Putative Marriage Versus Common Law Marriage

When someone is a putative spouse, they are unaware that their marriage is not legal. They may act as they are married for years, unaware of the fact that due to a legal impediment, they have never been married. A common law spouse is aware that he or she is not technically married.

Common law marriages and putative marriages are not considered to be real marriages. However, they are both usually legally binding in many state courts, depending on the jurisdiction. Both common law and putative spouses generally have legal rights that are similar to a regular spouse.


Common law marriages are not licensed marriages. Although putative ones are not licensed either, they are assumed to be. For a couple to pursue a common law marriage, they must vow to live as husband and wife would. This means that they both have to be legally able to marry each other. Neither can be married to anyone else, and both spouses must be of legal age. Common law marriage is only possible when both the husband and wife are legally able to be married.

A putative marriage follows the same standards, since it is like a regular marriage. However, it may be one of these factors that makes it a putative marriage. If a couple is married and one spouse finds out that their previous divorce is not completed, they have been in a putative marriage.


Putative spouses are allowed to sue their spouses for financial support and assets. Since the putative spouse is unaware that they are in a false marriage, legal rights have been set up to help protect them. If one partner in a putative marriage has been lied to and fooled into falsely marrying, they have almost every right that a regular spouse has when seeking divorce damages.

Both of these alternative marriages follow many of the same guidelines as regular marriages. Common law marriages are even recognized by the IRS. Both marriages need some form of legal resolution if they end. However, spouses entering a common law marriage are aware that the marriage they are entering is not a standard one, while one or both partners in a putative marriage do not know.