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You should also be aware that many of the Answers and Opinions expressed on this page represent our opinion and do not necessarily reflect the views of the entire legal community!

Laws in different states may vary. Since we practice in Oklahoma the views in this segment reflect Oklahoma Law, and the law applicable in your state may be different.

You should not consider these Answers and Opinions as legal advice applicable to your particular case and circumstances.

In planning your affairs you should consult directly with an attorney of your choosing, acquainting him / her with all of the facts and circumstances which apply to you.

In planning your affairs you should always get a second opinion.

Some States, including Oklahoma, recognize a non-licensed, non-ceremonial marriage, which has been variously called Marriage by Contract or a Common Law Marriage.

Although most states do not recognize the establishement of a marriage by Common Law , each State recognizes a Marriage which was valid in the State where such marriage occurred.

This comity between the States of recognizing of any marriage validly entered into in another State has caused great concern when any one State changes the definition of Marriage. i.e., Same Sex Marriages. If any one State accepts such a marriage within its borders, then the other States would have to accept the validity of the marriage if the parties moved into the State.

What is a Common Law Marriage?

A Common Law Marriage is a marriage that has been entered into by a Contract or Agreement between the parties, but has not been memorialized by ceremony.

Common law marriage -- One not solemnized in the ordinary way (i.e. non-ceremonial) but created by an agreement to marry, followed by cohabitation. A consummated agreement to marry, between persons legally capable of making marriage contract, per verba de praesenti, followed by cohabitation. Such marriage requires 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 man and wife, and an assumption of marital duties and obligations. Marshall v. State, Okl.Cr., 537 P.2d 423, 429.

Black's Law Dictionary 6th Edition

Is a Common Law Marriage as Good as a regular or ceremonial Marriage?

Yes - A Common Law Marriage is a valid as any other marriage, and is subject to the same duties, obligations and benefits as a ceremonial marriage, if the marriage occurs in a State where allowed by law!

If the parties enter into a valid Common Law Marriage in a State where allowed, then the marriage is valid in any State where the parties subsequently reside. Such a marriage is then subject to the terms and provisions of the Statutes of the new State.

The Social Security Administration recognizes a common law spouse, so long as the status was fully acquired in a state that accepts it. The status is proven by a joint affidavit, if both spouses are alive, or by affidavit of the surviving spouse and two relatives otherwise, that there was a marriage as evidenced by their conduct.

What does it take to have a Common Law marriage?

An Agreement between the parties to be presently married!

This means an agreement to be married NOW ! - Not an agreement to get married at some future time - not even if the parties are on the way to the church to get married!

The parties must be Legally Compentent to enter into the marriage contract!

• They must be of legal age to enter into a contract, and of legal age to get married in the State!
  
  
• They must be mentally capable of entering into a contract
  
  
• They must not be under any legal impediment that prevents them from getting married. i.e., already married to someone else, or under some Court Ordered prohibition against getting married.

Does the Agreement to Be Married Need to be in Writing?

No!

In my 25 plus years of practice I have only seen one actual written marriage contract which established the Common Law Marriage.

It said simply:

"We hereby declare that we are presently married to each other."

It was signed by both of the parties and not even notarized.

I have seen one other that stated simply that the parties " . . were married by common-law on a certain date and place".

This one simply acknowledged that the parties had done it!

However - in each case the validity of the establishment of the marriage depended upon the law of the State where the alleged Marriage occurred in allowing a Common Law Marriage!

NOTE: - Neither have we seen more than half a dozen marriage contracts in writing where the parties had a ceremonial marriage performed!

In former times, Written Marriage Contracts were quite common, but very few are now in writing. Generally a simple I do! in front of a preacher or Justice of the Peace constitutes the Agreement of the Parties.

By saying I do! the parties incorporate into their agreement all of the terms and provisions of the Statutes of the State where the marriage is performed - and the terms and provisions of the Statutes of the State where the parties reside at the time of divorce or death!.

In modern times the most common written agreement concerning the marriage might be a Pre-Nuptial Agreement!

See - Pre-Nuptial Agreements - Ante Nuptial.

See - FAQ - Wills & Trusts

See - FAQ - Probate

What is NOT a Common Law Marriage!

Neither Shacking up or merely living together makes a Common Law Marriage! - Not even if children are born to the parties.

Nor does merely checking into a Motel under the name Mr. & Mrs. John Smith create a Common Law Marriage.

There cannot be a "Common Law Marriage" between persons of the same sex. This because the "Common Law" is the unwritten law brought by the colonists to the colonies from England. There was no English law that allowed for same sex marriage, therefore it never was allowed by "Common Law"

How Long must we Live together to make our relationship a Common Law Marriage?

The Length of Time the parties live together does not have anything to do with making a Common Law Marriage!

There must be an Agreement by the parties to be married.

- However, the length of time the parties live together may be a factor when the existence of a Common Law Marriage is made an issue.

When is the Existence of a Common Law Marriage an Issue?

When Someone determines that it is to his or her advantage to claim that such a marriage either existed or did not exist!

This could be one of the parties who might benefit more by proving the marriage in the event of a split - or in case of the death of one of the parties, it could that the surviving party might benefit as the surviving spouse.

An heir of the deceased party might benefit if no there was no such marriage.

How Do you Prove the Existence of a Common Law Marriage?

In Most cases the existence of a Common Law Marriage never has to be proved!

When was the last time anyone asked to see your marriage license, or proof that you are married?

Have you ever called into question whether or not your parents or grandparents, or your closest friends were actually married?

In life and in law there are certain assumptions, among which is that if people hold themselves out to the community and others that they are married, then they probably are!

However, when the validity of a marriage is called into question, the burden of proof is on the person seeking to establish the fact that a marriage in fact exists.

A ceremonial marriage can be proven by producing the marriage license or certificate that shows that the ceremony occurred and was properly witnessed.

With a Common Law Marriage it is the Agreement of the parties to be married that must be proved!

Since the Agreement is seldom in writing and if one of the parties or the heirs claim there was no such agreement, then how can you prove that there was one?

In most cases the parties to a Common Law Marriage cannot actually point to a time and place where they shook hands and agreed that they were married.

Nevertheless the law may imply that there was such an agreement on the grounds of public policy considerations in favor of marriage.

As in other areas of the law, the Agreement of the parties to be married may be Implied from their actions toward each other and their general behavior.

Do they hold themselves out to the community as husband and wife?

• Do they generally live as married people.
  
  
• Do they attend family functions as husband and wife?
  
  
• Do they have a joint bank account as John and Jane Smith - or John Smith and Jane Doe?
  
  
• Do they send Christmas Cards from John and Jane Smith - or John Smith and Jane Doe?
  
  
• Do they file joint Tax Returns, or file as single persons?
  
  
• Do they file Applications for Credit Cards as John and Jane Smith - or John Smith and Jane Doe?
  
  
• Do they own real or personal property jointly as John and Jane Smith - or John Smith and Jane Doe?
  
  
• Have they applied for insurance policies and checked the box married?
  
  
• How do they receive mail - and is the mailbox in the name of John and Jane Smith - or John Smith and Jane Doe?

These, and other factors, along with how long the parties have lived together as husband and wife, are all considered in determining whether the parties had an agreement to be married.

We are aware of one early case where the parties had lived together for over forty years and had grown children,- but the only proof of the existence of the marriage consisted of the testimony of a milk truck delivery man who cited one instance where the deceased told him to collect the milk bill from his wife!

In that case it was the son of both parties who challenged his own mother's right to inherit as the surviving spouse from his father!

On the basis of the milkman's testimony the Court determined that there had been an agreement of the parties to be married, and that they were husband and wife!

- The existence of these factors does not create any implication of an Agreement to be married in a State where Marriage by Common Law is not allowed!

If the parties have never resided in a State where persons may enter into a Common Law Marriage, then the behavior of the parties does not create a marriage.

However, if the parties have resided in a state where a marriage may be entered into by Agreement, and the marriage valid in that state, those factors may be considered in the new state in determining whether a marriage existed.

Where the relationship is long term and where children have been born the more there is a presumption that there was a marriage.

- As with most Contracts it is the intent of the parties that is controlling in a Common Law Marriage Contract

However - it is possible that one or more of the parties to a relationship may not intend to be married, but who cohabit and behave in such a way that the Court's could interpret that a Common Law Marriage existed.

Our office recommends that if any Evidence of the existence of a Common Law Marriage Agreement exists, then the relationship should be terminated by a Divorce Proceeding, or other Judicial Determination that no Common Law Marriage exists!

If I have a Common Law Marriage, and we decide to split up, do we need a Divorce?

Yes! - There is no such thing as a Common Law Divorce

Once the marriage takes place, it is as valid as a ceremonial marriage, and the Statutes of the State where the parties reside at the time of the split govern the respective rights, duties and obligations of the parties at that time.

See - FAQ - Divorce and Annulment