A union of two people not formalized in the customary manner as prescribed by law but created by an agreement to marry followed bycohabitation.
A fundamental question in marriage is whether the union is legally recognized. This question is important because marriage affects property ownership, rights of survivorship, spousal benefits, and other marital amenities. With so much at stake, marriage has become a matter regulated by law.
In the United States, the law of marriage is reserved to the states and thus governed by state law. All states place restrictions on marriage, such as age requirements and the prohibition of intrafamilial marriage. Further, most states recognize marriage only upon completion of specified procedures. A typical statute requires a witnessed ceremony solemnized by a lawfully authorized person, submission to blood tests, and fulfillment of license requirements. However, in some states, the marital union of a man and a woman can still be achieved in the most simple, time-honored ways.
Marriage has evolved over the centuries, but some basic features have remained constant. In ancient Rome, it was accomplished by consent of the parties to live together. No forms were required, and no ceremony was necessary. This early Roman model of marriage was displaced when the Catholic Church declared in 1563 that marriages were not valid unless contracted in the presence of a priest and two witnesses. In England, under the Anglican Church, marriage by consent and cohabitation was valid until the passage of Lord Hardwicke's Act in 1753. This act instituted certain requirements for marriage, including the performance of a religious ceremony observed by witnesses.
The American colonies rejected the requirement of a religious ceremony but retained the custom of a ceremony, religious or otherwise. The ancient Roman concept of marriage by agreement and cohabitation was adopted by early American courts as valid under the common law.
In the 1800s, state legislatures began to enact laws expressly to prohibit marriage without an observed ceremony and other requirements. Common-law marriage was prohibited in a majority of jurisdictions. However, the full faith and credit clause of the U.S. Constitution requires all states that prohibit it to nonetheless recognize a common-law marriage created in a jurisdiction that allows it. U.S. Const. art. IV, § 1. Laws in all states require a common-law spouse to obtain a divorce before remarrying.
Common-law marriage is allowed in fourteen jurisdictions: Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, and the District of Columbia. The manner in which a state authorizes common-law marriage varies. Pennsylvania maintains a statute that declares that the statutory chapter covering licensed marriage does not affect the recognition of common-law marriage (23 Pa. Const. Stat. Ann. § 1103). In Georgia, the operative marriage statute simply states, "To constitute a valid marriage in this State there must be—1. Parties able to contract; 2. An actual contract; 3. Consummation according to law" (Ga. Code Ann. § 19-3-1).
Several reasons have been offered for recognizing common-law marriage. In some states, including Pennsylvania and Rhode Island, common-law marriage was originally permitted to allow for religious and social freedom. Some state legislatures have noted the private importance of marriage and assailed the insensitivity of governments purporting to regulate such a personal matter. Other states have been reluctant to require licensing and ceremony in consideration of the financial hardship such requirements impose on poor citizens.
A common-law marriage has three basic features. When a common-law marriage is challenged, proof of the following elements is critical in most jurisdictions.
- A present agreement to be married. The parties must announce to each other that they are married from that moment forward. Specific words are not mandated, but there must be evidence of an agreement to be married. Proof may consist of circumstantial evidence, including evidence that the partners have cohabitated and held themselves out to the public as being married. However, neither cohabitation nor a public holding out constitutes sufficient proof to establish the formation of a common-law marriage, either by themselves or taken together. An agreement to marry must be proved by the party asserting marriage.
- Cohabitation. The parties must actually live together in order to support a claim of common-law marriage. Whether maintenance of a separate home by one of the parties will nullify a common-law marriage is a question of fact and depends on the circumstances of the particular case.
- Public representations of marriage. The couple must consistently hold themselves out to the public as married. A married couple is expected to tell people that they are married. They should also file joint tax returns and declare their marriage on other documents, such as applications, leases, and birth certificates.
A challenge to a common-law marriage can come from a variety of sources. For example, an insurance carrier or pension provider may contest a common-law marriage when one spouse claims benefits by virtue of the marriage. Often, it is one of the purported spouses who challenges the existence of a common-law marriage.
In Flores v. Flores, 847 S.W. 2d 648 (Tex. App. Waco 1993), Peggy Ann Flores sought to prove that she had been married by common law to Albert Flores. Peggy and Albert were married in a ceremony on July 18, 1987, and divorced on March 9, 1989. They continued to live together until November 1990, when Albert moved away to live with his girlfriend, Lisa. Albert and Lisa were married on January 1, 1991.
Peggy filed for a second divorce from Albert on January 31, 1991. In the same proceeding, she applied for custody of their child, Joshua, and child support payments from Albert. The County Court, Brazos County, found that a common-law marriage had existed between Peggy and Albert following their 1989 divorce. The county court granted the second divorce and ordered custody and child support payments to Peggy. Albert appealed, arguing in part that there was insufficient evidence to support a finding both that Peggy and Albert had agreed to remarry and that Peggy and Albert had represented to others that they were married.
The Court of Appeals of Texas, Waco, agreed with Albert. The court of appeals opened its opinion by listing the important factual background. According to Peggy's testimony at the 1991 divorce proceeding, she had considered herself married to Albert after the 1989 divorce, and Albert had, on one occasion, introduced her as his wife after the 1989 divorce. Peggy's employer, Irma Ortega, testified that she did not know of the first divorce, that Albert sent gifts and affectionate notes to Peggy, and that Peggy kept a picture of Albert and Joshua at her workplace. Relatives of both Peggy and Albert testified that after the 1989 divorce, the relationship continued much as it had before.
Other testimony revealed that on a visit to a hospital after the divorce, Peggy told hospital personnel that she was single. Albert and Peggy signed a lease together that did not specify their relationship. Peggy used Albert's credit cards, and Albert paid the rent and other bills. They also maintained a joint bank account and carried on a sexual relationship.
Albert testified that Peggy had asked him to stay with her until she got "back on her feet." He also testified that he had moved in with Peggy after the 1989 divorce to help her and that he had informed Lisa that he was living with his former wife "and helping her out."
The court of appeals then addressed whether these facts sufficed to establish a common law marriage in Texas. The court said that while the facts must demonstrate cohabitation by the parties, public representations of marriage by the parties, and an agreement to be married, all three elements need not exist simultaneously for a common-law marriage to exist.
On the issue of whether the couple had agreed to be married again after the 1989 divorce, the court acknowledged that such an agreement can be inferred from cohabitation. However, the court warned that cohabitation is more common than it once was and that cohabitation evidence should be weighed more carefully than it has been in the past. After an examination of the record, the court concluded that there was no direct evidence of an agreement between Albert and Peggy to marry. The evidence showing that Albert and Peggy had lived together and shared resources did not compel a finding of an agreement to be married.
Nor did the evidence support a finding that Peggy and Albert had held themselves out as married. According to the court of appeals, one public representation of marriage did not constitute a public holding out. Other evidence offered by Peggy, such as the joint bank account, was insufficient to support public holding out, the court found. Thus, the court of appeals ultimately reversed the judgment of the county court and ordered that Peggy take nothing but child support payments from her suit.
Late Twentieth-Century Developments
During the last 15 years of the twentieth century a growing number of states, counties, and municipalities granted qualified legal recognition to unmarried "domestic partners." Known in some jurisdictions as "reciprocal beneficiaries," unmarried couples who receive legal recognition as domestic partners may be eligible for health insurance benefits, life insurance benefits, and child visitation rights. Depending on the jurisdiction, domestic partners may also be entitled to hospital visitation rights.
However, in most jurisdictions domestic partners may only inherit from their partners or their partner's family if they are specifically named in the deceased's will. A few states allow domestic partners to inherit from each other or each other's family in the absence of a will, called interstate succession. By contrast, the law of all states that recognize common-law marriage allow both parties to the common-law marriage to inherit under state intestacy laws when either spouse dies without a will.
Also unlike common-law marriages, domestic partners may not typically ask courts to settle their post-relationship property disputes. Nor may domestic partners petition courts for alimony awards, unless the partners entered a formal agreement for palimony prior to their cohabitation. Marvin v. Marvin, 18 Cal.3d 660, 557 P.2d 106, 134 Cal. Rptr. 815 (Cal. 1976). But if partners do enter a palimony agreement, they will generally be enforced, unless during the period of cohabitation the partners resided in Illinois, Georgia, and Tennessee, the three states that have expressly refused to recognize palimony agreements.
Every jurisdiction recognizing domestic partners as a legal entity has its own list of formal requirements that unmarried couples must satisfy before they will be formally recognized as domestic partners. The formal requirements in no two jurisdictions are identical. However, most jurisdictions do share many of the same core requirements.
These core requirements include that both partners must be older than 18 and unmarried, currently live together, apply together before a public official with authority to recognize them as domestic partners, and pay the related fees to be registered. To end a domestic partnership, most jurisdictions allow the couple simply to send a letter to the registrar of domestic partners. The letter must be dated and signed by both partners, and it must specifically request that the domestic partnership be terminated.
Laws in eight states and more than 100 municipalities now provide legal recognition for unmarried couples as domestic partners. This legislation often allows both opposite-sex and same-sex couples to form domestic partnerships, unlike the states that recognize common-law marriage, none of which expressly permits homosexual common-law marriages, and some of which expressly prohibit it. Pursuant to state and local domestic-partner legislation, 157 Fortune 500 companies, 3,960 private employers and unions, and 158 colleges and universities were as of mid-2003 providing benefits to domestic partners. Although no nationwide statistics exist, the 2000 census revealed almost 10,000 domestic partners were registered in St. Louis, Missouri, alone, and more than 15,000 same-sex couples were registered as domestic partners in California.
Jasper, Margaret C. 1994. Marriage and Divorce. Dobbs Ferry, N.Y.: Oceana.
Wadlington, Walter J. 1990. Domestic Relations Manual for Teachers: To Accompany Cases and Materials. 2d. ed. Westbury, N.Y.: Foundation Press.