A Short History of the Marriage License & Common Law Marriages

Published Tuesday, Jan. 17th, 2023

Learn about the history of the marriage license and common law marriage in the U.S., from ancient rituals like handfasting, through the Middle Ages, to modern marriage equality for same-sex and interracial couples.

From handfasting and common law marriage, to calling banns and the modern marriage license

The concept of marriage has been around for as long as humans have gathered together for support and love – which is to say, a really long time.

In the beginning, all ‘marriages’ were essentially common law marriages. Couples were simply declared to be married by their families or themselves, and began to live together, forming alliances, joining resources, tending to the home, and raising children. Most of these first unions were agreements between two families, rather than two individuals.

As centuries passed and societies grew, meaningful rituals like handfasting blossomed around the celebration of marriage. Early marriage rites were closely linked to the turning of the seasons, yearly harvests and fertility celebrations, and offerings to gods and spirits.

Close up photo of newlyweds with their wrists tied by ribbons during a handfasting wedding ceremony

A handfasting with colorful symbolic ribbons, photo by Christelle Leboucq

Marriage rituals became progressively more complicated in modern eras, with the increasing recognition of women’s rights; the need to protect and provide for children; concerns over inheritances, estates, and property division; and new oversight by churches and local governments.

The involvement of governing institutions in marriage expanded, such as the practice of ‘calling banns of marriage’ by the Anglican and Catholic Churches. ‘Calling banns’ was a public announcement of an upcoming marriage, usually made for 3 consecutive weeks by a priest at the couple’s church. Sometimes, these banns (or proclamations) were put in writing and published.

By the end of the Middle Ages, written marriage contracts had become a regular part of the marriage process.

The marriage license had arrived!

Still, common law marriages remained the standard practice for most families, who didn’t have great wealth or property to think about. These ‘informal’ marriages would continue to be legally binding and widely accepted for several more centuries, even as the popularity of written contracts increased.

One of the first marriage licenses recorded in the United States was in the 17th Century, around 1639, in colonial Massachusetts. Marriage licenses were adopted by various local governments over the following years, with each state passing their own laws to determine who could apply, and how.

By the 1900s, marriage licenses were a common part of the marriage process in every U.S. state. They were embraced as an easy way to maintain census data, settle disputes, and in some states, to enforce anti-miscegenation laws and bans against interracial marriages.

These days, only a few states still recognize common law marriages, and meeting the criteria for common law marriage can be difficult. All states have provisions in place for the application, issuance, completion, and return of marriage licenses, but these vary from state to state.

Thankfully, bans against issuing marriage licenses to interracial couples and same-sex couples have been overturned by cases like Perez v. Sharp, Loving v. Virginia, and Obergefell v. Hodges, and protected by new measures like the 2022 Respect for Marriage Act.

Now, all couples can apply to marry and be issued a marriage license in the state where they live.

Photo of an interracial same-sex couple dancing after their wedding ceremony, surrounded by friends and family members

We support marriage equality for all couples!

Wedding Officiant Training:
All About the Marriage License

Everything you’ve ever wanted to know about the marriage license process! Including who applies for a license, how to fill out and sign a marriage license, who returns the license to the clerk to be filed after a wedding ceremony, and more.

See the full marriage license topic menu here.

_ ♡ _

Learn more about common law marriage:

A Short Introduction to Informal & Common Law Marriage

An intro to informal and common law marriage, including what common law marriage means and which states allow these informal marriages.

See full article here.

You might also like:

Jessica Levey

Lead Staff Writer & Illustrator

Jessica loves exploring the history and magic of ritual, the connections between people and places, and sharing true stories about love and commitment. She's an advocate for marriage equality, LGBTQ+ rights, and individuality, and is an ordained Minister with AMM. When she’s not writing or illustrating for AMM, she enjoys city hikes, fantasy novels, comics, and traveling.

Last Article:

It’s Time to Eliminate the Marriage Penalty for Disabled Adults

Salt & Sage Love Smudge for a Lowkey Pagan Wedding Blessing