What is Common Law Marriage?
Many people I consult with have an idea of what a common law marriage is. For those who do not, generally speaking, a common law marriage is one where two adults agree to be married and consider themselves to be married, but never get a marriage license from a Commonwealth or State. A common law marriage provides the same legal benefits and protections as a ceremony marriage. For Pennsylvania, couples who established a common law marriage prior to January 1, 2005, will have that marriage recognized as long as one of them was a Pennsylvania resident. Couples who established a common law marriage after January 1, 2005, are not entitled to the same benefits, unless the common law marriage is established in another State with more favorable laws. The general requirements for a common law marriage until its demise in Pennsylvania were: Both individuals needed to have the legal capacity to enter into a marriage, i.e., be the correct age, be unrelated to one another; And that the parties agreed to and considered themselves to be married. A couple agreeing to be married is not sufficient. The couple needs to take actions that demonstrate their mutual intent . Both parties would enjoy the status of a married couple, although that does not mean that they need to represent their status to the general public. The general requirements for a common law marriage in the United States include: The couple must hold the legal capacity to enter into a marriage; The couple must agree to marry and intend to be considered married; The couple must enter into their mutual agreement while in a State that considers common law marriages to be valid. In such jurisdictions, the discussion of what is required to demonstrate mutual consent become of importance. Today, some States still recognize the validity of a common law marriage. Those States are: Alabama, Colorado, Iowa, Kansas, Montana, New Hampshire, Rhode Island, South Carolina, Tennessee, Utah, and Texas. While the Federal government no longer recognizes common law marriages, certain States do provide for a common law marriage lived in other States, known as a comity argument. Additionally, there is the notion of "grandfathering in" where the particular State will continue to recognize a common law marriage entered into prior to a certain date. This was the approach in Pennsylvania for couples who entered into a common law marriage prior to January 1, 2005.
Common Law Marriage in Pennsylvania — Current Status
Historically, Pennsylvania law permitted couples to enter into a marriage based on their mutual consent to the marital relationship. Under this theory, parties who mutually agreed to enter into a marriage, and manifested that agreement to one another, would be considered legally married. Although mutual consent to the marital relationship was theoretically sufficient to establish a valid marriage, the law in Pennsylvania historically had several requirements in order to recognize a marriage of this kind, specifically: (1) At least two witnesses were required to the mutual consent between the parties; (2) Parties had to cohabitate together after entering into this kind of relationship; and (3) there had to be evidence of the public announcing the relationship as a marriage (also known as cohabitation).
This all changed as a result of legislative changes to the law in Pennsylvania in 2005. In 2004, the Supreme Court of Pennsylvania determined that it would be unconstitutional to eliminate common law marriages in Pennsylvania, but also acknowledged that the legislature had the authority to eliminate such marriages as a matter of public policy. One year later, the legislature passed the Common Law Marriage Elimination Act, which eliminated the ability of parties to enter into a common law marriage in Pennsylvania. Although the law eliminated the creation of new common law marriages in Pennsylvania, it did not affect the validity of common law marriages already entered into before January 1, 2005.
Although the law eliminating common law marriages has been in effect for nearly 10 years now, it is important to keep in mind several key points regarding common law marriage and when it should be used: (1) ONLY marriages entered into before January 1, 2005 may qualify as common law marriages in Pennsylvania; (2) there are several states that currently still allow for common law marriages, and parties who enter into such relationships in those states may use Pennsylvania law to recognize their common law marriage and seek divorce in Pennsylvania; (3) in recent years, Pennsylvania family law courts have become more strict in applying the requirements to establish a common law marriage that had previously been used by the courts. These procedural requirements include things like producing witnesses to the parties’ mutual consent or the public declaration of the relationship as a marriage. As a result, many divorces where one party alleges in the pleading that a common law marriage exists get transferred to another state to be tried. Other courts refuse to even accept the filing of such lawsuits. The take away examined here: Just because a person believes that they entered into a valid common law marriage does not necessarily make it so.
Exceptions and Grandfathering of Marriage
Although no longer legally recognized in the Commonwealth of Pennsylvania, common law marriages are preserved for individuals who fall under three categories. These three categories are basically grandfathered cases because they were entered into when these marriages were still recognized in Pennsylvania.
- Individuals who, prior to January 2, 2005, entered into a common law marriage. The law is clear on this topic. If you entered into a common law marriage in Pennsylvania prior to January 2, 2005, that marriage is still valid and enforceable by law. Even if you move out of state, your common law marriage will be recognized as a legal marriage that was validly entered into while you were residing in Pennsylvania. This means that all the benefits of a legal marriage will flow between the parties, including health insurance benefits, social security benefits, survivor benefits and inheritance rights.
- Individuals with a ceremonial marriage prior to January 2, 2005, and were subsequently divorced in another state and never remarried. This category of abode refers to individuals who obtained a formal ceremonial marriage but then moved out of Pennsylvania and obtained a divorce in another state and never remarried. Here again, the prior marriage would be considered valid and would be recognized in Pennsylvania today.
- Decrees of Invalidity by the Pennsylvania Superior Court (Decree of Certificate of Invalidity). This category of abode refers to a special decree or certificate which must be obtained from the Pennsylvania Superior Court invaliding a common law marriage. This process, while rarely used, is available to individuals who want to avoid the non-judicial procedure of obtaining invalidity of their common law marriage by the Pennsylvania Superior Court.
Legal Consequences of Common Law Marriage in Pennsylvania
There are several legal implications for couples in Pennsylvania who consider themselves to be common law married. For example, the rights to property, inheritance and alimony can all be affected in cases of divorce or death.
Pennsylvania does not recognize common law marriages that occur after January 1, 2005. This means that individuals cannot enter into an informal relationship and later claim common law marital status if they simply meet certain criteria.
When a common law couple with a premarital estate plan (like a will) is married or dies, the marriage or circumstance of death must be taken into account with the plan. This commonly means that former beneficiaries are taken out of the will in favor of the common law spouse and new arrangements are put into place.
Pennsylvania law does allow those outside of the common law marriage to challenge the validity of the marriage , but they must have the legal standing to do so.
Those who claim to be common law married after January 1, 2005 do not have the same rights as those who are formally married. Any benefits intended for formal spouses are not automatically given. For example, a person married before 2005 (and is now divorced) could lose their right to survivor benefits if their previous relationship was not recognized by law.
Common law marriages can also create conflicts when deciding which debts belong to whom after the relationship ends, whether traditionally or through death.
Proof of Common Law Marriage and Legal Verification
Individuals wishing to verify or prove the existence of a common law marriage have a relatively straightforward means to accomplish their goals. In most cases, all that is required is the cooperation of the parties. If the parties are agreeable, they can sign a Common Law Marriage Verification Document that will serve as evidence of the existence of a common law marriage. A Common Law Marriage Verification Document requires proof of having lived together as a married couple for a period of time, and must be executed before a notary. A person who signed the verification document must appear before a notary public, who will then prepare an Affidavit or Declaration in Evidence attesting to the authenticity of the document. Following the preparation of the required Affidavit or Declaration, the parties will return to Court to submit the Common Law Marriage Verification Document to the Court. If they are unable to establish the existence of a common law marriage through the Common Law Marriage Verification Document, a couple could proceed by filing a Complaint requesting a declaration that a common law marriage existed, so that action can be converted into a Petition for Declaratory Judgment. If the Complaint is granted, the Petition for Declaratory Judgment will be converted into an order establishing the existence of a common law marriage. This order may be accepted as sufficient evidence of the existence of a common law marriage for purposes of spousal rights flowing from the marriage.
Other Options to Common Law Marriage
In lieu of discussing whether Pennsylvania or any state still recognizes common law marriage, this entry will instead discuss alternatives to common law marriage.
If you are like most people, the idea of having less than what your partner has is not very enticing. However, Pennsylvania has various domestic arrangements that offer the same legal rights and responsibilities as a common law marriage without having to pretend that you were married in order to normalize your relationship with those who may have judged you differently. These remaining options for couples include: a domestic partnership, a civil union, a covenant marriage, or a formal marriage.
A domestic partnership can best be described as a cohabitation between people in which the residents have arranged their financial affairs in a way that somewhat simulates that of a married couple. The Courts of Pennsylvania have recognized domestic partnerships on a few occasions. While not fully the equivalent of a marriage, they provide some of the legal protections available to married couples, but do not provide uniform treatment by federal agencies such as Social Security or the Internal Revenue Service (IRS).
A civil union is most commonly found in Vermont, New Jersey, Connecticut, Delaware, Hawaii, Maine, Wisconsin, local municipalities in Massachusetts , and in Washington, D.C. It offers similar benefits to those offered in a traditional marriage, but falls short of full marriage. Similar to domestic partnership, a civil union is only usable in those jurisdictions that offer it. Federal agencies such as the IRS and Social Security Administration do not recognize civil unions.
A covenant marriage is one that imposes limitations on divorce. Pennsylvania does not have any laws providing for covenant marriages. The states that do are Arizona, Arkansas, Louisiana, and Utah. One of the spouses must be found at fault for the dissolution of the marriage in order to receive a divorce under a covenant marriage. Proponents of covenant marriage argue that these arrangements reduce the levels of divorce, since the separation cannot simply be blamed on no-fault reasons like irreconcilable differences. However, a majority of the population sees no need for covenant marriages, as they could lead to the necessity of jury trials just for divorce.
It is highly recommended that prior to entering into any of the above arrangements, that individuals consult a family law attorney to discuss their options. Family law attorneys can properly counsel individuals concerning the benefits and burdens of each arrangement, and guide them towards finding the right fit for each unique situation.