Prior the advent of modern domestic relations statutes, parties became married by a variety of means that developed from ancient custom. These became the elements of a "common-law marriage," or one that arose by operation of law through the parties' conduct, rather than pursuant to a ceremony. In many ways, the theory of common-law marriage is one of estoppel - that parties who have themselves told the world they are married should not be heard to claim that they are not married in a dispute between the parties themselves.
Common-law marriage is generally a non-ceremonial relationship that requires "a positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, cohabitation sufficient to warrant a fulfillment of necessary relationship of man and wife, and an assumption of marital duties and obligations." Black's Law Dictionary 277 (6th ed. 1990). Common-law marriages were recognized in some of the colonies prior to independence, and in many states after independence.
Currently, only 9 states (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma, Texas and the District of Columbia; see notes below re Utah and Pennsylvania) recognize common-law marriages contracted within their borders. See, Piel v. Brown, 361 So. 2d 90, 93 (Ala. 1978); Deter v. Deter, 484 P.2d 805, 806 (Colo. Ct. App. 1971); Johnson v. Young, 372 A.2d 992, 994 (D.C. 1977); Smith v. Smith, 161 Kan. 1, 3, 165 P.2d 593, 594 (1946); Sardonis v. Sardonis, 106 R.I. 469, 472, 261 A.2d 22, 23 (1970); Johnson v. Johnson, 235 S.C. 542, 550, 112 S.E.2d 647, 651 (1960); IOWA CODE ANN. §. 595.11 (West 1981); MONT. CODE ANN. § 26-1-602, 40-1-403 (1985); OKLA.STAT. ANN. tit. 43, § 1 (West 1979); TEX. FAM. CODE ANN. § 191 (Vernon 1975).
New Hampshire has a limited form of common law marriage effective only at death. See N.H. REV. STAT. ANN. § 457:39 (1983).
Tennessee has employed a doctrine of "estoppel to deny marriage." See Note, Informal Marriages in Tennessee - Marriage by Estoppel, by Prescription and by Ratification, 3 VAND. L. REV. 610, 614-15 (1950).
Texas calls it an "informal marriage," rather than a common-law marriage. Under § 1.91 of the Texas Family Code, an informal marriage can be established either by declaration (registering at the county courthouse without having a ceremony), or by meeting a 3-prong test showing evidence of (1) an agreement to be married; (2) cohabitation in Texas; and (3) representation to others that the parties are married. The 1995 update adds an evidentiary presumption that there was no marriage if no suit for proof of marriage is filed within two years of the date the parties separated and ceased living together.
In Utah (UTAH CODE ANN.§ 30-1-4.5), a marriage which is not conventionally solemnized is valid if a court or administrative order establishes that it arises out of a contract between two consenting parties who: (a) are capable of giving consent; (b) are legally capable of entering a solemnized marriage; (c) have cohabited; (d) mutually assume marital rights, duties, and obligations; and (e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife. The determination or establishment of such a marriage must occur during the relationship or within one year following the termination of that relationship.
The Pennsylvania Commonwealth Court apparently abolished common-law marriage in that state in PNC Bank Corp. v. Workers Comp. Bd. (Stamos), 860 CD 2002 (Sep. 17, 2003). It is unclear whether that decision will withstand appellate scrutiny and to what extent it is retroactive.
Most states have abolished common-law marriage by statute. Common-law marriage was seen as encouraging fraud and condoning vice, debasing conventional marriage, and as no longer necessary with increased access to clergy and justices of the peace. See, e.g., CAL. CIV. CODE § 4100 (West 1983); N.Y. DOM. REL. LAW § 11 (McKinney 1988 & Supp. 1992); Furth v. Furth, 133 S.W. 1037, 1038-39 (Ark. 1911); Owens v. Bentley, 14 A.2d 391, 393 (Del. Super. 1940); Milford v. Worcester, 7 Mass. 48 (1910); Ira M. Ellman et al., Family Law: Cases, Text, and Problems 21 (1986). Idaho abolished common-law marriage effective 1/1/96 but legalized such marriages concluded prior thereto. Idaho Code § 32-201 (1998). Georgia repealed its common-law marriage statute, GA. CODE ANN. §§ 19-3-1 and 19-3-1.1, which voids any common law marriage purported to have been contracted on or after 1/1/97.
Among those states that permit a common-law marriage to be contracted, the elements of a common-law marriage vary slightly from state to state. The indispensable elements are (1) cohabitation and (2) "holding out." "Holding out" means that the parties tell the world that they are husband and wife through their conduct, such as the woman's assumption of the man's surname, filing a joint federal income tax return, etc. That means that mere cohabitation can never, by itself, rise to the level of constituting a marriage. Of course, many disputes arise when facts (such as intentions of the parties or statements made to third parties) are in controversy.
While it is presently only possible to conclude a common-law marriage in a limited number of jurisdictions, it was formerly much more widely possible. Many valuable estate rights today continue to depend the right to inherit through a common-law marriage concluded in the past in a state which subsequently abolished common-law marriage. The relevant laws of those states that have abolished common-law marriage are prospective in application, which means that common-law marriages contracted prior to the effective date of the statutes are valid.
Remember that the United States Constitution requires every state to accord "Full Faith and Credit" to the laws of its sister states. Thus, a common-law marriage that is validly contracted in a state where such marriages are legal will be valid even in states where such marriages cannot be contracted and may be contrary to public policy.
There may be bizarre consequences of such a rule. For example, suppose an unmarried couple from New York City makes a weekend outing to one of those hotels with the heart-shaped bathtubs in the Poconos. (Assume for purposes of this example that the former [i.e., pre-9/17/03] common-law marriage law of Pennsylvania was in effect.) They register as "Mr. and Mrs." They have just, possibly inadvertently, satisfied at least one portion of the evidentiary requirements for a common-law marriage in Pennsylvania (cohabitation and "holding out") and may have created a legitimate question regarding whether they are married when they return to New York. In they event of a dispute between them in New York after they return, a New York court must apply the laws of Pennsylvania to determine the validity of a common-law marriage purportedly contracted in Pennsylvania. (Pennsylvania law, while recognizing common-law marriages, does not allow such marriages to arise through inadvertence.)
There is no such thing as common-law divorce. Once parties are married, regardless of the manner in which their marriage is contracted, they are married and can only be divorced by appropriate means in the place where the divorce is granted. That means, in all 50 states of the United States, only by a court order.
Because the law of marriage and divorce varies from state to state, a person who may have valuable rights affected by such laws should consult with an attorney who specializes in such matters. The foregoing should not be construed as legal advice, which can only be given by an attorney who is admitted to practice in your state, to whom you pay a fee, and who in return undertakes to protect your rights and to explain your responsibilities.
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