots" test.
Service on Your Spouse
The court must also obtain jurisdiction over your spouse.
Depending on the circumstances, Delaware law permits service by personal delivery or, when appropriate, by mail or publication. However, these alternative methods have important limitations, particularly when a spouse resides in a country that is a party to the Hague Service Convention and has objected to service by mail. In those cases, international service requirements must be carefully followed.
Every Common Law Marriage Case Is Different
Whether Delaware will recognize a common law marriage depends on the laws of the state where the marriage was formed and the evidence available to prove it. These cases are often fact-intensive and require careful review of the parties' history and documentation.
If you believe you may have entered into a common law marriage outside Delaware and are considering divorce, speaking with an experienced Delaware family law attorney can help you understand your rights, evaluate your evidence, and determine the best path forward.
