Marc R. Lynde, Esq.
Pennsylvania abolished common-law marriage in 2005. Couples who cohabitate without marriage no longer acquire the legal status of spouses. However, unmarried couples may have children together, share property, and incur financial obligations. Understanding the rights and limitations for unmarried parents, regarding paternity, custody, support, and property, is critical in Pennsylvania family law.
Under 23 Pa.C.S. § 1103, no common-law marriage contracted after January 1, 2005, shall be valid. This applies regardless of how long the couple cohabitated, whether they held themselves out as married, or whether they intended to be married. Common-law marriages created before January 1, 2005, remain valid if they were valid under Pennsylvania law at the time of creation, but no new common-law marriages can be created in Pennsylvania.
The practical effect: couples living together without a formal marriage license cannot claim spousal rights (alimony, equitable distribution, inheritance) based on the cohabitation alone. However, they retain parental rights regarding any children born to them.
If an unmarried couple has a child, the father must establish paternity to have parental rights or obligations. This is distinct from being on the birth certificate. Paternity can be established in two ways:
Voluntary acknowledgment of paternity (§ 5103(a)): The father can file an acknowledgment of paternity with the Department of Human Services (formerly the Department of Public Welfare) with the written consent of the mother, supported by her witnessed statement. The hospital typically provides this form at birth. Once filed and accepted, the father has all parental rights and duties as if married to the mother at the time of birth, and the child has all inheritance and support rights as if born to a married couple.
Claim of paternity (§ 5103(b)): If the mother refuses to join in the acknowledgment, the father can file a claim of paternity, which is indexed by the Department of Human Services. A filed claim does not give the father parental rights, but it does require that he be notified of any proceeding to terminate parental rights.
Court-established paternity: If paternity is disputed, either parent can file an action to establish paternity. Under 23 Pa.C.S. Chapter 51 (Responsibilities of Parents), the court will order genetic testing if necessary and will determine paternity by a preponderance of the evidence or based on the genetic test results (which are usually conclusive if the alleged father is not excluded).
Unmarried parents have the same custody and support rights as married parents. The mother has automatic custody at birth. The father must establish paternity to obtain parental rights. Once paternity is established, both parents may seek custody, visitation , and child support under the same legal standards as married parents.
Custody is determined based on the best interest of the child under 23 Pa.C.S. § 5328, without regard to the marital status of the parents. The court applies the same factors whether the parents are married, divorced, or never married.
Once paternity is established, the father (or either parent in certain circumstances) is liable for child support under the Pennsylvania Child Support Guidelines (23 Pa.C.S. Chapter 43). The guidelines are applied identically to unmarried parents and divorced parents. Support is based on both parents' income, custody time, and the child's expenses, without regard to marital status.
The Domestic Relations Section of the Court can enforce child support through wage garnishment, tax refund intercept, and other collection mechanisms, the same as in any divorce case.
The major difference for unmarried couples: they cannot use equitable distribution to divide property. Equitable distribution applies only to marital property and is a remedy available only to spouses or in divorce actions.
If unmarried couples own property together or dispute ownership of property, they must resolve the dispute through civil claims: breach of contract, unjust enrichment, breach of implied contract, partition (if co-owners of real estate), or conversion. These claims are more difficult to prove and offer less predictable remedies than equitable distribution.
Example: If an unmarried partner claims the other promised to buy a house and put it in both their names but only the paying partner's name appears on the deed, the claiming partner would need to prove an express or implied contract, or unjust enrichment, rather than relying on equitable distribution. This is more fact-intensive and uncertain.
Pennsylvania recognizes claims for support between unmarried partners who cohabitated, commonly called "palimony." However, unlike alimony (which is statutory for spouses), palimony requires proof of an express or implied contract for support. The burden is on the person claiming support to prove that the parties intended to enter into a support arrangement.
Courts are skeptical of palimony claims based on cohabitation alone. You must show a specific agreement, whether oral or written, that one party would support the other. Evidence might include correspondence, testimony from both parties, third-party witnesses, or the pattern of financial conduct during the relationship.
Palimony can also be modified or terminated more easily than alimony, as there is no statutory framework. The enforceability depends on the specific contract.
Unmarried couples can enter into written cohabitation agreements specifying how property is to be divided, how expenses will be shared, and whether one party will support the other if the relationship ends. These agreements are enforceable if they are clear, specific, and not unconscionable.
A cohabitation agreement can:
These agreements should be in writing, signed by both parties, and preferably reviewed by an attorney. They should not attempt to circumvent child custody or support laws, which cannot be contracted around.
If one unmarried partner dies, the surviving partner has no automatic right to inherit. There is no spousal inheritance right. The deceased's property passes according to their will (if they have one) or under Pennsylvania's intestacy laws if they do not. An unmarried partner has no intestacy rights unless named in the will or a beneficiary designation.
Planning point: Unmarried couples should execute wills naming each other as beneficiaries if they wish to inherit each other's estates. They should also consider powers of attorney for healthcare and finances, as they have no default surrogate decision-making authority like spouses do.
Unmarried partners cannot make health care decisions for each other unless they execute a Healthcare Power of Attorney (advance directive). If one partner becomes incapacitated without such a document, the other has no authority to make medical decisions, consent to treatment, or access medical records. Family members of the incapacitated person may be appointed instead.
Critical planning point: Every unmarried partner should execute a Healthcare Power of Attorney naming the other as their healthcare agent. This is inexpensive and takes little time but can be crucial in an emergency.
No Common-Law Marriage = No Divorce
If you are in an unmarried relationship in Pennsylvania, you cannot get divorced because you cannot have been married without a license. You also do not have spousal rights in one another's estates, and you cannot use equitable distribution to divide property. Plan accordingly.
If you have children with an unmarried partner: Establish paternity immediately. If both parents are on the birth certificate and acknowledge paternity, parental rights are clear. If not, file a paternity action promptly. Do not assume that time or cohabitation will establish parental rights; they will not.
If you own property with an unmarried partner: Consider a written agreement specifying ownership and how the property will be divided if you separate. Title (who is on the deed) matters greatly in the absence of a contract.
If you intend to support an unmarried partner or expect support from them: Consider a written cohabitation agreement. Oral agreements are harder to prove and less enforceable.
Regardless: Execute a Healthcare Power of Attorney naming your partner as your healthcare agent, and a Financial Power of Attorney naming them as your financial agent. Execute or update your will. These are the foundational documents that protect unmarried partners.
Statutory content on this page was last verified against Pennsylvania statutes (23 Pa.C.S.): March 2026 . If you are reading this significantly after that date, confirm key provisions with current statute text or contact our office.
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