Common law marriage defined
A common law marriage is traditionally defined as a mutually agreed upon relationship between two people that constitutes a marriage without the need for a license or formal ceremony. This type of union was recognized at common law, or the body of law developed from custom and general principles recognized by judicial decisions, as early as the 9th century. Despite this long history, Pennsylvania has not recognized common law marriages since January 1, 2005. For decades prior to this date, Pennsylvania recognized common law marriages if they were created before the cut-off of date .
Prior to 2005, a common law marriage was defined as a relationship between two people, capable of entering into a valid marriage, that have lived together for a significant period of time and openly declare themselves as spouses. At the time the Pennsylvania Legislature abolished common law marriage, 11 other states, including Delaware and New Jersey, still recognized the practice, though it remains rare in the contemporary United States. Today, most legal unions are created through the more traditional means of marriage certificates.
Common law marriage in PA
Under the Commonwealth of Pennsylvania common law marriage generally has been in place to the present day. In order for a couple to have entered into a common law marriage the couple must have: (1) intended to be married, (2) agreed to be married, and (3) cohabitated. Note that one does not have to have witnesses at the time of the alleged marriage, such as is required in a marriage according to religious traditions. On September 17, 2003, the state of Pennsylvania amended its state Marriage Code effectively abolishing common law marriage. However, those couples that entered into a common law marriage prior to January 1, 2005 are still recognized by the Commonwealth. Therefore, a marriage entered into a few months before the cut-off date in 2005 is valid, but one entered into a couple of weeks after would not be. So, if you have lived with someone for several years or about to move in – be aware of this requirement. The law however has changed on the issue of when a common law marriage ends. The Pennsylvania State Legislature passed a bill on July 5, 2011 re-stating that couples who entered into a common law marriage prior to January 1, 2005 have a "marriage until death, divorce or annulment." If you are a couple prior to 2005, than your common law marriage is recognized by the Commonwealth for purposes of equitable distribution and alimony.
Common law marriage requirements
For a common law marriage to be valid in a common law jurisdiction, both parties must have capacity to marry. That is, the parties must have been suitable ages to marry, and not be within the prohibited degrees of kinship (i.e., not too closely related). Additionally, the parties in a common law marriage must have the intent and agree to be married, and those intentions must be broadcasted to enough people to have been a marriage publicly recognized. After that, the cohabitation requirement for common law marriage, which generally requires that the parties cohabit in a permanent residence, must be met. Then and only then, will the common law marriage be found to exist, even if, at that point, there is no ceremony and no license. Because the parties do not participate in a civil or religious ceremony indicating the end of dating, dating has no effect on the adjudication of common law marriage. The period of cohabitation is not determinative of the date of the marriage. Thus, the date of the marriage will be determined at the time of the last financial contribution by one party to the family fund.
Legal obligations of a common law marriage
In speaking with clients that have been in a common law marriage and have now decided to end that union, a question arises about what legal rights and responsibilities the couple may have. The first thing I tell these clients is that the legal rights and responsibilities of a couple that was legally married in Pennsylvania and a couple in a common law marriage are equal as long as there is no challenge to the existence of the common law marriage. If the requisite elements are present, then the parties have all the same legal rights, remedies, and protections as any other legally married couple in Pennsylvania.
The confusion comes in when one party wishes to challenge the existence of a common law marriage. This is when the difficulty arises for a party that wishes to challenge the existence of the common law marriage. To be clear, a challenge can only come from a party outside the marriage, not from an individual in the marriage.
Challenges to the existence of a common law marriage come before the Court most often in the context of a divorce. If you are a party to a case, then you cannot challenge the existence of the common law marriage. The reason being is that if you were married under common law and you are now in the process of getting a divorce, you have invited the court to recognize your common law marriage, therefore, you cannot challenge the very existence of your marriage. If you start out an action in divorce as a husband or a wife, then you are asking the court to divide up marital assets between yourself and your spouse. If you are then challenging the existence of the common law marriage, you are really asking the court to divide up no assets versus dividing assets acquired during the marriage. This can be very messy and very confusing.
Typically, a party will launch a challenge to the existence of a common law marriage through pre-trial motions before the divorce action is heard by the Court. In those cases, the court will first decide if the parties were married at all. If the Court finds that the parties were married, then it will move forward to consider the matter of equitable distribution the same as it would for a legally married couple.
Proving a common law marriage
The existence of a common law marriage may be proved in court by various forms of evidence, including but not limited to:
The problem with proving the existence of a common law marriage is that in many cases, such evidence does not exist. For example, for the period of time that an obligor was living with the obligee, there may have been very limited or no contact with family members who could provide evidence of the relationship. In some cases, the two parties were living together secretly (such as in a second marriage) and did not want family members to know about their relationship. They may have wanted to conceal their relationship from an employer or co-worker (some employees cannot be married to co-workers). There are many different reasons why evidence to show the existence of a common law marriage is lacking .
In those cases, an obligor seeking to prove that the parties had entered into a common law marriage must be able to provide some minimal evidence to show the chances of a common law marriage being valid were greater than 50%. Courts have ruled that a party seeking to overturn a divorce judgment based upon a claim that the parties entered into a common law marriage has the burden of showing by clear and convincing evidence that the marriage did exist. It is only in exceedingly rare circumstances when there exists a mere possibility that a common law marriage might instead be found to be valid that a court would find a common law marriage to exist. In each case, a court will assess the credibility of the witnesses testifying regarding the existence of the common law marriage.
Ending a common law marriage
Dissolution of a Common Law Marriage
The manner in which a common law marriage terminates is typically not as well known as how one is formed. Generally, a common law marriage can be dissolved through a legal separation or divorce. It is pertinent, however, to look first into whether the common law marriage is compliant with the laws of the specific jurisdiction. Pennsylvania adopted the Uniform Premarital Agreement Act in January of 1980. In doing so, the Commonwealth of Pennsylvania expressly forbade parties from entering into premarital agreements regarding spousal rights of support, maintenance and property distribution. These three issues, however, typically make up the majority of parties divorce considerations. As a result, many people have entered into what are known as "post-nuptial agreements", whereby the parties can agree upon these issues, and memorialize the agreement through the signing of a document if the court approves the agreement. An agreement to avoid entering into a marriage or to suspend its effect does not terminate a common law marriage in Pennsylvania. As a result, a court will not regard the common law marriage as being dissolved. The courts that permitted an agreement between the parties to dissolve a common law marriage are very few and very limited in scope. Many states now outlaw the common law marriage concept entirely or only recognize such marriages that are created by common law standards prior to a certain date. In Pennsylvania, for example, the cut-off date for recognizing common law marriages is January 1, 2005. As a result, if the common law marriage was entered into prior to this date, it may still be valid if it otherwise seems to meet the common law criteria. Divorce Court can often be a difficult place to be. There is a wide range of emotions that can be explored and experienced during the process of seeing the end of the relationship. Reaching out and happening across a "common law divorce" attorney can seem enticing and preferable, considering the availability of the assets to be legally spent. However, common law divorces are not commonly recognized in any state in the United States where they are still allowed. As a result some of these attorneys can turn out to be scams, or worse. Ultimately, although the parties may satisfactorily conclude the breakdown of the common law marriage by way of settlement agreement, either party may petition the court to obtain an order formally terminating the common law marriage.
Recent developments in the law
The Pennsylvania Superior Court recently addressed issues concerning the validity of a common law marriage in In re Estate of Garrison, 2018 Pa.Super. 98 (May 7, 2018)( en banc). The decedent, Jerry Garrison, left a handwritten note excluding the woman with whom he lived for the last ten years from inheriting a portion of his estate as his surviving spouse. Claiming to be the widow of the decedent based on a common law marriage between the parties, Mildred Adams Garrison sought a declaration that she was entitled to inherit the distributive share of the estate. After a hearing, the Orphan’s Court found that there was a valid common law marriage between the parties and admitted the handwritten note to probate as a validly executed will.
The Superior Court reversed. The Court found that the conduct of the parties relied upon by the trial court to support a finding of a common law marriage was merely indicative of a "live-in romantic relationship" as opposed to proof of the requisite elements of a common law marriage, i.e. the parties’ mutual intent "to do those things which are necessary to their being husband and wife …" The Superior Court agreed with the prior ruling in In re Estate of Display, 22 Pa.D. & C.4th 446 (1994), that contrary to the argument of the petitioner widower, in 2003 the Pennsylvania Legislature established a fixed definition of marriage under the Marriage Law and it shall constitute a permanent bar to all common law marriages post-dating January 1, 2005, regardless of the couple’s intent. Again, according to the Superior Court, the reasoning in Garrison inappropriately allowed a newer version of the common law marriage besides the ceremonial marriage as set forth in the Marriage Law. Further, the Superior Court found that the trial court unconstitutionally and improperly legislated a pre-2005 common law marriage upon the class of unmarried cohabitants by applying the Display analysis as set forth in Display III I to determine that a pre-2005 common law marriage existed between the parties. According to the Superior Court, Display III I is only applicable to determine whether a previously validly entered into a common law marriage was validly terminated. Thus, Display III I cannot be used to validate a "new" type of common law marriage not recognized in Pennsylvania since 2005, that is where the parties merely cohabited and presented themselves to the public as lawfully married irrespective of a prior marriage that was terminated by divorce.
The issue of a post-2005 constitutionally-permitted recognition of a common law marriage was avoided by the Superior Court by strictly limiting its holding to the issue of retroactive application of a post-2005 common law marriage. However, if such a "new" common law marriage is recognized in the future, the issue of whether "de-facto" partners can be considered a statutory notion of "parent" and "child" for intestate succession purposes, should also be discussed.
Common law marriage FAQs in Pennsylvania
Q: When did Pennsylvania abolish common law marriage?
Before January 2, 2005.
Q: How do you know if a common law marriage exists?
A common law marriage can be established for purposes of an estate or a divorce if the parties either entered into a common law marriage prior to January 2, 2005, reside in a neighboring state that recognizes common law marriages, or were married in a "common law" state (which includes district of Columbia and the following states where common law marriage is recognized: Alabama, Alaska, Colorado, Iowa, Montana, New Hampshire, Ohio, Rhode Island, South Carolina, Texas, Utah, and Kansas) .
Q: Are common law couples legally married?
Yes, when the requirements for a valid common law marriage are met. The terms "common law marriage" and "marriage" have the same meaning in Pennsylvania. Therefore, all the legal implications of being married exist whether the parties obtain a marriage license and hold a wedding, or simply enter into a common law marriage.
Q: If a common law couple separates, can they apply for divorce in Pennsylvania?
Yes, if the requirements for a common law marriage are met, the parties can file for divorce in Pennsylvania.