Common Law Marriage: What is It?
Common law marriage refers to a legal marriage that is created without having a civil or religious ceremony. For example, when a couple moves in together and holds themselves out to the public as a married couple, they are considered to be "common law" married. The obligations and responsibilities of a common law marriage are the same as those of an ordinary marriage.
Historically, common law marriage developed because of a lack of access to government offices. Couples often entered into a common law marriage without intending to do so. They established a general reputation (held themselves out) to be a married couple without taking formal steps to legalize their union.
In Pennsylvania, a common law marriage is recognized if it was entered into prior to January 1, 2005, as long as certain conditions are satisfied. The couple must be at least 18 years of age and be legally capable of entering into a marriage (e.g. , both individuals must be unmarried). A common law marriage may take place when (1) the couple has the capacity to marry; and (2) there is mutual consent to enter into the marriage (usually proven through the couple’s holding themselves out to the public as married; e.g., sharing an apartment and a credit card account). Essentially, the couple must hold themselves out as a married couple and a court must find that no evidence exists showing that the common law marriage was entered into fraudulently. Additionally, a common law marriage in Pennsylvania must not violate the rule against consanguinity (marriage between closely related individuals) or bigamy.
Certain states still recognize common law marriage, including Colorado, Iowa, Montana, Nebraska, South Carolina, Texas, Utah, and Virginia. Other states recognize common law marriages that were entered into prior to a statute or court decision expressly abrogating the institution of common law marriage, such as New Hampshire, Oklahoma and Rhode Island. However, Pennsylvania and most states have abandoned the practice. In fact, Pennsylvania no longer recognizes common law marriages that are contracted on or after January 1, 2005.
Common Law Marriage in Pennsylvania
Pennsylvania does not currently allow for common law marriage contracts. The reasoning behind this is that the state believes the consequences of common law marriage are too complicated and can potentially become overly expensive to manage. The landmark case of Stoupas v. Stoupas instructed that common law marriage is invalid in the state of Pennsylvania since 1901. The Supreme Court of Pennsylvania ruled that the common law marriage provisions of the Statute of June 29, 1832, were repealed by implication and under the statute that governs the current marriage law, 23 Pa.C.S.A. § 1302.
However, common law marriages entered into prior to January 1, 2005, are recognized in the state of Pennsylvania. As a result of the 2005 ruling, if there is any confusion about the relationship between two people who were parties to a common law marriage, the relationship will be assessed under the statutory marriage law. If the relationship does not meet the requirements of the statute, then it will be presumed a common law marriage entered into before January 1, 2005.
Proof of a Common Law Marriage in Pennsylvania
To prove the existence of a common law marriage, the burden of proof is on the party who asserts such a marriage exists. In Pennsylvania, for marriages entered into prior to the 2005 abrogation of the common law marriage doctrine, establishing the formation and existence of a common law marriage required evidence on the following three elements: (1) the parties must have a mutual intent to enter into a permanent marital relationship; (2) the parties must live together as husband and wife; and (3) the parties must hold themselves out to the world at large as being married. Cohabitation is a requisite of a common law marriage. However, cohabitation alone is insufficient to establish a common law marriage. Cohabitation is required, but it is not sufficient. For example, if you live with someone and do not intend to be married, and hold yourself out to other people, organizations, institutions and/or the government as not being married and not living as husband and wife, then even if you cohabitate you will not be able to prove a common law marriage existed. For a common law marriage to exist, there must be a mutual intent to be married. Often times the parties will make a verbal declaration of a mutual intent to be married. Finally, the holding out requirement is established when a party presents him/herself to others as being married. Generally, this means presenting oneself to various organizations, institutions, offices and/or legal entities as being married. As previously noted, cohabitation is not enough.
The Effect of a Common Law Marriage In Pennsylvania
The recognition of common law marriage in Pennsylvania carries significant legal implications for couples who believe they are inside the parameters of such a union. These potential implications primarily involve property rights, inheritance and spousal support.
The following are some specific details about how property and other legal issues may affect a couple who have a common law marriage under Pennsylvania law:
● Division of real estate: A couple that believes they are in a common law marriage has the right to seek equitable distribution of real estate upon divorce. If a couple has owned property prior to the creation of the common law marriage, what happens to it is determined by an equitable distribution. The amount of property divided depends on the contribution each party made to the purchase of the property.
● Inheritance rights: A couple in a common law marriage is entitled to the same inheritance rights as a legally married couple. Therefore , each party would inherit property under intestacy laws if the other passed away without a valid will.
However, because Pennsylvania law does not acknowledge common law marriages entered into after a specific date (January 1, 2005), in order to ensure a spouse receives their rightful inheritance, the deceased partner should draft a will naming their partner as co-beneficiary.
A common law marriage can be legally established if it was created before common law marriages were outlawed in Pennsylvania. Because there is a common misconception that a common law marriage cannot be undone, some may continue living together as husband and wife in the absence of legal counsel.
It is highly recommended for couples that believe they are in a common law marriage to seek professional legal assistance in order to know their rights and how the law applies to their situation.
Alternatives to Common Law Marriage
In Pennsylvania, common law marriage is a relic of outdated and often misused legal doctrine. Alternative legal arrangements exist under Pennsylvania law that accomplish the same goals that common law marriage served in the past. These alternatives can help to protect individuals in relationships that resemble marriage but do not meet the requirement of being validly married under Pennsylvania law.
Co-Habitation Agreements
Co-habitation agreements can be utilized by two individuals who live together legally and want to set out their rights and responsibilities in the event the relationship ends, either through separation or death. Co-habitation agreements are similar to premarital agreements between spouses. Unlike co-habitation agreements, premarital agreements are enforceable on a specific basis under the Pennsylvania Divorce Code. Cohabitation agreements are not enforceable on a specific basis, but if the parties have a joint account, own real estate, or have assets they created together, the agreement can govern the distribution of those assets.
Domestic Partnerships
Another alternative, or even complement, to common law marriage is Domestic Partnership. Under the City of Philadelphia domestic partnership ordinance, a domestic partnership can be established by two people who have been living together for at least 12 months, both are at least 18 years of age, are not married, are not related by a straight or adoptive lineage and are financially interdependent. Under the Philadelphia Ordinance, domestic partners will be entitled to all the same spousal rights as common law partners, including health benefits and workers compensation benefits. Other rights of domestic partners may include insurance, civil service benefits, the right to visit each other in the hospital and to make medical decisions for the partner.
While the financial reward associated with common law marriage can be a benefit, it is short lived and, without any pre-existing agreement as noted in the previously mentioned alternatives, can lead to extreme inequity at separation. By setting forth rights and obligations of unmarried persons during the relationship, upon entry of any separation agreement, or at death, alternative methods of protecting your assets and your choice of a surviving person are much more advantageous than relying on an outdated judicially created doctrine.
Consulting an Attorney
Couples who are unsure of the status of their marriage should consult a lawyer for assistance. Experienced family law attorneys can advise you on the steps necessary to prove the existence of a common law marriage, which you will need to secure your rights under Pennsylvania family law and to proceed with a divorce if necessary. It is important that this process is handled carefully, in order to protect your rights and interests. A common law marriage is created through an agreement between the couple that they are married and through cohabitation. Just because the couple may present themselves to the public as being in a marital relationship does not necessarily mean that a marriage exists. There are many issues that must be resolved , such as the effective date of the marriage and whether the couple has been living together for a number of years. In some cases, it may be clear that the couple has fulfilled the requirements to constitute a common law marriage and it may just be a matter of filing the paperwork and having the marriage formally recognized by the court. However, in other cases, particularly in situations in which a couple lives together for a period of time and then splits up, the issue of whether the couple was actually considered to be married could lead to potential litigation in court. Many issues may require action in court, including valuation of assets, determination of support, and division of debts, and the existence of a common law marriage may affect the outcome of these issues.