Most people may be familiar with the term "common law marriage." Common law marriage was recognized in Mississippi up until 1956. To establish a common law marriage, a man and woman would live together, share property, and generally consider themselves husband and wife. The policy regarding common law marriage was changed by statute, and Mississippi law now requires a valid license for all marriages.
Since common law marriage is no longer recognized in Mississippi, issues may arise when a couple has lived together without the benefit of marriage and then decide to go their separate ways. Such issues may include division of property or the award of child custody. Other problems may arise if either the man or woman dies without a valid will. The survivor may have difficulty proving that he or she was intended to inherit from the deceased partner in the relationship.
The custody and support of children born to unmarried couples is routinely addressed by Chancery courts in Mississippi. However, the law in Mississippi has, until recently, been fairly clear that common law marriages will not be recognized and that upon a separation between an unmarried couple, there could be no legal division of assets accumulated during the relationship. In Davis v. Davis, 643 So. 2d 931 (Miss. 1995), for example, the Mississippi Supreme Court held that where a man and woman had lived together for thirteen years without being married, the woman was not entitled to share in the assets accumulated by her companion during their relationship.
In contrast, the Court of Appeals recently held in Cotton v. Cotton, 44 So. 3d 371 (Miss. Ct. App. 2010), that a woman was entitled to her fair share of the assets accumulated during a marriage which was deemed by the court to be invalid (she failed to obtain a divorce from her first husband before marrying her second husband). In Cotton, the Court of Appeals upheld the chancellor's decision to award distribution of the couple's property between the man and woman as if they had been legally married. Ordinarily, unmarried persons would not be entitled to the benefits of marriage where there is not a valid marriage, including the distribution of property in the event of a split-up.
Cotton is distinguishable from Davis because the Court in Cotton acknowledged that although a couple is not married, when they live together and both contribute to the accumulation of personal property or real property, a party having no legal title to the property does gain rights to their fair share of the property. However, the remedy of equitable distribution is only available where the couples presented themselves as a married couple and acquired property through their joint efforts.