Am I Common Law Married?

posted Jan 19th, 2011     in News     by

Most people that live in Oklahoma do not realize their dating relationship may, in fact, be a marriage for legal purposes.  Common law marriage is still alive in well in Oklahoma.  In fact, we are one of only a handful of states that still recognizes the doctrine.

The history of common law marriage goes back to English Christianity, however, the Supreme Court of New York first recognized the doctrine in the United States in 1809.  In Oklahoma, the matter was first addressed in Reaves v. Reaves before Oklahoma was even a state.

The Court held that statutes which provided for marriage by license were merely “directory” and did not do away with common law marriage.  Since that time, common law marriage has been a viable legal doctrine.

Recently, the state legislature has made several attempts to do away with common law marriage.  The rationale being that common law relationships create confusion in citizens who don’t know whether they are married or unmarried.  It has also created a problem in probate courts as there is a lot of litigation on whether or not a deceased person has a common law spouse which has consequence for inheritance purposes.

Generally, three elements must be present to prove a common law marriage exists.  1)  an actual and mutual agreement to enter into a permanent and exclusive marriage  2)  the parties must be legally capable of marriage  3)  the marriage must be consummated by either (a) cohabitation or (b) the open assumption of marital duties.

On its surface, it seems a simple test, but in practice it is heavily fact-dependent and causes a great deal of litigation to determine the existence or non-existence of common law marriage.  There are also myths about common law marriage.  The most pervasive myth is that you are required to live together for a certain period of time.  This is not true.  There is no magical amount of time that creates common law marriage.  There is also a myth that physical consummation is required.  This is also untrue.

Common law marriage creates a problem for people who share assets, debt, property or expenses and subsequently separate.  Since there is no such thing as a common law divorce, a party seeking to resolve a debt and property issue with a former partner can only sue for dissolution of marriage.  In order to get the relief the party seeks, they will have to prove that a common law marriage existed in the first place before they can proceed in “divorce court.”

If the parties have children, they can proceed with a paternity suit which operates much like a divorce.  This post will presume the parties do not have minor children.

Despite the actual legal standard laid out above, years of practice indicates that the Courts rely very much on the facts of the particular case.  Here is a list of facts I have seen courts rely on when determining whether a common law marriage exists:

1.  Did the parties live together and how long?

2.  How long was the total relationship?

3.  Was it continuous and exclusive?

4.  Did the parties file joint taxes (state of federal) ?

5.  Did the parties publicly hold themselves out as husband and wife?

6.  Did the parties list the other as a beneficiary on any insurance policy?

7.  Do the parties share a health care plan as husband and wife?

8.  Did the parties contemplate their estate planning to include the other as a “spouse.”

9.  Did the parties have joint accounts (credit cards, checking, savings, TSA’s)  ?

10.  Did the parties engage in a lifestyle that would indicate a licensed marriage but without the license?

Some other practicing attorneys may add or subtract from this list but in my experience, these are the types of facts that will lead a court to find that a common law marriage exists.

If you are someone who wishes to avoid being common law married, it is essential that you take caution in your dealings with your partner.  Maintain separate accounts, don’t go by the same surname of your partner, be careful when drafting wills and trusts and avoid filing joint taxes.

It remains to be seen whether the state legislature will be able to do away with common law marriage forever, so in the meantime common law marriage will still create litigation for attorneys and nightmares for litigants.

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