Ohio Common Law Marriage
Though the term "common law" directly refers to our American legislative system (as opposed to civil law), the most common (pun intended) law of the land is the tricky vestige of matrimonial jurisprudence known as common law marriage.
Common law marriage is a type of informal marriage, meaning the union was contracted without a ceremonial marriage. A common law marriage is formed by agreement of the parties, followed by cohabitation for the statutory duration and representation to others that they are married.
Roughly half the states have eliminated common law marriages as a legal concept, replacing it with declarations of domestic partnership or civil unions. In some of the states that do still recognize common law marriages, like Ohio, the law isn’t cut and dry. In theory, almost any type of agreement can constitute a common law marriage. But because Ohio doesn’t have a bright line test for the creation of a common law marriage, contractual terms are subordinate to dissolution considerations. So when parties enter into an express agreement, and later separate, trial courts apply a totality of the circumstances analysis to impart equity and avoid unfairness.
The requirement of cohabitation in common law marriage is satisfied by physical presence in the same residence for a certain period of time, even if it’s just a single night . The requirement of representing the relationship as a marriage to others is fundamental to common law marriage, arising from social customs rooted in the English ecclesiastical law of the marriage requirement of "consent, cohabitation (sexual), and reputation (holding out)" as opposed to the civil law requirement of "consent, intention to marry, and status". That said, the Ohio Supreme Court has held the reputation requirement is too far removed from the elements of marriage under the legislature’s definition of marriage.
Historically, the rule of thumb for common law marriage was stated as seven years of duration, but no bright line period was ever enacted. In Ohio, where there is no definitive statutory duration for common law marriage, the courts have variously considered three years and five years to be a reasonable length of time.
Though the trend has been towards statutory abolition of common law marriage, its tradition remains. Millett v. Millett by the Wyoming Supreme Court is recognized to be the first decision stating that applied to all states, and therefore created a common law. Lord Hardwicke, the Lord Chancellor of England, is credited with the invention.
Ohio’s Stance on Common Law Marriage
Historically, Ohio has had a long-standing position on common law marriage. To this day, Ohio does not recognize common law marriage if the parties began cohabitating and holding themselves out as spouses on or after October 10, 1991. The prohibition of common law marriage in Ohio finds its source in R.C. 3105.12, which states: ‘No common law marriage is valid in Ohio on and after October 10, 1991. No person shall assert the validity of a purported common law marriage by any action or proceeding filed on or after that date. Nothing in this section invalidates any common law marriage contracted or entered into prior to October 10, 1991.’ In the immediate aftermath of the codification of the prohibition of common law marriage in Ohio, there were a number of cases brought raising questions, generally following a predictable pattern. A claim would be made by one or both parties asserting a common law marriage, and asking the court to recognize it. The party claiming the common law marriage would testify that it existed, and then typically would rely on the Supreme Court case of In Re Estate of Zito (1980), 62 Ohio St.2d 429, 406 N.E.2d 1372, at paragraph two of the syllabus: ‘While the elements of a common-law marriage are clear from the case law, the questions of proof and the burden of proof require a careful analysis. Obviously, the one who asserts a common-law marriage has the burden of proving, by clear and convincing evidence, each of the elements of such a marriage. This Court has suggested in half a dozen cases that a marriage is in derogation of a statute unless lawfully contracted as prescribed by statute, and that a common-law marriage, in the same degree, is in Technically, the contrary to a statute, and this Court has said that it must be void. However, in the interest of the parties to the marriage and their children, where the marriage is established by clear and convincing evidence to have been lawfully entered into as a common-law marriage, we hold such a marriage based upon those elements of proof is not void in this strict sense and may be so established as an existing relationship before a court of competent jurisdiction of a subsequent controversy of the parties.’ The trial courts in Ohio would follow this reasoning, and find that the burden of proof was on the party asserting the existence of the common law marriage, and based upon a combination of judicial estoppel and reversal of the burden of proof, would find that the party who claimed the existence of the marriage had not established all of the elements of a common law marriage. However, in the 2007 Supreme Court case of Radcliff v. Radcliff, 114 Ohio St.3d 434, 2007-Ohio-4024, the Court shifted the burden of proof in the case of a common law marriage entered into prior to October 10, 1991. The Court found that in order to establish a common law marriage, a party must establish by a preponderance of the evidence that: 1) There was an express or implied agreement to marry; and 2) The cohabitation was continuous; and 3) There was a reputation in the community of being married. The Court in Radcliff overturned established common law precedent in Ohio to follow the minority view on the burden of proof in a common law marriage. While Radcliff itself involved a marriage entered into before the statute took effect, the Court’s reasoning would apply to instances of alleged marriages after the statute in Ohio likely as persuasive authority when the Western District Court decided their recent case.
Duration Myth No. 1: It Takes X Number of Years for Common Law Marriage to Exist
The Duration Myth: The misconception that a couple automatically becomes married under Ohio common law after living together for a certain period of time is one often heard by practitioners in Ohio. This myth is rooted in the belief that couples who reside together for a specific number of years satisfy a tiered system of requirements. Therefore, a couple who are married under common law have met each of the elements for a fixed number of years, such as three, five or seven, as described in Ohio juvenile cases at the behest of the mother of a child born out of wedlock. (Judgement Entry, In the Matter of: Michelle L. Myers aka Michelle M. Myers aka Michelle S. Myers.) This five-year requirement is also reflected in a recent common case report from the Ohio appeals court. Myers v. Furst School for Fishermen, Inc. (1998) 127 Ohio App.3d 324, 712 N.E.2d 783. In this case, the Court interpreted a case involving a divorce where a common law marriage was claimed as a way to get around the one year residency requirement for a divorce in Ohio. However, though the court did find a marriage existed under common law, the couple would still be required to satisfy the one year residency requirement. At the end of the day the length of time spent together on its own will not rise to the level of proof needed to establish a common law marriage in Ohio. The courts have emphasized that they will not give undue credence to the forever married couple, living in a manner consistent with that of married couples, and owning a home and other property together.
Longevity of a Marriage and its Legal History Precede
The face of common law marriage in Ohio has not remained constant over the years, and changes to Ohio’s legal landscape have impacted how common law marriages are recognized. Notably, these changes may not necessarily apply to a couple who entered into marriage before the change was made. The question of whether a valid marriage exists or whether a valid divorce occurred in pre-1991 cases must be analyzed under the law as it existed at the time of the marriage or divorce. However, it is important to recognize how legislative and judicial decisions have ultimately shaped the common law marriage debate in Ohio.
Up until a 2009 state court opinion definitively closed the door to common law marriage for new marriages, Ohio had a long history of recognizing common law marriages. According to R.C. 3105.12 and 3105.15, a common law marriage that was entered into before October 10, 1991, when Ohio’s statutory prohibition on new common law marriages took effect, will continue to be recognized in Ohio. Thus, if you and your spouse entered into such a marriage prior to that date, you should be guided by prior case law addressing these unions.
This earlier case law is very supportive of a common law marriage in Ohio. In fact, in Wilson v. Gorman (1852) 1 Ohio St 193, in which the Supreme Court of Ohio found Gorman to be the "lawful wife of Wilson," the Court acknowledged in its reasoning that eight of the sixteen other states at the time had already abolished common law marriage:
"[T]he law of Ohio would allow marriage by contract, precisely as in Pennsylvania, if it had not been altered by the statute of 9th March 1824, entitled ‘An act to prevent the licentious practice of entering into the marriage . . . .’ This statute declares, ‘that no persons or class of persons shall hereafter be capable of contracting matrimony within this state, without complying with the provisions of this act.’ No class was excepted. The law was general, and embraced all persons, and all classes. The Legislature contemplated the proper means for the regulation of contract, and declared that none should be contracted except in conformity to the law. The provision of the Constitution, which prohibits polygamy and bigamy, was not intended as an exception to this prohibition; nor do the exceptions of the statute of 1824 admit such restrictions as will restrain those classes from contracting marriage, where the right otherwise exists.
As a general rule, where statutes provide for the solemnization of marriage, but an exception is made from the provisions of the acts to single out any particular class, this is considered an implied prohibition against marriage of the class selected. It is said, generally, that our laws making null and void contracts of marriage not in conformity to their provisions, imply a prohibition of the contracting of marriage otherwise than as prescribed by law."
Although acknowledging that states that had eliminated common law marriage did so to protect women and children in the event of a divorce or death of their husband, the Wilson court was not persuaded by these arguments. Regarding financial considerations of a divorce, or lack thereof, the Court stated that while "[i]t may seem harsh in its operation, it has become a rule of law." Lastly, distinguishing Gorman, an earlier decision that invalidated a marriage on the grounds that it violated public policy as expressed by statutes, the Wilson court concluded that in its case, "there is no expression of a legislative intent, that a marriage, thus proved, should be invalidated."
In spite of legislative efforts to prohibit additional marriages from being recognized as common law marriages, the decision in State ex rel. Shipley v. Schaeffer (1998) 83 Ohio St 3d 582, loosened restrictions for common law marriages among those who are "otherwise qualified" to marry, by articulating a number of exceptions, such as:
Alternatives to Common Law Marriage in Ohio
For Ohio residents who are seeking to enjoy the non-legal advantages of common law marriage, there are legal alternatives to this type of relationship, which can benefit couples who otherwise would be looking forward to long wait times to celebrate their nuptials before an official following Ohio’s mandatory three-day waiting period. Often, a Domestic Partnership Agreement or Cohabitation Agreement can provide couples with the same benefits as a common law marriage and may be executed quickly and less expensively than a lengthy marriage license application process.
Imagine that two people have lived together for decades, raised children, built separate careers where they enjoyed some amount of success, were faithful to each other but never married. If one of them dies without a will in place , the remaining partner could be left in a precarious situation where he or she is forced to live out on the street because his or her deceased spouse’s family won’t recognize their decade’s long commitment to each other.
The law can and does provide protections to these types of agreements. A Domestic Partnership Agreement is a legally binding document outlining the rights, protections, and responsibilities of the couple in the absence of a valid marriage license. It discusses contraception, adoption, shared debts, shared income, insurance, will validity, arrangements concerning children, etc.
A Cohabitation Agreement is also a legally binding document that discusses many of the same areas of concern and can be enforced just like any other contract.
These types of agreements can be drawn up by your attorney or can be completed on your own with legal guidance. They are generally regarded as a binding "marriage-lite" and provide partners with many of the same protections of a common law marriage.
Couples Considering Common Law Marriage and Implications
However, the decision to allow a couple to be recognized as common law spouses, despite having never entered into a marriage – in the traditional sense – can present legal challenges as well. How will any potential divorce be divided if the State does not grant common law marriages? Are assets and investments divided equitably with no common law marriage rights to divide assets gained during the time the couple lived together? This is especially challenging for those who have acquired significant assets prior to the relationship but then "pooled" them while together.
On top of that, what happens if the couple later decides to divorce? While dividing marital assets in a common law marriage may seem to be a simple matter, this is not necessarily the case. States in which common law marriages are recognized determine which property is to be divided during divorce on a case-by-case basis. As such, it’s difficult to determine whether any specific asset will be considered "marital property" or "non-marital property."
While a common premise between states with common law marriage provisions is that any assets or property acquired during the marriage are technically owned by both spouses (known as "marital property"), it is important to note that certain states may not recognize that any assets acquired by one spouse before the marriage may still be considered marital property. Therefore, it is advised that couples consider the advice of a qualified attorney to determine how their assets should be divided – if at all – upon divorce.
An attorney can also help individuals determine whether their best interests are served by establishing a partnership agreement or some other method of asset protection. Since matters of property division can become quite complicated, it’s always best to consult the advice of an Ohio family lawyer who is experienced in handling the division of property in common law marriages.
Insights from Our Ohio Family Law Attorneys
Experts recommend that couples in Ohio who choose to live together consider entering a co-habitation agreement that clearly lays out their intent, whether children are involved, and what will happen if either of the partners terminates the relationship. For Ohio family lawyers, the issue of co-habitation agreements has been front and center. Such agreements are rising in popularity, as is the incidence of unmarried couples living together . Co-habitation agreements provide specific details about rights, responsibility, and termination of the relationship. Attorneys also recommend an "If I’m not married, I need one" approach. It’s vital for cohabitants to understand that their relationships are not protected by the laws of marriage. Rather than spend time fearing the possibility of divorce, unmarried partners should address vital issues like alternative decision-making and property ownership before they become a concern.