What happens when someone files for divorce but is unable to prove the existence of their marriage?

This is not a request for legal advice etc. etc.

What happens (espeically in a common law country) when someone files for divorce, but is unable to prove the existence or circumstances of their marriage to the satistfaction of the divorce court?


  1. person files for divorce from a “common law” marriage, but the court is not convinced of the existence of the marriage because the evidence offered does not meet the required evidentiary standard, which is all the person can provide in good faith.
  2. person files for divorce, and presents a marriage certificate from an unrecognized government.
  3. person files for divorce, but the court rules that the marriage certificate offered does not appear to be genuine (even though it is), and thus there is insufficient grounds upon which to grant a divorce decree

Is it possible to get a “conditional” divorce decree? E.g. “This court rules that if you are validly married, that marriage is hereby dissolved”

Why would you need to get divorced if you weren’t in a recognized marriage? Pragmatically speaking, a court not recognizing a marriage as valid results in the same state as a court granting a divorce - two unmarried people. There may be a slight difference in the status of a divorced person and a single person, but I don’t see that as significant.

I can see a need to recognize a marriage for purposes of alimony, but the Courts are the deciding party here, if the courts don’t recognize the marriage, the only recourse is to appeal to another that might. If none do, all the way through the appeal process, then no luck and no alimony.

Depending on the how the jurisdiction allocates its judicial resources (Do the same judges that issue divorces issue annulments?, Can you plead alternatively for a divorce or annulment?)

Here is a Texas case in which one of the parties challenged a divorce decrre by claiming there was no valid common law marriage: http://www.houston-opinions.com/files/1stCoA-2008-Quinn-v-Milanizadeh-by-Higley-CLM.mht

In most cases the biggest difference between a court ruling that the marriage was invalid and issuing a divorce will be property and benefit allocation.

You can’t get a property award based on marriage if there wasn’t one, although you might get some sort of palimony-based award.

You’re probably not entitled to pension or insurance benefits if there wasn’t a valid marriage.

Stuff like that.

Interesting thing about this in this Radiolab Podcast. (Divorce info. around the 13:30 mark.) The woman filed for divorce. Her husband denied that they were ever married. She couldn’t produce a marriage certificate at the divorce proceedings, so she was out of luck. She could get no alimony/settlement from him.

In essence, in the eyes of the law, the law didn’t consider that the couple was STILL married, despite the lack of certificate, but rather that the couple had NEVER been married in the first place.

Right. In Texas, a prerequisite to getting a divorce is proving that a marriage exists; no marriage, no divorce. You can prove up a common law marriage (or “informal marriage”) by direct or circumstantial evidence that the parties agreed to be married, held themselves out as husband and wife, and cohabitated. There must also be no impediments to the marriage (i.e., neither party already married), and there’s a presumption that there was no agreement if the action to establish the marriage isn’t intiated within two years of the cohabitation. If you can’t prove the validity of the common law marriage, you’re out of luck getting a divorce.

On the plus side, you can immediately (re)marry the person of your dreams!

You hit on the biggest reason yourself - money money money. In Texas we don’t have alimony (limited spousal support, but not alimony), but we’re a community property state. If you own property together, house, cars, cash, a winning lottery ticket, etc., it behooves one party to file for divorce if the other party tries to take off with it.

As always, it depends on the jurisdiction. For example, under The Family Property Act of Saskatchewan, you can be a “spouse” for the purpose of claiming family property, even if the marriage was not valid (but the party making the claim conducted it in good faith), or even if you weren’t married at all.

Plus, couples who live common law (which is not the same as a common law marriage in our system) can also claim pension and insurance benefits, depending on the facts of a particular case. I once was involved in a case where the deceased had left his wife, never divorced, lived common law for some years with another woman, then died. Both of the women put in claims for a survivor’s pension.

As always, none of this is legal advice, but just to comment on a matter of public interest.

I’ve never had the issue come up in all the divorces I’ve done. In my state, you plead that the parties were married on such and such date at such and such place, and even in a bitterly contested case, the other side generally admits it. In an uncontested case, one of the standard questions asked of the moving party is when and where the marriage occurred, but there is no one to challenge her testimony.

I don’t know about the legal questions regarding the actual divorce - but one might be able to pull together old income tax returns as evidence. In the example toadspittle mentions, if they’d been filing as married (even separately), the wife could have basically said “if we weren’t married, you committed tax fraud”.