September 14, 2016
Though they may sound like some antediluvian concept from centuries ago (and they sort of are), common law marriages still exist in several states — and, in a retroactive sense, in Pennsylvania.
Curious to know more about what common law marriages are, as well as debunk some myths along the way, we reached out to Theresa Glennon, professor of law at Temple University's Beasley School of Law, for answers.
What is the origin story of common law marriages?
I don’t really know the exact origins, but many people coupled without the benefit of any governmental assistance or interference — however you think of it — for centuries. At some point in Europe, the Roman Catholic Church tried to assert more authority and, eventually, the government stepped in.
There’s a tradition of common law marriage that comes out of Europe and particularly out of England. Though, from what I could tell, England eliminated common law marriage in the 1750s, so it’s really been quite a long time since common law marriage existed in England. But of course, some of the early settlements here — the early American states and colonies differed dramatically in whether they adopted common law marriage. Some states like Massachusetts only allowed what people describe as 'ceremonial marriage.' Other states, like New York, had both: common law and ceremonial (what we think of as licensed marriage). I don’t know exactly when Pennsylvania either adopted common law marriage or how exactly it developed here. I don’t know Pennsylvania's specific history.
What is common law marriage?
Common law marriage is the legal recognition of an informal marriage. So you need to meet several criteria in states that have common law marriage in order to have it recognized. You have to have the capacity to marry, which means you can’t be married to someone else, and you have to have the capacity, the mental capacity, to consent. You need to have what they call ‘present agreement to be married.’ The two people need to have communicated to each other that they wish to be married to each other now — not ‘One day we’ll get married,' but now, in the present, agree to marry each other. They need to live together, which of course people who are ceremonially married don’t need to do. And they also need to hold themselves out to the community as married. Those are the four criteria: capacity, consent, agreement and holding out to the community.
What is 'holding out'?
When you introduce your partner, you say ‘This is my wife, my husband.’ You put that on documents. All those times you fill out forms and say ‘I’m married’ as opposed to ‘I’m single.’ In all your different communications around the community, you would hold yourself out to be married. People don’t usually ask you for your certificate in social settings. [Laughs]
What keeps roommates from getting married, under this?
Well, if you did that you might have a hard time finding someone else to marry. So if you’re willing to engage in a long-term relationship with your roommate and pretend it’s a marriage, you probably could do that, but you have to represent yourself that way with everyone you deal with, and live like you are married. It’s not usually that enticing to people who don’t want to be in a relationship with each other.
Do people 'common law divorce'?
There actually is no common law divorce. A common law marriage has to be dissolved by the courts just like any other marriage. There’s no shortcut to getting divorced. And if you've been in a common law marriage and you go ahead and marry someone else ceremonially, that would be bigamy if you didn’t end the common law marriage first.
It’s a serious marriage. And the person to whom you’re married could assert you're engaging in bigamy if you move on and marry someone else without divorcing them.
What are the benefits of a common law marriage?
Well, some of the historical reasons had to do with lack of access to people who were officially permitted to do marriages. So if you think about the U.S. in the 1600s, 1700s, 1800s, people didn't always have ready access to the officials who would do marriage or religious ceremonies — people who would conduct them.
There also appears to be this desire, by some people, for informal marriages. People don’t necessarily want to get a license and have an official marriage. There are many people who live together for many years and think of themselves as married and have never taken those formal steps. If they started doing that before 2005, in Pennsylvania, their relationship is protected — their inheritance rights, Social Security; all those rights and benefits are protected. But if they started doing that after Jan. 1, 2005, then they won’t have any of those protections. So it’s interesting. I read one report that said in England where common law marriage officially ended in the 1750s, approximately half the population thinks it still exists. I haven’t seen a survey done in the U.S., but you often hear people say ‘Oh I’m in a common law marriage.' Or, 'So and so has been living together for seven years — they must be in a common law marriage.' Seven years has no relationship to common law marriage. People think seven years is the key but none of the states have a seven-year time limit that makes you married. I don’t know where that idea came from. But many people think seven years means you're in a common law marriage.
The dilemma is the people who are hit hardest by the non-recognition of common law marriage are generally those with less education and less money. There are a lot of people who think they want to be married, hold themselves out as married, but haven’t had the resources to have that big thing — the fancy wedding people really want. So they haven't done the official part of that and, for example, people who do Social Security representation will find themselves speaking to lower-income [people], particularly women, who believe they have a common law marriage but find their relationship is not recognized. There are gender issues around who has worked, and who has lived with someone who passed away. If they had an official marriage they would be able to access Social Security benefits, and if they don't have an official marriage they can't access those benefits. Only, sort of, eight to 11 states, depending on how you count, have any form of common law marriage. It’s definitely a minority position in the country now.
Could it swing back the other way? People are viewing marriage differently these days.
It’s interesting. The cohabitation rates have gone way up, and marriage rates have come down considerably. It will be interesting to see if either common law marriage gets revised or perhaps people start to attach rights and responsibilities to cohabitation. Under most states, the approach to cohabitation is there are only rights and responsibilities if the parties enter into an express contract with each other, or if there is an implied contract. So, from your behavior did it look like you agreed you'd share property or something. But generally speaking, very few people are able to access that right now. But Washington state actually uses cohabitation and other marriage-like relationships to provide those kinds of benefits and division of property, that sort of thing. It’s possible other states will go in that direction if it affects more people. Canada has gone in that direction, in some of the provinces.
Do benefits of common law marriage vary by state?
No. If you are found to have a common law marriage then it’s a marriage just like anybody else’s marriage, and you can go get all the divorce rights — property rights division in divorce, inheritance rights if the person dies, and all the government benefits you get as a spouse. It’s all or nothing: You’re married or you’re not.
Glennon: Seven years has no relationship to common law marriage. People think seven years is the key and none of the states have a seven-year time limit that makes you married. I don’t know where that idea came from.
What’s interesting in Pennsylvania, is since the Whitewood decision opened up same-sex marriage in Pennsylvania, there are at least three instances in which same-sex couples have been able to, or a surviving member of a same-sex couple, have been able to have their common law marriage before 2014. Before ceremonial marriage [was legalized], to get recognized. So it has this new interesting life in Pennsylvania, and I suspect it’s being raised in other states. Because there are some people who — for example, in one of the cases,the person died before a six-month requirement of marriage had been hit in order to get survivor's benefits. But the couple had been together for years and had a commitment ceremony and that was recognized, and the person was allowed to get the survivor benefits. So the ones I know about, there’s one in Bucks County, Chester County and Montgomery County. They issued orders. Those are the ones I know about right now.
Now that same-sex marriage is legal, that trickles to common law marriage?
I think it’s because the Whitewood decision recognized it was a violation of the constitutional rights of same-sex couples, to prevent them from being married. And so even though it was only declared in 2014, that means it was always a violation of same-sex couples to deny them marriage. So if they'd done what it took to have a common law marriage before that, before 2005, then we should retroactively recognize that they really had a marriage. That it was a real common law marriage. I don't think there will be a lot of people who benefit from this because most people are going to be able to benefit from ceremonial marriage now. And there’s also that ‘It has to be something that happened before 2005' [stipulation]. For people in that situation, however, it makes a huge difference whether common law marriage was recognized. So if you’re not — for example, one of the other cases, by the time the Whitewood decision came down, one of the members in the relationship was too sick to be able to actually enter into a ceremonial marriage and so it was only the common law marriage that was the basis for inheritance and other rights that come along with being a spouse.
Anything I missed?
Actually, the Pennsylvania legislature eliminated common law marriage after a judicial decision by the Commonwealth Court of Pennsylvania in 2003 that prospectively got rid of common law marriage. I don’t want to say 'repealed' because it wasn’t a statute, but it sort of gave legislative force to the eradication of common law marriage. And the court's reasoning was in part based on the difficulty in evidence that courts felt they were facing in order to determine whether it was a valid common law marriage. Because if you have a ceremonial marriage and you have that marriage certificate, that’s an easy way to determine whether someone is married or not. But if you have to look at what people say to each other and how they hold themselves out in the community, it can be an extensive hearing and, sometimes, the evidence is not all in the same direction and courts have to decide what to do with ambiguous or conflicting evidence. That seemed to be one of the primary motivations to get rid of it. And the court also believed that people have ready access to ceremonial marriage.
The Pennsylvania legislature codified the elimination of common law marriage and made the date Jan. 1, 2005 — so, it was a judicial decision followed by legislative action.