Common Law Marriage to Be Made Illegal -- Good or Bad?

Great Debates
1

My home state, Pennsylvania, is considering passing a law which states "no common-law marriage, contracted after Jan. 1, 2005, shall be valid. (Here’s a link to the newspaper article I saw on it.) The article refers to a man who filed for death benefits from his common-law wife’s employer three years after she was killed in a plane crash. Her employer contested his right to her benefits, but the state’s Commonwealth Court ruled that, despite their never having been legally married, he qualified as her common-law husband. Common-law marriages date back to 1873, even though state law says “No person shall be joined in marriage in this commonwealth until a marriage license has been obtained.” Apparently part of the rationale behind this was 100 years ago, travelling to obtain a marriage license and undergo a civil ceremony was too time-consuming given the distance and terrain which would have to be travelled. The gentleman involved in the law suit I referred to said “When I got together with my wife, we wanted to have a big wedding, but in the meantime, we wanted to live together and be together. People should have the choice. A lot of people don’t believe in religion, a lot of people don’t want to go through a civil marriage.”

My question to you is, “What’s your take on this?” I have a rather old-fashioned streak, and I’m afraid I see nothing wrong with abolishing common-law marriage. If a couple is unwilling to take the rather small amount of time required to obtain a marriage license and undergo a civil ceremony to make a formal commitment, why should the unofficial commitment betweeen them be officially recognized by the law or by business? Pennsylvania’s definition of common-law marriage, according to the article I cited, doesn’t require cohabitation, only a “mutual expression of ‘vows’”. By those standards, I was married to a former fiance in Hawaii. I’ve officially witnessed my best friend’s marriagewhich was performed in a courthouse, albeit in West Virginia, not Pennsylvania, and it took very little time. In fact, her coworkers took the afternoon off work to watch, and there was still time for them or her to return to work if they chose to do so. I’ve no idea what marriage licenses cost, but I’m reasonably sure they’re cheaper than divorce lawyers. As for travel time, while Pennsylvania’s terrain is unchanged, traversing it has gotten a lot easier, even in spring when the potholes are in bloom! :rolleyes: I’m afraid I have a hard time seeing why a couple who have chosen to live together without being legally married should turn around and expect the state to recognize their legal marriage.

I’ll throw one other thing into the pot. Take a couple who are living together until one’s divorce becomes finalized. Since the latter is legally married (I’m assuming they did get a license, etc.) until his divorce becomes final, yet by living with the other half of the couple and swearing vows to her, he is in what has been regarded as a common-law marriage, could he be considered a bigamist? In the scenario I’m envisioning, technically he has two wives – one legal or conventional, albeit one he’s trying to get rid of or vice versa, and one common-law.

I’m interested in reading your responses!
CJ

2

Is that the right question? Considering that common law marriage has long established roots and precedence in the legal system, wouldn’t the question be why common law marriage should be abolished? Aren’t you shifting the burden of proof?

The linked article provides such arguments here:

By itself, I don’t find this argument compelling. Are there better arguments?

I’m not some strong “common law marriage proponent” by any means, I’d be fine if the government got totally out of the marriage business. However, I’m skeptical of the motivations of changing the recognition of common law marriage.

My understanding of common law marriage is that it required simply more than just a “mutual expression of vows”, but also required that the couple held themselves out to the community as married. Why is the marriage license the deciding factor? Isn’t a rose by any other name…

IANAL, and I’m not familiar with the Commonwealth’s legal standard for determining common law marriage without requiring cohabitation, but I must assume that it isn’t based on statute (but, logically, common law). It is an interesting bit of logic that the laws of Pennsylvania require a marriage certificate for the legal recognition of marriage, yet the courts (at least through this case) have recognized common law marriage. I wonder if more statutes will actually settle the matter.

And on your final twist, I’m pretty sure if the first party had not been pursuing a divorce, bigamy might apply. I thought the first step in a divorce filing was a (legal) declaration of a separation and an intent to terminate the marriage. Also, common law marriage normally incorporates a significant length of time of the couple representing themselves as “husband and wife”, so I doubt the bigamist argument would ever likely come into play.

In conclusion, I agree with the quote in the OP linked article from Marshall Miller (co-founder of the Alternatives to Marriage Project) that common-law marriage in practice is a legal mess. If anyone wants the reassurance of the benefits of marriage, then they should take the simple step of getting a license. Otherwise, they will face the burden of proving their common law marriage in the face of a jury (or judicial panel) as Mr. Kretz has dad to do. OTOH, I haven’t seen sufficient arguments for me to conclude that the long standing practice of recognizing common law marriage should be banned.

3

From the way the article reads, the PA legal take on common law marriage is rather unusual.

Most states basically say, “Yeah, ya didn’t jump through all the paperwork hoops, but ya benn living together as husband and wife for so long it makes no sense to say otherwise.”

PA seems to say “As long as you took vows, even though you don’t live together we’ll recognize it.” But the whole idea of a marriage license is an agreement between the couple and the state to have your vows recognized as valid for purposes of state-backed benefits between spouses. So PA seems to be saying (and please provide cites from the PA legal code if I’m wrong: “We refuse to recognize the validity your marriage vows unless you obtain a license, except in cases where you took vows without obtaining a license.” A 130-year-old SNAFU in the PA legal system that was brought to the fore by this case.

If the law actually reads as I have implied, there is a clear need for overhaul, and I applaud the legislature for doing so. Whether they are taking things in the right direction, I don’t know.

Common Law Marriage is an antiquated notion, and I don’t really see what the continuing need for it is, but I think there should have to be overwhelming evidence of inherent harm before you abolish a long-standing practice.

4

The important things, IMHO, are:

• No one should have to worry about “waking up married” without having done anything at all to make that happen other than living together with someone. Otherwise, marriage is being imposed on couples that dont’ care for the institution of marriage.

• Anyone who wishes to get married (and, of course, has the cooperation of someone who wishes to marry them in return) should be able to do so without having to deal with any institutionalized religion unless they wish to, and (perhaps) should have available to them a means of declaring themselves married without having to appear before any civil authorities either.

The last half of the second clause is being erased here. I’m only weakly supportive of the rationale behind it, though: if you don’t want the state involved in your marrriage, why do you give a rat’s ass whether the state recognizes your marriage or not?

Given the occurrence of violations of the first clause, I’d rather see common-law marriage go away, to tell you the truth. There was a thread posted not too long ago about a pair of women in Canada (where gay marriage is legal) who were “declared married” as per common law, ostensibly because they were living together and neighbors considered them “probably a couple”, with the result that one woman was being held responsible for the other woman’s debts.

5

I’ll go ahead and quote the entire page; it’s short, and since it’s a State of Colorado page, I wouldn’t anticipate copyright issues:

I would expect the common law to be the same in Pennsyvania as in Colorado. The Pa. court is getting carried away, in my non-lawyerly opinion. But there’s certainly no reason your legislature couldn’t abolish it, Siege, and I have no opinion on that.

A common-law marriage is treated in every way as a legal marriage. It takes a divorce to end it, and so on. The guy seeking death benefits had every right to do so, assuming that he’s telling the truth. Since he won, there must have been some evidence on his side.

A couple, one of whom is not yet divorced, does not meet the standards. And by the way, Hawaii does not recognize common-law marriage.

6

<sigh>

Since we’re dealing with Pennsylvania, not Colorado, it would seem that the only relevant cite would be to Pennsylvania statutes, which, apparently, the state does not see fit to publish on the Web.

An enterprising PA lawyer, however, seems to have taken it upon himself to publish some relevant information through his personal website .

Fron the Domestic Relations portion of his site:

The above is a footnote by the webmaster.

Elsewhere however (Chapter 13), the law states:

This last links back to the note quoted above.

So yes, the law basically says “We will not recognize your marriage without have a license, unless of course, you didn’t get one.”

This is a ridiculous state of affairs that cries out for repair.

7

Well, common law is common law, and is, by definition, not covered in the statutes. I don’t see anything there that contradicts what I posted.

8

I didn’t mean to imply that there was contradictory situation here.

I just thought that if we’re discussing the situation in Pennsylvania, we should be referencing the laws of Pennsylvania, not those of Colorado or Hawaii.

The site I referenced above seems to be the best I can do for now without paying legal fees.

You state that common law is not addressed by statutes, and yet the state is circumventing its own statutes with a common law marriage exception.

If the statutes, representing the will of the people of the state of Pennsylvania as put forth by their duly elected representatives, say that your claims to state-sponsored spousal benefits will not be recognized unless you have applied for a marriage license and undergone a state-approved ceremony, then what business does the state have in granting these same rights to those who have not gone through this process? If the “common law” is the true will of the people, let it be codified by removal of the license requirement. If not, then do not grant common law marriages equal footing with state-recognized ones.

9

This posting is, of course, complete speculation and thus subject to attack as unsubstantiated conjecture and probable bullshit. It seem to me, based on a professional life of some forty years of watching state legislatures take the bit in its teeth and gallop off to change, abrogate or prohibit some well and long established point of law, that what has probably happened here is that some member of the legislature has a cousin or well heeled constituent who was deprived of an expected windfall because the loot was grabbed up by some long time mistress of the presumed benefactor as the benefactor’s common law spouse. It happens all the time and the rage of the remote cousins and nieces and nephews knows no bounds when they realize that Uncle Moneybags’ stash is going to end up in the hands of the woman who has been sharing Uncle’s bed without benefit of clergy for the last twenty years. (Yes, I know that the concept has nothing to do with this topic and that benefit of clergy means that if you could read and write you would be deemed to be a cleric and immune to the jurisdiction of the king’s justice, but it has a nice ring to it.)

It is worth noting that the concept effectively protected women by affording them the right of a spouse, especially in probate and matters of intestate succession, and in divorce. I’m not sure what the Pennsylvania legislature had in mind but I’m reasonably sure it had something to do with the mistress getting something that some one near and dear to some legislator wanted very badly.

When ever they say it’s not about the money you can bet that it is about the money.

10

I’m still not quite sure what your thread is about Siege. I thought it was to do with the rights and wrongs of common-law marriage as opposed to the legal confusion surrounding it because this is how the thread is playing out at the moment.

Are you saying that the purposes behind Common Law Marriage, to provide the same benefits as “normal” marriage, are irresponsible and unnecessary?

In this case I would have to disagree with you. Recently all I hear is that things that were traditionally sacred are, in today’s world almost meaningless. Things like virginity and, in this case, marriage seem to be concepts taken lightly. So the religious connotations are slowly diminishing (which, IMO has no bearing on the meaning of marriage), the purpose of marriage still remains as a symbol of enduring love. So why is it so hard to understand that a couple may not want to take this step in their relationship because of a fear that it may end in divorce. Do these people deserve to be treated with less rights because they are not willing to marry, knowing something they consider to represent permanence may turn out to be temporary?

Common Law Marriage is something that can be abused. So it should be changed, not removed. People can abuse the power of marriage, in fact they do it today. Why do you think divorce rates are so high? People are so willing to put tax cuts and benefits ahead of a belief in something wholly good. Should we end marriage for this reason? No, and for this reason CLM should remain as well because long-term partners deserve the same benefits as a couple who spend 6 months together out of some given right they choose to abuse.

DISCLAIMER: If this has absolutely no bearing on the topic in question, dismiss it immediately, with my apologies. I am very tired so excuse me if you cannot understand what I have written, it appeared correct when I read through it. I just can’t believe that an 18 year old like myself can see the benefits of maintaining some traditions while those “older and wiser” dismiss these things right of. This is not an insult to any member of the Board… only their opinions :stuck_out_tongue:

11

Ummmmm my sister-in-law lived with her common law “husband” for 25-26 years and had two kids with his name on the birth certificate. When she decided to leave him (because he wouldn’t marry her) she was told that in Illinois there is no such thing as common law marriage.

12

At this point, about eleven states and the District of Columbia will recognize a “common law marriage,” that meets the legal test for that jurisdiction. Many of these states have enacted these legal tests as part of their family codes, so the marriage is not really according to the common (non-statutory) law, but a recognized form of non-ceremonial marriage. I believe that in all cases a valid common law marriage in a state that recognizes them gives identical legal rights and responsibilities as a ceremonial marriage. Also, all U.S. states will recognize as married a couple that entered into a valid common law marriage in a state where they are permitted.

That being said, I think that pure common law marriage is a dangerous thing to permit in modern U.S. society. Marriage is a very important legal relationship in today’s society, and there shouldn’t be ambiguity about whether people are married or not. (I don’t have a problem with permitting non-ceremonial marriages where the participants comply with marriage licensing laws).

The problem that I see with common law marriage is that it is all too frequently invoked in the context of a serious dispute. One party will claim that there is a valid marriage and the other will claim there isn’t, and you can almost always figure out which party is making which claim by seeing how the money or property will be distributed in either case. It’s essentially an invitiation to litigation – the worst kind of litigation, brutal fights over personal relationships.

Permitting common law marriage in some states and prohibiting it in others also makes for some ugly cases. Perhaps the most famous is the case where (if I recall the details correctly) actor William Hurt’s girlfriend claimed that she was entitled to a large property settlement because a common law marriage occured during the period that they were living together while he was filming a movie in South Carolina, a state that permits common law marriages. But I’ve read New York cases where the children from first marriages of a deceased couple made competing claims over the estates depending on whether a common law marriage occurred during the few short weekend vacations the couple made to the Poconos in Pennsylvania.

Then you get situations like PictsiePat’s sister-in-law, where people may expect to be obtain marriage rights by an extended period of cohabitiation. The most annoying marriage myth that I hear repeatedely is that “if you live together for [some number] of years, you’re married.” That’s simply not true in any common law marriage jusrisdiction, because the law requires that parties have a present intent to actually be married and there’s no minimum time of cohabitation.

The vast majority of marriges occur when the parties obtain a license and have a ceremony. It seems to me that there a vanishingly rare number of instances where parties that actually believe and intend that they are married (and not that they will be getting married some time in the future) neglect to go down to the couthouse to get a license. Otherwise, I think that common llaw marriage is an invitiation for confusion and abuse.

13

Good post, Billdo. So I did err in expecting the requirements for a common-law marriage not to vary from state to state. Sorry, scotandrsn.

14

OP checking in here.
My problem with common-law marriage is that it seems to me that it’s a way of trying to obtain the benefits of a legal entity without doing what is necessary to obtain that legal entity. It would be somewhere between a person who has never bothered to register to vote walking up to a polling place and saying, “Hello. I’m going to vote.” and a resident alien walking up to that same polling place and saying, “Hello. I’ve never bothered to become a U.S. citizen and I am going to vote.” I say “between” because, having done both, the former takes minimal time, expense (a postage stamp is an expense), and hassle, while the latter takes a great deal of time and hassle and more expense (you pay a fee to become a citizen).

nocturnal_tick wrote:

At the risk of sounding harsh, I suppose my answer to this is that if those people are unwilling to do what is necessary to obtain those rights, then yes, they do deserve to be treated without those rights.

Let me throw out another example. Let’s say I don’t believe in carrying auto insurance because I believe insurance is a scam designed to make insurance companies as rich as possible while providing as little benefit as possible. Pennsylvania requires that all vehicles must be insured. If I’m stopped for speeding or even in an auto accident, should I be fined because I chose not to carry auto insurance?

Again, I am old-fashioned about marriage and, unfashionable and out of step though it may be, I do hold it sacred. I’d also like to point out that money was involved in the case referred to in the newspaper article, only it was a corporation which didn’t want to pay money they didn’t think they had to.

CJ

15

You’re throwing my argument totally out of proportion. Insurance is a totally different concept to marriage. A person does not refuse insurance because, like marriage, they would feel obligated to maintain a permanent deal. While marriage is a personal endeavor, insurance is there to protect other individuals other than yourself. If you are in a car accident, and you are at fault, it is your responsibility to recompense those involved. That is the purpose of insurance.

If you want another example, let’s say I am a long-lasting customer of a particular store. Even though I do not wish to join a loyalty scheme for benefits in the store surely I am, by my continued contribution, entitled to benefits I would not recieve without signing up. I understand I can’t get benefits but that makes me no less deserving.

In the end, I can understand that you may believe that Common Law Marriage is mainly about taking from a system you have not attributed to. In that case I agree with you but long-term couples should have rights as well. I don’t know the laws here, or there on the terms required but if a couple has placed significant effort and time in co-habiting in a good relationship they should be recognised with the same values as a coupled married for any length of time.

p.s: I just got your screenname, CJ = cEE-j = Siege

16

The thing is, common law marriage is a fully recognized way to obtain the legal entity of marriage. If you and your boyfriend want to be married, there are two ways to do it in Pennsylvania: One way is to go to the courthouse, get a license, find a preacher or judge and have a ceremony. The other is to agree with each other that you are now married and live together publically as husband and wife. Both are equally valid and convey the same rights and responsibilities.

If you go the common law route, and your life proceeds without any dispute over your marital status, all is fine. Indeed, there is almost no ocassion where a person has to prove their marital status, by marriage certificate or otherwise, unless there is a dispute over the validity of the marriage.

It’s only where there is a fight over marital status or rights that common law marriage becomes a problem. But boy can those fights get ugly. Most commonly they are fights after the death of one of the putative spouses over inheritance or survivorship rights or fights on the dissolution of the relationship over whether one putative spouse is entitled to a divorce distribution.

Again, my view is that getting the certificate isn’t that hard and should be required to minimize these types of disputes. In the earlier era when legal formalities and non-marital cohabitiation were both less common, I can understand why common law marriage was a useful legal device to give the protections of marriage to people who lived as a married couple but did not formalize it. Today, I feel it does more harm than good.

17

Wait a minute … how can a common-law marriage be “contracted”? Do they mean an oral contract here? Don’t you have to live together for some minimal length of time to have a shot at being considered common-law-married?

18

Not necessarily. Cohabitation may or may not be a requirement in whichever jurisdiction you’re in; usually, the only requirement is that both parties share an express desire to be a married couple, and consider themselves so.

Like most things which were once handled solely at common law, CL marriage has all but disappeared. According to this site, only Alabama, Colorado, District of Columbia, Iowa, Kansas, Montana, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, and Utah still permit CL marriage. Georgia, Idaho, New Hampshire, and Ohio provide limited CLM rights.

Colorado and Alabama have no minimum cohabitation requirement; I’m too sleepy to look up the others.

19

Marriage has always been considered a contract. For example, New York Domestic Relations Law Section 10 provides: “Marriage, so far as its validity in law is concerned, continues to be a civil contract, to which the consent of parties capable in law of making a contract is essential.”
Marriages are always contracted as an oral contract. In a ceremonial marriage, the ceremony almost always involves the verbal exchange of marriage vows, which are ususally considered when the marriage occurs. In fact, in New York, the verbal exchange of vows is practically the only requirement for a marriage ceremony (though that requirement may be dispensed with if the ceremony is done in accordance with the mode of performing marriages of a particular denomination), as follows:

In common law marriage jurisdictions, the common law marrage may likewise be contracted verbally between the parties.