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Cohabitation, Common Law Marriage, and the Rights of Unmarried Parents

Posted on in Family Law

Wheaton family law attorney

According to a study conducted by the Pew Research Center, there has been an increase in unmarried but cohabiting parents over the last two decades. Since 1997, the number of cohabiting parents has risen to 35 percent. The practice of cohabitation prior to, or rather than, marriage has become a practice popular with the millennial generation. The reasons for the rise are primarily economic, plus the desire to avoid the constraints of a legally binding marriage. The practice of cohabitation has some similarity to the old tradition of common law marriage. This was the practice of two individuals cohabiting together and, in some cases, enjoying the rights and benefits of marriage, but without official recognition from the state.

Does a common law marriage, or a cohabiting couple, get the same rights as a legal marriage, and what rights does a cohabiting parent have if a separation occurs?

The History of Common Law Marriage

The practice of common law marriage, or non-ceremonial marriage, was a practice recognized under the common law in England. It became popular in America in the Wild West when finding an official to perform a marriage ceremony was difficult. In 1877, the United States Supreme Court upheld in the case of Meister v. Moore that common law marriages were enforceable unless the states issued a statue which forbade it. In 1905, Illinois did just that when it passed the Illinois Marriage and Dissolution of Marriage Act, which, in section 214, specifically bans common law marriages.

This means that in the state of Illinois marriage must be certified by an empowered official. Without state recognition, couples who are engaged in cohabitation do not have the same legal rights as those that are married.

What Rights Do Cohabiting Parents Have?

If, while cohabiting, a couple has a child together and later separates, Illinois state law outlines the process for considering the parent’s rights. According to the Illinois Parentage Act of 2015, the courts have the authority to determine everything from parentage, child support, parent time allocation, etc., when considering what is in the best interests of the child. Judges must take into account the child’s mental, physical, and emotional well-being. If the court is silent on parental responsibility then all rights are assumed to belong to the mother, unless the child has resided with the other parent for the past six months.

Contact a DuPage Family Law Attorney

Just because you were not married does not mean you do not have rights. Every parent, regardless of their situation, has a right to be present in their child’s life. If your separation is endangering your relationship with your child, you need skilled legal representation immediately. Anderson & Associates, P.C. has vast family law experience, including unmarried parent issues. If you have questions regarding your rights as an unmarried parent, contact a Wheaton family lawyer today 630-653-9400 for a free initial consultation.





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