Delaware’s history provides a useful answer to a modern family-law question. The state inherited much of its legal tradition from English common law, yet its courts concluded more than a century ago that living together without following marriage formalities does not create a Delaware marriage.
Delaware is a common-law legal-system state, but not a state where couples can establish new common-law marriages. It is also not a community-property state. During marriage, property can remain separately owned; at divorce, a court generally divides the marital estate fairly under statutory rules.
These distinctions are especially important for unmarried couples who share property, spouses with gifts or inheritances, and anyone who entered a legally valid common-law marriage in another state before moving to Delaware. The rules for marriage recognition and property division are not interchangeable.
Understanding Delaware’s Common-Law Legal System
Delaware belongs to the common-law legal tradition. Its judges interpret statutes and apply relevant judicial precedent when deciding disputes. The state’s historic connection to English common law is explicit: Article 25 of Delaware’s 1776 Constitution preserved applicable English common law unless changed by the legislature.
Modern Delaware law includes detailed statutes, court rules, and decisions. The state is particularly known for its Court of Chancery and the use of equity—a body of principles that can provide remedies beyond ordinary money damages. Equity is part of Delaware’s legal system, not proof that informal marriages are valid.
A common-law legal system should be distinguished from common-law marriage and common-law property ownership. The first concerns the role of precedent; the second concerns marital status; the third generally contrasts separate ownership with a community-property system.
Is Delaware a Common-Law Marriage State?
No. Delaware does not permit couples to establish a common-law marriage merely by living together in the state. In a 1920 ruling, Delaware judges rejected the idea that informal cohabitation created a marriage, concluding that the state’s marriage legislation had displaced the older common-law approach. Delaware Courts’ official history discusses that decision.
There is no rule that partners become married after seven or ten years. Shared expenses, a joint lease, or a family reputation as spouses cannot substitute for the state’s marriage requirements.
What Is Required for a Legal Marriage in Delaware?
Delaware uses a marriage license and solemnization process. Under 13 Delaware Code § 106, an authorized person performs the ceremony, and at least two reputable adult witnesses must be present and sign the marriage certificate.
Couples should generally:
- Apply for a marriage license through the appropriate county Clerk of the Peace.
- Confirm the officiant is authorized under Delaware’s rules, including applicable registration requirements for clergy.
- Have the ceremony witnessed by at least two people aged 18 or older.
- Complete and return the certificate according to county instructions.
The ceremony can be religious or secular. A costly wedding celebration is not necessary, but the lawful marriage process matters.
Does Delaware Recognize a Common-Law Marriage From Another State?
A marriage validly created elsewhere may be recognized in Delaware, including a qualifying out-of-state common-law marriage. Recognition depends on the law of the place where the marriage arose and on Delaware’s own limits on marriages it will recognize.
13 Delaware Code § 126 says the marriage chapter should not invalidate an otherwise lawful common-law or other marriage merely because the couple did not obtain a Delaware license. That provision does not authorize couples to form a new common-law marriage in Delaware; the words “otherwise lawful” matter.
For example, partners who established a valid common-law marriage while living in Colorado may be able to establish their spousal status after relocating. But they must prove that the marriage actually existed under Colorado law. Delaware’s § 101 also contains restrictions affecting certain marriages formed elsewhere.
What About Couples Who Live Together Without Marrying?
Cohabitation is not a substitute for marriage, so an unmarried partner does not automatically receive a spouse’s inheritance or divorce rights. Ownership disputes generally turn on deeds, contracts, contributions, and other applicable property rules.
A written agreement can explain who owns jointly purchased real estate and what happens if the relationship ends. Such agreements should be drafted carefully to avoid uncertainty about property and financial obligations.
Is Delaware a Common-Law Property State?
Yes, in the broad sense that Delaware follows separate-property principles rather than automatic community ownership. Property can be individually titled during marriage, and marriage itself does not automatically convert every asset into a half-owned community-property asset.
Delaware law expressly recognizes separate ownership in 13 Delaware Code § 311. But title is not the only issue if a couple divorces. The divorce court determines which assets fall into the marital estate under § 1513 and how to divide them.
What Counts as Marital Property in Delaware?
Under 13 Delaware Code § 1513, assets acquired after marriage are generally presumed to be marital property, even if titled in only one spouse’s name. The statute excludes certain qualifying assets, including some gifts and inheritances, property exchanged for premarital assets, property excluded by valid agreement, and increases in value of premarital property.
A significant rule in the current statute covers jointly titled real estate acquired before marriage. Such property is included in the definition of marital property unless a valid agreement excludes it. Couples who bought a house together before their wedding should not assume it is outside the marital estate simply because they purchased it earlier.
Gift and inheritance exclusions also have specific requirements. Proper documentation and ownership records can determine how those exceptions apply.
How Does Delaware Divide Property in a Divorce?
Delaware follows equitable distribution, not an automatic 50/50 rule. Section 1513(a) directs courts, upon request, to divide marital property in just proportions without regard to marital misconduct.
Judges may consider marriage length, the spouses’ incomes and employment prospects, debts, each person’s contributions—including homemaking—and the economic circumstances of the household. In some cases, one spouse may receive the home while the other receives different assets to reach a fair overall outcome.
Fair division does not necessarily mean an equal share of each asset. It also does not mean that everything separately titled during marriage will be excluded.
Key Takeaways and Estate Planning Tips
- Check deeds and titles. Couples should confirm how jointly owned homes and other valuable assets are recorded.
- Make cohabitation arrangements clear. Unmarried partners can use written agreements addressing purchases, household debts, and separation.
- Preserve gift and inheritance records. Documentation may be crucial under Delaware’s statutory exceptions.
- Prepare estate documents. Wills, beneficiary designations, powers of attorney, and advance healthcare directives can help protect chosen partners.
- Keep evidence of any out-of-state marriage. Recognition may depend on proving the earlier marriage met another state’s rules.
Conclusion
Delaware follows common-law legal principles, but couples cannot create common-law marriages within Delaware. Its separate-property framework operates alongside equitable distribution at divorce, including special rules for some premarital jointly titled real estate.
Frequently Asked Questions
Q1. Can You Become Common-Law Married in Delaware by Living Together?
No. Delaware requires compliance with its legal marriage process. Living together for many years does not create a new marriage in the state.
Q2. Will Delaware Recognize a Common-Law Marriage From Another State?
It may, when the marriage was validly formed under that state’s law and is not barred by Delaware’s recognition rules. Evidence may be needed to establish marital status.
Q3. Does Delaware Split Marital Property Equally in a Divorce?
Not automatically. Delaware courts divide marital property equitably under § 1513, considering finances, contributions, needs, and other relevant factors. The outcome need not be 50/50.
