Wow. It took me a few readings to understand it too. What I meant is: “(You say) she would aruge that he didn’t meant it” (But, I believe that) she wouldn’t argue that he didn’t mean it." (It being the desire to marry).
This is the sort to technicality that I love to argue about, but it doesn’t matter and I’m not sure we’re getting anywhere.
But, I think she needs to argue more than “he put himself out as married to her” but also that he actually intended to be married to her. Saying that he was lying about intending to solemnize it undermines the claim that he intended to already be married (indeed, even talking about solemnization tends to suggest that they did not intend to already be married).
In this case, she knows she’s not married to him (I think). He’s promsing to do the things that make it a legal marriage and lying. In a CLM regime, you need to show that he intended to make it a legal marriage (and meant it). The solemnization requirement is meaningless, true, but the key claim is the fraudulent promise to marry. That can’t be consistent with an “already married” claim.
Put it this way, if I were a judge and she came in (in a CLM state) and say the fraudulently offered to marry her and she relied on it, I would have trouble concluding that he had manifested intent to already be married to her.
But in a CLM state, there’d be nothing to rely on there: the “fraud” would be meaningless. He might have done exactly the same thing, but nobody would care about it in a CLM state: they’d be considered married whether or not he intended to formalize the ceremony at some point, so there’d be division of property happening per divorce.
That, I think, was the attorney’s point in saying that CLM would make it easier: in CLM, you wouldn’t have to read his state of mind in proposing while cheating. Without CLM, you have to do that.
I get what you’re saying, and maybe you’re right. But you’d still need to read his state of mind as to the nature of the relationship. If he did the exact same thing, I think we would care, because it would be evidence of an intention not to be married (and, really, I think breaks down the same way because I think we’re back into the “breach of promise to marry” argument).
I’m sort of going under the understanding that under CLM, you don’t really read state of mind so much as you read public declarations. The fraud ruling requires state of mind, which is as I said why I’m not entirely comfortable with it.
But yeah–to the extent that he deliberately deceived her in an effort to harm her materially, I’d say he’s liable, and that’s apart from the liability he ought to face during a divorce to share equitably the fruits of their decade-long relationship.
Part of the complication is that, if I’m right as to his motive for fraud (i.e., to avoid owing her anything in a divorce, while still keeping her around for the relationship stuff), that’s a motive that would disappear under CLM, so the facts likely wouldn’t be the same in those circumstances. We’d have to imagine a different motive–say, a hatred of the gummint’s involvement in marriage–which is pretty unlikely and less actionable.
BTW, thanks for your clarification above on what you meant–I hadn’t read the “You say” as a key part of the sentence and was mightily confused :).
I disagree with this. An attorney when drafting a pleading will cite different facts from what happened. I don’t think that he is shifting the facts, I think that he is presenting those facts that are relevant to his claim.
Cohabitation isn’t a bar to this matter. Like the Court here states the statute is only a bar when the object of the contract is illegal and immoral. To find that the defense applies, you would have to find that marriage itself is immoral. Good luck convincing a judge to go along with that.
I think that Left Hand or Dorkness is correct. As I understand common law marriage, state of mind really isn’t an issue. In the District of Columbia* "to prove such a relationship, the evidence must show “that the parties cohabited as husband and wife in good faith, that is, that the cohabitation followed an express mutual agreement to be husband and wife.” United States Fidelity & Guaranty Co. v. Britton, 106 U.S. App.D.C. 58, 61, 269 F.2d 249, 252 (1959). That agreement, moreover, must be "in words of the present tense . . . . " Id. at 60, 269 F.2d at 251; see McCoy v. District of Columbia, 256 A.2d 908, 910 (D.C. 1969)."East v. East, 536 A.2d 1103 (DC, 1988)
Under such a regime, he would be married, and even if the intent to defraud her were present, it wouldn’t matter because they would be married.
I picked DC, because I already know that they have common law marriage, and I had the cite relatively handy.
I’ve bolded what I think is the key “state of mind” language. A quick Google Scholar search (will all its credibility) suggests that CLM in Georgia required: “(1) The parties must be able to contract, (2) there must be an actual contract, and (3) there must be consummation according to law.” Brown v. Brown, 215 S.E. 2d 671, 301 (1975). “The agreement on which a common law marriage is founded must contain a mutual intent to be married in praesenti, not a present intent to marry in the future.” Hubbard v. State, 244 S.E.2d 639, 715 (1978). (Hubbard dealt with a couple that held themselves out as married, but still intended to “get married,” which caused the court to find no common law marriage).
So, it looks to me like “public declaration” is not sufficient, especially there is no agreement between the parties that they are married (although, Brown dealt with a woman who also wanted a marriage ceremony and found a CLM, so a desire for solemnization isn’t a bar).
I think that, even if they held themselves out as married, if the evidence suggested that he did not intend to be married (indicated by things like promising to marry her in the future), then there would be no marriage. If we agree with Left Hand or Dorkness (and I’m almost certain this is correct) that the point of this was to keep her around but not to wind up with the legal consquences of marriage (when he tired of her), then I think that’s pretty strong evidence that there is no actual agreement to be married in the present.
I see what you’re saying. I think it’s possible to disagree with Cooper’s attorney in good faith. I don’t, however, think it’s entirely clear that if a couple holds themselves out as married–as the appeal mentions–it’s possible for this to be fraud, inasmuch as this “express mutual agreement to be husband and wife” exists. It’s unnecessary to bring fraud into it when the express agreement itself suffices.
Moving away from the strict legal understanding, it seems easier to treat it as an actual contract once said, rather than bringing fraud into the proceedings. I’m thinking of how oral contracts ought to be organized otherwise.
Imagine a different oral contract: you and I agree that you’ll help me sell my oranges, and when we’re done, selling oranges, I’ll give you a third of the money and split the remaining oranges with you. When we’re done, I say, “Nah, I changed my mind, I don’t want to give you anything.” It seems to me much more efficient for the court to say, too bad, you gotta honor your agreement, rather than bringing me up on charges of fraud and trying to pinpoint the exact moment at which I decided to change the deal.
Same thing here. If we’re talking CLM, and a couple both declare that they’re husband and wife (and by implication with all that entails, including divorce law), and then they split up, and the husband says, “Nah, I changed my mind, I didn’t really ever consider us married,” it seems much more efficient for the court to say, too bad, you gotta honor your agreement, rather than bringing him up on charges of fraud and trying to pinpoint the exact moment at which the husband decided to change the deal.