Capacity to be married means there can be no impediments standing in the face of the potential marriage. An example of this would be if one of the individuals were already married. This would bar any form of common law marriage of this person to someone other than his or her spouse. A present agreement to be married is very similar to an exchange of vows. This means that at some point in the relationship, the couple must have made a statement acknowledging their status as being married. This statement cannot be future oriented, it must be in the present. Holding out to the community as being married means the couple openly acts and refers to themselves as a married couple. To anyone who didn’t know otherwise, the couple was married in the eyes of the people who surround them on a daily basis. Finally, the couple must have lived together for an unspecified period of time. As mentioned above, there is no specific period of time requirement.
Any couple that has displayed such things as above prior to 2005 may still make a claim for common law marriage. Unfortunately if such instances occurred after 2005, they are now barred.