Is Common Law Marriage Here to Stay in Oklahoma?
By Michelle C. Harrington
Common law marriage (more properly referred to as a “pre-Tridentine canonical consensual marriage,” according to the venerable Justice Opala)1 is a doctrine which existed in England prior to the colonization of America. The sole requirement for a common law marriage was an agreement to be married. The United States Supreme Court considered the validity of the common law marriage in 18432 and finally approved the doctrine in 1877. At that time the United States was barely 100 years old — there were vast stretches on the frontier where churches and courthouses were scarce and individuals with the authority to marry others were a rarity. Recognizing common law marriage allowed women the protections of marriage at a time when single women did not have property (or voting) rights, and further allowed for the protection of children who would otherwise be labeled “illegitimate” (children born outside of wedlock did not have rights for support or inheritance). The only difference between a common law marriage and a ceremonial marriage is the formality with which they occur. Both are equally valid in Oklahoma.
At the turn-of-the-century nearly two-thirds of the states recognized common law marriages. Today, Oklahoma is one of only a handful of jurisdictions which still recognize the doctrine3 — in spite of the fact that for decades opponents of the doctrine have tried to abolish it. Early in our history, statute required a marriage license be obtained prior to getting married.4 Nevertheless, the common law marriage doctrine prevailed with courts indicating the statute is directory and not mandatory.5 Legislative opponents of common law marriage thought they had succeeded in their mission to rid Oklahoma of the doctrine when they added a term to the marriage license statute which stated that requirements therein are mandatory and not directory.6 However, that language was not strong enough to overcome Title 12 O.S. Section 2. That statute states:
The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma; but the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally construed to promote their object.
In other words, if the Legislature wants to overcome a common law, it better be very specific. To date we do not have a specific statute that states common law marriage will no longer be recognized in Oklahoma. But not for lack of legislative attempts — bills have been drafted over the years attempting to do just that — they just haven’t made it through both legislative houses. So here we are, with common law marriage alive and well in Oklahoma.
COMMON LAW MARRIAGE REALITIES
Estate of Phifer7 summarized decades of case law to set forth necessary “elements” to determine if a common law marriage existed. The party asserting a common law marriage has the burden to prove 1) an actual and mutual agreement between the parties to be husband and wife; 2) a permanent relationship; 3) an exclusive relationship; 4) cohabitation as man and wife; and 5) the parties to the marriage must hold themselves out publicly as husband and wife.
Phifer should have used the word “characteristics” instead of “elements” because, as subsequent case law indicates, not all five items need to be present.8 By the time the matter comes before the court, one party is obviously denying there was mutual agreement to be husband and wife. “Permanent” is rather nebulous, too — the fact that they are before the court indicates that the relationship is not going to be permanent. Having sexual relations outside of marriage is not going to, on its own, defeat a common law marriage claim any more than adultery within a ceremonial marriage invalidates the marriage. And the same can be said for cohabitation — the parties do not have to actually reside together for a marriage to be proven. Evidence of the parties holding themselves out to the public to be husband and wife will be one of the strongest indicators of what the parties’ intent was at the time a common law marriage was created.
Testimonial evidence from family, friends, professional acquaintances, neighbors and community members as to whether or not the parties behaved in a way that was consistent with being married is important — such as the parties referring to each other or introducing each other in spousal terms. Documentary evidence can range from something as seemingly minor as nametags declaring “Mrs. His-last-name” for a professional function, to listing the other party as a spouse for the purpose of obtaining a benefit, to the taken-under-oath documents such as income tax returns. The court can look to the totality of the circumstances. For instance, an income tax return wherein a party signs off as a single person may not defeat a common law marriage claim when there is also real property deeded to the parties “as married persons” as well as testimonial evidence about the parties referring to each other as “husband” and “wife.” The party asserting the existence of the common law marriage has the burden to prove it by clear and convincing evidence.9
TERMINATING THE COMMON LAW MARRIAGE
There is no such thing as a common law divorce. Because a common law marriage is a valid marriage, it must be terminated the same way that a ceremonial marriage is ended — either by death, annulment or divorce. Many don’t think such formal actions are necessary when no formal action was taken to solemnize the marriage. So what if they filed joint income taxes for two years? So what if they had a bank account on which the female partner used her partner’s surname? Who will care if they just go their separate ways and start living as single persons if they are both in agreement to do so? Probably no one for a while. Until there is money to be had. The potential to receive alimony, property, inheritance, death benefits and other financial incentives can really jog a memory. Because a common law marriage is a valid marriage, any subsequent marriage entered into without terminating the common law marriage would be bigamous and, thus, void. Therefore, a common law spouse could actually receive benefits intended for a subsequent life partner.
If a party is denying that a common law marriage exists in response to a petition for dissolution of marriage, the court must conduct an evidentiary hearing to determine whether or not there exists a valid marriage before the divorce can proceed. If the court determines that the parties did indeed have an intent to be married and a common law marriage was established, the dissolution of marriage proceeding can go forth and the court can award alimony, divide property and divide debts of the parties in an equitable manner. If it is determined no common law marriage exists, the parties must seek available relief through other civil actions such as paternity or contract suits.
Similarly, if a common law marriage is asserted at the time of a party’s death that was not previously acknowledged, the probate court must determine whether or not a common law marriage existed before it can properly distribute the estate of the deceased. In addition, entities disbursing death benefits, such as a workers’ compensation court, has the same duty to ascertain whether or not a common law marriage exists if a claim is made.
Not properly terminating a common law marriage at the time it physically ends can have significant repercussions — often years later. One of the harshest consequences is the voiding of a later marriage, thus resulting in a denial of inheritance or death benefits to an individual who lived as a spouse in good faith and had an expectation — and often a great need - for the financial protection.
THE DEBATE CONTINUES
With the plethora of churches, courthouses and persons authorized to marry couples, does common law marriage still serve a useful purpose? Many say no.10 Opponents of the doctrine argue that we are no longer a paternalistic society wherein women do not have education and property rights consistent with the male population; thus, women do not need the protection of the defacto marriage as they once did. Further, children’s rights to be supported and entitled to inheritance can be ascertained through paternity actions. And the morals of our society have shifted to the point where a child being born out of wedlock does not carry the dramatic stigma it once did. As a matter of fact, it is statutorily incorrect to refer to a child born outside of marriage as “illegitimate” or a “bastard”11 (the statute does not address the use of the latter term to describe individuals when not referring to parentage).
Public policy arguments can be made to abolish common law marriage. If only ceremonial marriage was recognized, public records would be clear; citizens would not be able to avoid a jurisdiction’s statutory requirements; fraud in the transmission of property would be reduced; and the ability of the state to enforce health-related marital requirements through the licensing process could be effectuated. One set of authors express concern about putting judges in the position of having to determine whether or not a marriage exists:
The “curative powers” of common law marriage can serve a double-edged sword. Important to the outcome in any case can be the proclivity of the particular court to try to find a socially desirable solution under the circumstances by manipulating facts in terms of rules of evidence, or by the presumption of validity of the most recent marriage, the probative value of the ceremony, the presumption of favoring legitimacy, or shifting the burden of proof. Significant in many cases is the context or proceeding in which the question is raised; the potential here is vast, including questions of the availability of the husband-wife privilege in criminal cases, whether a prior will was revoked, whether the appropriate action for dissolution should be divorce or annulment and what this will mean in terms of support, determination of an insurance beneficiary, or the ordering of heirs under intestacy law.12
Removing the obligation to have evidentiary hearings (regarding the proof needed to establish a common law marriage) in a myriad of legal actions would result in judicial efficiency.
On the other hand, there is support for common law marriage. One author states that failure to recognize the doctrine has a negative effect on women — especially those who are widowed, abandoned, victims of domestic violence, minorities and persons of color.13 Local proponents for common law marriage are concerned that innocent spouses would be denied rights and benefits they would otherwise be entitled to but for fraud or mutual mistake. A few states have “putative spouse” statutes that allow the court to declare a putative spouse status on one who had good-faith belief that he was married in spite of the fact that the marriage does not actually exist.14 Oklahoma does not have such a statute. At this time, it is possible that a party could think he was married for years and find out after the death of his spouse that, because of a technicality (such as the person who officiated the marriage did not have the legal authority to do so) he was not. Without the recognition of common law marriage, such a person would not be entitled to any death benefits or inheritance from his long-time partner.
In order for common law marriage to be abolished in Oklahoma there has to be a statute that is specific about doing so. The doctrine could be statutorily abolished entirely or prospectively, allowing recognition of the existence of a common law marriage created prior to the enactment date. But until that happens, people in this state can continue to create valid marriages by holding themselves out publicly to be married and behaving in a way that evidences intent to be married. And the debate about whether or not there is a valid purpose for the doctrine of common law marriage to exist in Oklahoma is sure to continue.
1. Mueggeborg v. Walling, 1992 OK 121, 836 P.2d 112 (S. Ct. 1992).
2. Jewell’s Lessee v. Jewell, 42 U.S. (1 How.) 219 (1843).
3. The other states still recognizing common law marriage are Alabama, Colorada, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah and the District of Columbia. There are some additional states that recognize a common law marriage if it was established prior to a statutory date.
4. Title 43 O.S. Sect. 4.
5. See Reaves v. Reaves, 1905 OK, 15 Okla. 240, 82 P. 490 and In re Love’s Estate, 1914 OK 332, 142 P. 305 (Okla. 1914).
6. Title 43 O.S. Sect. 5(E).
7. 1981 OK CIV APP 21, 629 P.2d 808.
8. Standefer v. Standefer, 2001 OK 37, 26 P.3d 104.
9. Mueggeborg v. Walling, 1992 OK 121, 836 P.2d 112 (S. Ct. 1992).
10. Numerous commentators have addressed arguments for and against the continued viability of the common law marriage doctrine. For a summary of arguments most often used by opponents to common law marriage, see McCormack, John L., “Title to Property, Title to Marriage: The Social Foundation of Adverse Possession and Common Law Marriage,” 42 Valparaiso University Law Review 461, (Winter 2008).
11. Title 10 O.S. Sects. 1.1 and 1.2.
12. Domestic Relations Cases and Materials, Fifth Edition, by Wadlington and O’Brien (University Casebooks 2002).
13. Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Marriage, 75 Or.L.Rev. 709, 769-770.
14. Examples of Putative Marriage Statutes can be found in the state codes for California, Colorado, Illinois, Louisiana, Minnesota and Montana.
COMMON LAW MARRIAGE MYTHS
- Living together seven years (or any other magic number) creates a common law marriage. There is not, nor has there ever been, a minimum time of cohabitation that automatically creates a common law marriage in Oklahoma.
- Filing joint tax returns is an admission of common law marriage. Not necessarily — the court will look at the totality of the circumstances. For instance, whether or not the community believes the parties were married or if there is contradictory evidence such as real property deeded to a party as a “single person.” However, there is a caveat. Although signing the joint return does not automatically create a common law marriage, it does create an opportunity for opposing counsel to enjoy the rare Perry-Mason-moment where he can ask: “Were you lying to the United States government and attempting to commit fraud or are you lying today about the existence of a marriage?”
- Signing a hotel registry “Mr. and Mrs.” shows intent to be married. Some years back this may have been persuasive. Today, without more substantiating evidence, the court may be very clear on the intent of the signing party and may conclude that the intent had nothing to do with marriage.
ABOUT THE AUTHOR
Michelle C. Harrington graduated in 1992 from OU. She is a solo practitioner whose practice is limited to family law and guardian ad litem representation. She has been an adjunct professor at OCU School of Law since 1999 teaching family law and ADR in family law. Additionally, she is on the teaching faculty for Interdisciplinary Training for Child Abuse and Neglect. She is a master member of the Ruth Bader Ginsburg Inn of Court and serves as president-elect for the OKC Downtown Chapter of the National Exchange Club.
Originally published in the Oklahoma Bar Journal, Nov. 21, 2009, Vol. 80, No. 31