Pennsylvania abolished common law marriage on January 1, 2005, under 23 Pa.C.S. § 1103, but couples who established valid common law marriages before this date retain full marital rights and must pursue formal divorce proceedings to dissolve their unions. Approximately 5-10% of Pennsylvania divorce filings involving pre-2005 relationships include common law marriage claims, with filing fees ranging from $135 to $388 depending on county. The same 90-day waiting period under 23 Pa.C.S. § 3301(c) applies to common law divorces as traditional marriages, and property division follows Pennsylvania's equitable distribution framework under 23 Pa.C.S. § 3502.
| Key Facts | Details |
|---|---|
| Filing Fee | $135-$388 (varies by county) |
| Waiting Period | 90 days (mutual consent) or 1 year (no consent) |
| Residency Requirement | 6 months minimum for one spouse |
| Grounds | No-fault: Irretrievable breakdown |
| Property Division | Equitable distribution (not 50/50) |
| Common Law Cutoff | January 1, 2005 |
| Burden of Proof | Clear and convincing evidence |
What Is Common Law Marriage Under Pennsylvania Law
Pennsylvania recognized common law marriage as a valid form of matrimony until January 1, 2005, requiring no marriage license, ceremony, or officiant. Under the former common law doctrine, couples established legally binding marriages through two essential elements: exchange of verba in praesenti (words in the present tense expressing mutual consent to be married) and public representation as a married couple. Pennsylvania courts applied this doctrine for over 200 years before legislative abolition.
The central requirement for establishing a pre-2005 common law marriage was the exchange of verba in praesenti, which translates to words spoken in the present tense declaring intent to be married to each other. Unlike some states that required specific cohabitation periods, Pennsylvania law focused primarily on the parties' present intent to create a marital relationship. Couples could establish common law marriage status regardless of the length of their cohabitation, provided they exchanged words of present intent and held themselves out publicly as husband and wife.
Under 23 Pa.C.S. § 1103, no common law marriage contracted after January 1, 2005, shall be valid in Pennsylvania. However, the statute explicitly preserves pre-existing common law marriages: "Nothing in this part shall be deemed or taken to render any common-law marriage otherwise lawful and contracted on or before January 1, 2005, invalid." A 2026 amendment clarified that this prohibition applies to all future cohabitations without retroactively invalidating marriages validly established before the cutoff date.
How to Prove a Common Law Marriage Existed Before 2005
Proving a valid common law marriage requires clear and convincing evidence that exceeds the typical preponderance standard used in civil cases. Pennsylvania courts apply heightened scrutiny to common law marriage claims because these relationships lack the documentary evidence that licensed marriages produce automatically. The party claiming common law marriage bears the burden of proof and must demonstrate both the exchange of verba in praesenti and the couple's reputation as married persons.
When both parties are available to testify, the claiming party must produce clear and convincing evidence of the exchange of words in the present tense spoken with the purpose of establishing the marital relationship. Courts will examine whether the alleged exchange was sufficiently clear, unambiguous, and mutual. General expressions of commitment or future promises to marry do not satisfy this requirement.
Pennsylvania law creates a rebuttable presumption of marriage when two elements can be shown: constant cohabitation and a reputation of marriage that is broad and general, not partial or divided. This presumption typically arises only when the parties are unavailable to testify directly about the exchange of verba in praesenti, such as when one party has died. In those cases, circumstantial evidence of cohabitation and reputation may establish the marriage.
Evidence commonly used to prove common law marriage includes: joint tax returns filed as married filing jointly; jointly titled property deeds or lease agreements; joint bank accounts and credit applications listing both as spouses; life insurance policies or pension beneficiary designations naming the partner as spouse; birth certificates identifying both parties as parents; testimony from family, friends, neighbors, and community members regarding the couple's marital reputation; legal documents signed identifying each other as husband/wife; and written correspondence or communications referring to the marital relationship.
Filing for Divorce From a Common Law Marriage in Pennsylvania
Dissolution of a valid common law marriage requires the same formal divorce proceedings as any licensed marriage under Pennsylvania law. Courts treat common law marriages identically to ceremonial marriages for purposes of divorce jurisdiction, property division, alimony, and child custody. There is no separate "common law divorce" process; couples must file a standard complaint in divorce and proceed through the same court system.
The divorce process begins with establishing that a valid common law marriage exists. If the responding spouse contests the existence of the marriage, the court will hold an evidentiary hearing to determine whether the claiming party has met the clear and convincing evidence standard. Only after establishing marital validity will the court proceed to address divorce grounds, property distribution, and support issues.
To file for divorce in Pennsylvania, at least one spouse must have been a bona fide resident of the Commonwealth for a minimum of six months immediately preceding filing, per 23 Pa.C.S. § 3104. You may file in the county where the defendant resides if they live in Pennsylvania, or in your county of residence if your spouse lives out of state. Filing fees range from $135 to $388 depending on county, with Philadelphia County charging $333.73 and Bucks County charging $388 as of January 2026.
Pennsylvania offers fee waivers through the Petition to Proceed In Forma Pauperis for filers who cannot afford court costs. You qualify if your household income falls at or below 125% of federal poverty guidelines: $19,563 annually for a single person, $26,513 for two people, or $40,150 for a family of four in 2026.
Grounds for Divorce and Waiting Periods
Pennsylvania provides both fault and no-fault grounds for divorce, though approximately 95% of divorces proceed on no-fault grounds. Common law marriage divorces follow the same grounds requirements as licensed marriage divorces. The most common pathway is mutual consent divorce under 23 Pa.C.S. § 3301(c), which requires both spouses to agree that the marriage is irretrievably broken.
Mutual consent divorce requires a 90-day waiting period measured from the date the divorce complaint is served on the other spouse. After this cooling-off period, both parties must file sworn affidavits confirming their consent and that the marriage is irretrievably broken. An uncontested mutual consent divorce typically takes 4-6 months total from filing to final decree.
If one spouse does not consent to divorce, the filing spouse may proceed under 23 Pa.C.S. § 3301(d), which requires proof that the parties have lived separate and apart for at least one year and that the marriage is irretrievably broken. This one-year separation period was reduced from two years by Act 102, effective December 5, 2016. Separation does not require living in different residences; couples may be legally separated while living under the same roof if they function as two separate households.
Fault-based grounds available under 23 Pa.C.S. § 3301(a) include adultery, desertion for one year or more, cruel and barbarous treatment endangering life, bigamy, imprisonment for two or more years, and indignities rendering the condition intolerable. Fault divorces have no waiting period but require proof of the alleged misconduct.
Property Division in Common Law Marriage Divorce
Pennsylvania follows equitable distribution principles for dividing marital property, meaning courts divide assets fairly but not necessarily equally. Under 23 Pa.C.S. § 3502, courts must consider 13 statutory factors when determining property division percentages. Common law marriage divorces apply these same standards, with property acquired during the marriage subject to equitable division.
| Comparison | Community Property States | Pennsylvania (Equitable Distribution) |
|---|---|---|
| Division Standard | 50/50 presumption | Fair, not necessarily equal |
| Court Discretion | Limited | Broad (13 factors) |
| Typical Outcome | Equal split | 50/50 to 60/40 typical |
| Separate Property | Clearly defined | May include appreciation |
| Date of Valuation | Varies | Date of separation |
Marital property includes all assets and debts acquired during the marriage, regardless of title. In common law marriages, determining the marriage date requires establishing when the parties exchanged verba in praesenti, which may differ from when they began cohabiting. Courts will examine evidence to determine the specific date the marriage commenced for purposes of classifying property as marital or separate.
Separate property exempt from division includes assets owned before the marriage, inheritances received by one spouse individually, gifts from third parties to one spouse, and property protected by prenuptial agreements. However, appreciation of separate property during the marriage may be classified as marital property subject to division. Interest, dividends, and increased value accruing during the marriage can become marital property even when the underlying asset was separate.
The 13 statutory factors under 23 Pa.C.S. § 3502 include: length of the marriage; prior marriages; age, health, and income of each party; contributions as homemaker; standard of living during marriage; vocational skills and employability; estate, liabilities, and needs of each party; contribution to education or training of the other; opportunity for future capital acquisition; income sources including retirement benefits; contribution or dissipation of marital property; custodial responsibilities; and any other relevant factors.
Alimony and Spousal Support Rights
Spouses in common law marriages have identical alimony rights to those in licensed marriages. Pennsylvania courts may award alimony when it finds support is necessary after considering 17 statutory factors under 23 Pa.C.S. § 3701. The existence of a common law marriage, once proven, entitles the dependent spouse to seek all forms of spousal support available under Pennsylvania law.
Pennsylvania recognizes three distinct types of spousal payments: spousal support, alimony pendente lite (APL), and post-divorce alimony. Spousal support covers the period after separation but before a divorce complaint is filed. APL under 23 Pa.C.S. § 3702 provides temporary support during divorce proceedings. Post-divorce alimony under § 3701 is awarded only when the court finds it necessary after weighing all 17 statutory factors.
For temporary support calculations, Pennsylvania Rule of Civil Procedure 1910.16-4 provides a formula: 33% of the higher earner's monthly net income minus 40% of the lower earner's monthly net income when no children are involved. When children are present, the formula adjusts to 25% and 30% respectively. These percentages apply to spousal support and APL but not to post-divorce alimony.
Post-divorce alimony has no formula calculation. Courts consider factors including: relative earnings and earning capacities; ages and physical, mental, and emotional conditions; sources of income including retirement benefits; duration of marriage; contributions to the other's education or training; custodial responsibilities; standard of living established during marriage; relative education and time to acquire sufficient training; assets and liabilities; property brought to marriage; homemaker contributions; relative needs; marital misconduct (except post-separation conduct, unless involving abuse); tax implications; whether the seeking party lacks property for reasonable needs; and whether the party is incapable of self-support.
Same-Sex Common Law Marriage Rights
Same-sex couples who established common law marriages in Pennsylvania before January 1, 2005, have full constitutional rights to prove their marriages and obtain divorces on equal terms with opposite-sex couples. The Pennsylvania Superior Court established this principle in In Re: Estate of Carter (2017), holding that the U.S. Constitution mandates same-sex couples have the same right to prove common law marriage as opposite-sex couples.
The Superior Court's analysis recognized that Pennsylvania's former prohibition on same-sex marriage was unconstitutional even before the Whitewood v. Wolf decision in 2014. The court stated: "[S]ame-sex couples have precisely the same capacity to enter marriage contracts as do opposite-sex couples, and a court today may not rely on the now-invalidated provisions of the Marriage Law to deny the constitutional reality." This ruling means same-sex couples can retroactively establish common law marriages formed before 2005.
For same-sex couples seeking to prove a pre-2005 common law marriage, the same evidentiary standards apply. Courts require clear and convincing evidence of verba in praesenti and reputation of marriage. Evidence of cohabitation, joint finances, presenting as a married couple to the community, and other indicia of marital intent supports the claim. Once established, the same-sex couple's marriage entitles them to all marital rights including equitable distribution, alimony, and inheritance protections.
In 2024, the Pennsylvania House passed HB 2269 by a vote of 133-68 to codify marriage equality by updating the state's definition of marriage and repealing provisions that only recognized opposite-sex marriages. While this legislation addresses ceremonial marriages, it reflects the state's broader recognition of same-sex marital rights that the courts have protected through constitutional analysis.
Child Custody and Support in Common Law Divorce
Children born during a valid common law marriage have the same legal status as children born to parents with licensed marriages. Both parents have equal rights and responsibilities regarding custody, visitation, and child support. Pennsylvania courts apply the same best-interests-of-the-child standard when determining custody arrangements in common law marriage divorces.
Child support calculations follow Pennsylvania's income shares model under Pa.R.C.P. 1910.16-1 through 1910.16-7. The guidelines consider both parents' combined monthly net income, number of children, and custodial arrangements. Support amounts range from approximately 17% of the obligor's income for one child to 32% for six or more children, adjusted based on the parties' relative incomes and custody schedules.
Custody determinations under 23 Pa.C.S. § 5328 require courts to consider 16 factors including: which party is more likely to encourage contact with the other parent; present and past abuse; parental duties performed; need for stability; availability of extended family; sibling relationships; well-reasoned preference of the child based on maturity and judgment; attempts to turn the child against the other parent; which party is more likely to maintain a loving relationship; and proximity of the parties' residences.
What Happens if Marriage Status Is Contested
When one party disputes the existence of a common law marriage, the court holds a preliminary evidentiary hearing to determine marital validity before proceeding to divorce issues. The party claiming common law marriage bears the burden of proof and must present clear and convincing evidence of both verba in praesenti and reputation of marriage. This hearing may involve witness testimony, documentary evidence, and expert analysis of the relationship's history.
If the court finds insufficient evidence of common law marriage, the petitioner's divorce claim fails because there is no marriage to dissolve. However, the parties may still have property and support rights under other legal theories. Cohabitants without valid marriages may pursue claims for palimony (if they have written cohabitation agreements), constructive trusts, resulting trusts, or unjust enrichment. These remedies are far more limited than marital rights but may provide some recovery.
The timeline for a contested common law marriage divorce extends significantly beyond typical uncontested cases. While a mutual consent divorce may conclude in 4-6 months, cases requiring an evidentiary hearing on marital status may take 12-24 months or longer. Legal fees also increase substantially when marital validity is disputed, with attorney costs potentially exceeding $15,000-$30,000 for complex contested cases compared to $1,000-$3,000 for simple uncontested matters.
Documentation is critical in contested cases. Parties should gather tax returns showing married filing status, property records, bank statements, insurance documents, correspondence, and witnesses who can testify about the couple's relationship and public presentation as married. The more contemporaneous documentation available from the period before 2005, the stronger the claim will be.
Frequently Asked Questions
Can I get a common law divorce in Pennsylvania if my relationship started after 2005?
No, Pennsylvania abolished common law marriage effective January 1, 2005, under 23 Pa.C.S. § 1103. Couples who began their relationships after this date cannot establish common law marriages regardless of cohabitation length. However, Pennsylvania recognizes valid common law marriages from states that still permit them if you moved to Pennsylvania from such a state.
How much does it cost to divorce from a common law marriage in Pennsylvania?
Pennsylvania divorce filing fees range from $135 to $388 depending on county, plus service costs of $50-$125. As of January 2026, Philadelphia County charges $333.73 and Bucks County charges $388. Total DIY divorce costs run $400-$500, while contested divorces with attorneys average $15,000-$30,000. Fee waivers are available for those below 125% of federal poverty guidelines.
How long does a common law marriage divorce take in Pennsylvania?
Mutual consent divorces require a 90-day waiting period minimum and typically conclude in 4-6 months. If your spouse does not consent, you must wait one year of separation before filing under 23 Pa.C.S. § 3301(d). Contested cases disputing marital validity may take 12-24 months due to evidentiary hearings on whether the common law marriage existed.
What evidence do I need to prove my common law marriage existed?
You need clear and convincing evidence of exchanging verba in praesenti (words of present intent to marry) and reputation as a married couple. Strong evidence includes: joint tax returns filed as married, property titled jointly as husband/wife, beneficiary designations naming spouse, joint accounts, and testimony from witnesses who knew you as married. The burden of proof is higher than typical civil cases.
Do I have to prove my common law marriage was valid before getting a divorce?
Yes, if your spouse contests the marriage's existence. If both parties agree you were common law married, the court accepts this stipulation. If contested, you must present evidence at an evidentiary hearing proving: (1) exchange of verba in praesenti before January 1, 2005, and (2) constant cohabitation and general reputation as married. The divorce cannot proceed until marital validity is established.
Are same-sex couples entitled to common law marriage recognition in Pennsylvania?
Yes, the Pennsylvania Superior Court in In Re: Estate of Carter (2017) held that same-sex couples have the constitutional right to prove common law marriages established before January 1, 2005. The court applied Obergefell v. Hodges retroactively, ruling that Pennsylvania's former same-sex marriage ban was unconstitutional even when those relationships formed. Same-sex couples face the same evidentiary requirements as opposite-sex couples.
How is property divided in a common law marriage divorce?
Pennsylvania applies equitable distribution under 23 Pa.C.S. § 3502, dividing marital property fairly but not necessarily 50/50. Courts consider 13 factors including marriage length, each spouse's income and earning capacity, contributions as homemaker, and custodial responsibilities. Typical divisions range from 50/50 to 60/40, though courts may award different percentages based on circumstances.
Can I receive alimony after a common law marriage divorce?
Yes, common law spouses have identical alimony rights to licensed marriage spouses. Courts award alimony under 23 Pa.C.S. § 3701 when found necessary after considering 17 factors including relative earnings, marriage duration, contributions to education/training, and ability to become self-supporting. Temporary support during divorce follows a formula: 33% of higher earner's income minus 40% of lower earner's income.
What if my spouse lives in another state?
You can file for divorce in Pennsylvania if you meet the 6-month residency requirement under 23 Pa.C.S. § 3104, even if your spouse lives elsewhere. File in the county where you reside. Pennsylvania courts can grant the divorce and address custody of children in Pennsylvania, but may have limited jurisdiction over out-of-state property or enforcement of support orders without the other state's cooperation.
Does cohabitation after 2005 create any legal rights in Pennsylvania?
No marital rights arise from post-2005 cohabitation regardless of duration. Cohabitants without valid marriages are not entitled to equitable distribution, alimony, or inheritance rights as surviving spouses. However, cohabitation agreements can create contractual rights. Unmarried partners may also pursue claims for jointly titled property, constructive trusts, or unjust enrichment in limited circumstances. Marriage remains the only path to full spousal rights for relationships beginning after January 1, 2005.