Talk:Common-law marriage in the United States

What is common-law marriage?
This article spent a great deal of text describing which state allow common-law marriage, which state don't. However, it does not define common-law marriage. So what is it? — Preceding unsigned comment added by 96.234.240.14 (talk) 17:52, 21 February 2014 (UTC)


 * This article discusses common law marriage in the United States. There is another article on common-law marriage itself (including a definition) that is linked to in the first sentence of this article. Zuzie3 (talk) 03:11, 15 July 2014 (UTC)


 * This fundamental question appears to remain unanswered. We need (a) legal definition(s) for the United States.  The text seems to suggest that the legal definition necessarily involves a legal contract between the partners, but this is never stated explicitly.   If true, it should be stated, together with a summary of the legal requirements for such contracts to represent "common-law marriages".  For example, are there standard forms to fill out?  If so, what sort of information do they request?  Layzeeboi (talk) 22:11, 26 January 2015 (UTC)

Iowa
Should there be a section on the impact to same-sex couples of Iowa's legalization of same-sex marriage? How does this newly-recognized right interact with common-law marriage statues in Iowa? —Preceding unsigned comment added by Emathias (talk • contribs) 19:42, 12 August 2010 (UTC)

Texas
Is it worth noting that Texas accidentally banned all marriage?--70.103.90.123 (talk) 09:34, 5 January 2010 (UTC)

Question on Washington
I found this text here:


 * While common law marriage doesn't exist in Washington, if you live together with someone in a stable, "marital-like" relationship for a period of time, you may wind up having to split some of the assets you acquired during the time you were together. There is no exact formula for deciding what's a "marital-like" relationship, but courts consider:


 * Whether you lived together continuously and for how long
 * The purpose of the relationship
 * Whether or not you pooled your resources and energy for joint projects
 * The intent of each of you in the relationship


 * Once a court decides that you were indeed in a "marital-like" relationship, the court will look at the interest that each of you had in the property you both acquired while in the relationship and make a joint and equitable distribution of all the property. If you have children together, the court will decide on a parenting plan and award child support just as if you had been married.

This sounds like the concept of putative marriage which is similar but not identical. Ohwilleke (talk) 23:23, 25 April 2011 (UTC)

Is this accurate? If so I think it would be useful to mention here which states honor "marital-like" relationships. Dcoetzee 01:06, 24 February 2009 (UTC)


 * It reads to me that for all practical purposes that's a common law marriage. It may be not just for appearances to the public that they don't call it a marriage though.  They're basically saying, "you can call it whatever you want, but your fortunes are being brought together".  (This may be preferable to the State for tax purposes also, since it's not unheard of for people to not license their marriage for the purposes of tax evasion.) 68.49.138.170 (talk) 17:54, 21 March 2009 (UTC)

Virginia
Virginia is listed as a state that "never permitted common-law marriages". Then why was I taught about common law marriages in my paralegal's course on marriages and divorces, not as a kind of marriage that would not be annulled if carried over from other states (as it is in most of the Union), but as a marriage that could be entered into in this state? I'm certain I'm not imagining this. 68.49.138.170 (talk) 18:27, 21 March 2009 (UTC)

Second paragraph of the "Availability by state" chapter
(State really should be capitalized as a proper noun, and part of a title! Although I'm less sure of "by".  It's a preposition rather than an article of speech.  Right?)  Common law marriages may in theory be difficult to get out of. However, since a couple need not license their marriage with the state (not the proper noun version), nor even have it witnessed or notarized by anyone in particular, it can quickly become a case of his/her word against her's/his'. Inversely there's the potential for a team of conspirators to produce perjurous affidavits stating to have witnessed a man, or a woman, to have consented to, or declared to have entered into, a common law marriage, say for purposes of a shotgun wedding, or gold digging. 68.49.138.170 (talk) 18:27, 21 March 2009 (UTC)

Indiana
"A marriage is void if the marriage is a common law marriage that was entered into after January 1, 1958." Indiana Code IC 31-11-8-5

I have removed this from the "Requirements by state" section because it never should have been there in the first place, so this is just a note to preserve the reference URL. --Jonrock (talk) 19:51, 12 April 2010 (UTC)

Common-law validity
It is my understanding that common law marriages are valid even if they aren't recognized. See http://www.originalintent.org/edu/marriage.php —Preceding unsigned comment added by 76.176.169.28 (talk) 02:51, 31 July 2010 (UTC)

The source cited is a hetrodox statement of American law. In other words, it does not reflect statutory or court created law. It is an ideological statement of what the law should be, rather than a statement of the law as it exists today. Ohwilleke (talk) 23:26, 25 April 2011 (UTC)

California
The article states that common law marriages have not been recognized in California since 1895, and in the following paragraph states that common law marriages were never recognized in California. Could someone clarify this please? Floribr1 (talk) 14:42, 9 August 2011 (UTC)
 * I noticed that too. I found that the legislature has a law that sounds very much like it may in fact recognize common-law marriage. This is Family Code, Section 425 (which took about 2 minutes to find). It states (my feelings below the statement):
 * If no record of the solemnization of a California marriage previously contracted under this division for that marriage is known to exist, the parties may purchase a License and Certificate of Declaration of Marriage from the county clerk in the parties’ county of residence one year or more from the date of the marriage . The license and certificate shall be returned to the county recorder of the county in which the license was issued.
 * This really does sound like a common-law marriage to me. It just requires that the couple be co-habitants for at least a year, if I'm reading that right. I'm not a lawyer so I very well could be reading it wrong, which is why I won't add it to the article, for now. I'll let others take a look and see what they think. MagnoliaSouth (talk) 17:16, 15 November 2018 (UTC)

Inconsistent information re: New Mexico
The article lists New Mexico both among the states where common law marriage *is* recognized and the states where it is *no longer* recognized:

"Common-law marriage can still be contracted in eleven states (Alabama, Colorado, Iowa, Kansas, Montana, New Hampshire (posthumously), New Mexico, Rhode Island, South Carolina, Texas, and Utah) and in the District of Columbia."

"Common-law marriages can no longer be contracted in the following states, as of the dates given: Alaska (1917), Arizona (1913), California (1895), Florida (1968), Georgia (1997), Hawaii (1920), Idaho (1996), Illinois (1905), Indiana (1958), Kentucky (1852), Maine (1652, when it became part of Massachusetts; then a state, 1820), Massachusetts (1646), Michigan (1957), Minnesota (1941), Mississippi (1956), Missouri (1921), Nebraska (1923), Nevada (1943), New Mexico (1860), New Jersey (1939), New York (1933, also 1902–1908), North Dakota (1890), Ohio (1991), Oklahoma (Nov. 2010), Pennsylvania (2005), South Dakota (1959), and Wisconsin (1917)."

142.167.247.6 (talk) 16:33, 14 December 2011 (UTC)

The "misinterpretation" of common-law marriage
I've commented on some seeming contradictions between this and a couple of other articles here. Input welcome on how best to reconcile these. 84.203.32.187 (talk) 02:38, 23 January 2014 (UTC)

Oklahoma abolition
I just injected what amounts to original research into the footnotes. Here's the relevant text from SB 1977, which in 2010 abolished common law marriage in Oklahoma. (Background: In both 1994 and 1998, the Oklahoma legislature passed laws which apparently some legislators thought would ban common law marriage.  Some judges disagreed each time, and frankly, from what I can see of the laws in question, I think the legislators were smoking something - but I don't think I've seen all of the 1998 law, and I'm quite sure I haven't seen all of the 1994 one.  Anyway, in 2010 they decided to be as emphatic as they possibly could, to shut the judges up.)

"On and after November 1, 2010, a common-law marriage in this state or any other state shall not be recognized as a valid form of marriage in Oklahoma; provided, however, any common-law marriage recognized as valid by a court of competent jurisdiction in this state or any other state prior to November 1, 2010, shall continue to be recognized as valid in this state."

There are two ways to read this. Read straight, it has the following consequences:

1) All common law marriages that happened to come to a court's attention before 11/1/2010 are recognised in Oklahoma.

2) No common law marriages that managed *not* to come to a court's attention before 11/1/2010 are recognised in Oklahoma, whether or not they involve Oklahoma residents.

This latter is not only punitive to ordinary Oklahoma citizens who never thought they needed court validation of their marriages but have the bad luck to die 11/2/2010, but also to similar citizens of Iowa. I'm imagining the catastrophe in probate court if such Iowans own Oklahoma property: Iowa says they were married, but Oklahoma insists they weren't.  Full faith and credit legal action, here we come.

Alternatively, you can insert commas as follows:

"however, any common-law marriage*,* recognized as valid by a court of competent jurisdiction in this state or any other state*,* prior to November 1, 2010"

Then it has different consequences:

1) Oklahoma residents who believe any of the legal sites still claiming Oklahoma recognises common law marriages are out of luck.

2) Non-Oklahoma residents who common law marry perfectly legally in one of the remaining jurisdictions, in 2011 and later, are too.

So under this scenario, it'll probably take a few decades before that Iowa-Oklahoma probate court clash happens.

Anyway, in my many web searches related to common law marriage in Oklahoma, I found nobody at all pointing these things out. So I'm not only injecting original research, I'm doing it in hopes of getting those legislators to fix this mess, i.e. with a political purpose. Shame on me, but then, I'm not a Wikipedian...

Joe Bernstein joe@sfbooks.com  not a registered Wikipedian; main author of the "history" section of "State income tax", which is more or less why I care about this.

128.95.223.129 (talk) 05:21, 13 February 2014 (UTC)

OK, so now I've uninjected that original research. Egg all over my face. I haven't found any record of the vote in the OK Senate - the bill definitely passed the Judiciary Committee - but SB 1977 did not become law, as evidenced both positively (the OK Tax Commission and Department of Corrections have both left unrevised pages that represent common law marriage as legal in OK) and negatively (there's nothing banning common law marriage in the OK Statutes).

I do not, however, have the equipment to say what common law marriage in OK currently requires. Two versions cut and pasted from what I hope are more authoritative sources than me:

The US Department of Labor summarises the situation as of April 2010 as follows (blithely ignorant of all previous alleged abolitions):

"Oklahoma

"Oklahoma recognizes common-law marriages established within its borders. See Standefer v. Standefer, 26 P.3d 104, 107 (Okla. 2001); Davis v. State, 70 (Okla. Crim. App. 2004). The elements necessary to establish a common-law marriage in Oklahoma are: (1) an actual and mutual agreement between the spouses to be husband and wife; (2) a permanent relationship as man and wife; (3) an exclusive relationship (which may be proved by cohabitation) as man and wife; and (4) the parties to the marriage must hold themselves out publicly as husband and wife. Stinchcomb v. Stinchcomb, 674 P.2d 26, 28-29 (Okla. 1983); Estate of Phifer, 629 P.2d 808, 809 (Okla. App. Ct. 1981). Thus, a common-law marriage is established if competent parties enter the relationship by mutual agreement, exclusive of all others, and consummate the arrangement by cohabitation and open assumption of marital duties. Mueggenborg v. Walling, 836 P.2d 112, 113 (Okla. 1992). Open and notorious cohabitation is evidence of a marriage agreement, other elements being present, while lack of such open cohabitation may be evidence tending to discredit the alleged agreement, thus casting upon the alleging party a greater burden in the actual proof of the agreement. Mueggenborg, 836 P.2d at 113 n.2. The person seeking to establish the existence of a common-law marriage in Oklahoma has the burden to show its existence by clear and convincing evidence. Standefer, 26 P.3d at 107. However, the relationship may be proved by both direct and circumstantial evidence. Maxfield v. Maxfield, 258 P.2d 915, 921 (1953)." http://www.dol.gov/owcp/energy/regs/compliance/PolicyandProcedures/CommonLaw_Marriage.pdf

The Oklahoma Department of Corrections currently advises inmates as follows, in a document dated 2012:

"Common law marriage is defined as: “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 a husband and wife, and assumption of marital duties and obligations.”" http://www.ok.gov/doc/documents/op090128.pdf

Anyway, I wanted to delete this section, but might as well leave up the evidence of my incompetence and make it do something useful instead.

Joe Bernstein  joe@sfbooks.com   not a registered Wikipedian

128.95.223.129 (talk) 23:30, 19 February 2014 (UTC)

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Widely-cited reliable source proposed as model for improved historic background on rationales for various positions on common law marriage
This article might be improved if modeled on a helpful outline I found when searching for an answer to a question posed April 5 2018 on the Humanities Reference Desk {archived Q&A). I've added my source to a new Further reading section and respectfully suggest interested editors consider this widely-cited source (over 150 cites according to Google Scholar and some 1,200 downloads from Cornell Law archive) as a potential model for a more informative article. Ignore the seemingly polemic title - this is a Cornell University Law School professor writing crisply and her historic reconstruction of the various rationales for the recognition, nonrecognition and abolishment of common law marriage in the US from colonial days to the end of the twentieth century seems masterful.

Importantly, these are some of the "why" and "when" questions people want answered; witness Reference Desk query.

I. An Introduction to the Institution of Common Law Marriage
 * A. The Elements of Common Law Marriage
 * B. Conﬂicts of Law Concerning Common Law Marriage

II. The Initial Recognition or Nonrecognition of Common Law Marriage in the United States
 * A. The Origins of Common Law Marriage
 * B. The Original Settlements
 * C. Expansion Beyond the Original Colonies
 * 1. Frontier Conditions
 * 2. The Legal Tradition of the Napoleonic Code
 * 3. States with a Spanish Colonial Tradition
 * a. Marriage Law in the Spanish Colonies
 * b. Indigenous Traditions and the Spanish Empire
 * 4. Native American Tradition

III. The Abolition of Common Law Marriage in Many U.S. Jurisdictions: 1875-1917
 * A. The Closing of the Frontier, the Industrial Revolution, and Concerns About Fraudulent Claims
 * B. The Protection of Marriage and the Family
 * C. Racism and Eugenics

IV. The Abolition of Common Law Marriage Since 1920
 * A. Concern with Fraudulent Claims
 * B. Threats to the Institution of Marriage
 * C. Racism and Class Bias
 * D. Concerns About Government Beneﬁts
 * E. A New Concern: Celebrity Common Law Divorce Suits
 * F. Postscript: The Strange Case of Utah

V. The Impact of Nonrecognition of Common Law Marriage
 * A. Impact by Gender
 * 1. The Disparate Negative Impact on Women
 * 2. The Legal Issues Affected
 * a. Common Law Marriage and Divorce Remedies
 * b. Common Law Marriage and Inheritance
 * c. Social Security Survivors’ Beneﬁts and Workers’ Compensation Death Beneﬁts
 * d. Actions for Wrongful Death and Loss of Consortium
 * B. Impact by Class
 * C. Impact by Race

VI. Alternatives to Common Law Marriage
 * A. Home-Grown Escape Routes
 * 1. Variants on Common Law Marriage
 * 2. Marvin-Like Remedies for Cohabitants
 * 3. Piecemeal Approaches, Legislative and Judicial
 * B. A Comparative Approach: What Have Other Countries Done?

Conclusion

From: Includes detailed history of rationales for recognition, nonrecognition and abolishment of common law marriage in the United States from colonial days through the twentieth century.

I hope this constructive suggestion is taken in the spirit it is offered - helpful. -- Paulscrawl (talk) 07:38, 8 April 2018 (UTC)

Why is it that only *some* states recognize out-of-state common-law marriages?
The article states:

"These 13 states have never permitted domestic common law marriage; but like all 50 states and the District of Columbia, they recognise all validly contracted out-of-state marriages, including validly contracted common law marriages."

I am not a lawyer, but doesn't the Full Faith and Credit clause of the Constitution (Article IV, Section 1), which reads:


 * "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof"

automatically accord marital status in one state to any couple married in another state?

Would that not mean that all states must recognize a common-law marriage that was originally legally certified in another state?