Common law and statutory marriage have the following characteristics in common:
1. Both parties must freely consent to the marriage
2. Both parties must be of legal age to contract a marriage or have parental consent to marry
3. Neither party may be under a disability that prevents him or her from entering into a valid marriage - e.g. they must both be of sound mind, neither of them can be currently married (except in Saskatchewan), and some jurisdictions do not permit prisoners to marry.
Otherwise, common law marriage differs from statutory marriage as follows:
1. There is no marriage license issued by a government and no marriage certificate filed with a government
2. There is no formal ceremony to solemnize the marriage before witnesses
3. The parties must hold themselves out to the world as husband and wife (this is not a requirement of statutory marriage)
4. Most jurisdictions require the parties to be cohabiting at the time the common law marriage is formed. Some require cohabitation to last a certain length of time (e.g. three years) for the marriage to be valid. But cohabitation alone does not create a marriage.
The parties must intend their relationship to be, and to be regarded as, a legally valid marriage.
When a marriage is validly contracted, whether according by statutory provision or according to common law, the marriage can be dissolved only by a formal legal proceeding in a court of competent jurisdiction - usually a family or probate court.
In the U.S. state of Texas, a new provision was added to the Family Code; either partner in a common law marriage has two years after separation to file an action in order to prove that the common law marriage existed. To use the provision, the separation must have occurred after September 1, 1989.
Since the mid-1990s, the term "common law marriage" has been used in parts of Europe and Canada to describe various types of domestic partnership between persons of the same sex as well those of the opposite sex. Although these interpersonal statuses are often, as in Hungary, called "common law marriage" they differ from true common law marriage in that they are not legally recognized as "marriages" but are a parallel interpersonal status, known in most jurisdictions as "domestic partnership", "registered partnership", "conjugal union" or "civil union" etc.
Not all agreements break statutes. Some are illegal because they break public policy, which is generally "to discourage any interference with the freedom of choice" (Saskatchewan, Canada, excepted). An agreement forbidding a party to marry or bribing a party to refrain from marriage is considered "Interference with Marriage Relation" or an "Agreement in Restraint of Marriage"; such agreements are typically held to be nonbinding.