What is Common Law Marriage?
Common law marriage has a history dating back to medieval England, where it was believed that no one should be coerced into marriage. Instead, parties were permitted to marry by agreement, the marriage just required that the parties intend to be married, live together, and hold themselves out to the community as being married.
Pennsylvania adopted common law marriage in the colonial era, and it was part of the state’s law until recent years. Pennsylvania did not require parties to be married under any particular formality, only that they intended to be married and met the other common law marriage requirements. However, in the 1988 case of Hodge v. Hodge, 525 Pa. 100, 579 A.2d 954 (1988), the Pennsylvania Supreme Court determined that, after January 1, 2005, provisions of the Pennsylvania Marriage Law Act abolishing common law marriage applied to parties who entered into a common law marriage before January 1, 2005. Instead, the Court used a phrase which suggested that a common law marriage was not valid before January 1, 2005, although parties who entered into a common law marriage had filed a complaint or other pleading with the court before January 1, 2005.
Controversial decisions like Hodge often lead the Pennsylvania Legislature to take action, and in 2005, the Legislature passed 23 Pa.C.S.A § 1103, which provided that:
(a) General rule.-No common law marriage will arise in this Commonwealth after January 1, 2005.
(b) Common law marriages contracted before January 1, 2005.—Common law marriages entered into prior to January 1, 2005, are hereby validated if, on or before January 1, 2005 , either spouse has filed a written instrument with any court of record or has filed a complaint or other pleading with any court.
(c) No modification or retroactive application of divorce decree.-Nothing in this section shall be construed to modify or apply retroactively the effect of a divorce decree which has become final prior to January 1, 2005.
The legislative history of section 1103 shows that the Courts and the Legislature intended to reconcile Hodge with the need for parties to have certainty about their marital status. Thus, any common law marriage after January 1, 2005, must comply the requirements of Pennsylvania’s Marriage Law (23 Pa. C.S.A. § 1101 et seq.), including Pennsylvania’s marriage license requirements.
Although the language in 1103 referring to common law marriages "contracted" before January 1, 2005, suggested that a common law marriage might arise after January 1, 2005, the courts have largely rejected this claim. In Sweeney v. Sweeney, 15 Pa. D. & C. 5th 500 (2008), a Montgomery County judge reasoned that section 1103(e) invalidated even common law marriages where any action had been filed before January 1, 2005. See also In re: Estate of Herbert M. Apfelbaum, 2011 Pa. Dist. & Cnty. Dec. LEXIS 79 reviewing Sweeney and concluding that the Pennsylvania Supreme Court "clearly" and "broadly" intended to abolish common law marriages in Pennsylvania. The Pennsylvania Superior Court also cited section 1103(e) in In re Estate of Kock, 982 A.2d 1234, 1242-43, 2009 PA Super 67 (Pa. Super. Ct. 2009). So, although there is currently no unequivocal, published decision on the subject, the Superior and Orphans’ Courts have invalidated common law marriages where any action has been filed prior to January 1, 2005.
Common Law Marriage Statutes in PA
In Pennsylvania, it is the policy of the state not to recognize a common law marriage. Instead, common law couples must enter into a ceremonial marriage in order for the state to acknowledge their marriage. Under the former law, common law marriages were legal in Pennsylvania if one or both parties made the decision to live together for at least three years and met the following conditions: each party must be competent to consent to the marriage, be of the age of consent, and hold themselves out to the public as husband and wife. Marriage licenses and ministers were not needed.
Due to problems with those who entered into a common law marriage yet failed to notify the state, the matter was brought before the Supreme Court of Pennsylvania in the 2003 case of Stodghill v. Stodghill, which ended the legal recognition of common law marriages entered into after January 1, 2005. The effect of this ruling created a lack of certainty as to the recognition of common law marriages that were entered into between January 2005 and September 2007, as in that time no new common law marriage may be established. However, the Commonwealth still recognizes those common law marriages entered into prior to January 1, 2005, as valid.
History of Pennsylvania Common Law Marriage
Section 291 of the Pennsylvania Marriage Law codifies the requirement of a marriage license prior to marriage (i.e., an officiated marriage). Section 291 supersedes all prior decisions that were based on the common-law concept of marriage under Pennsylvania Law.
Since In Re Beck, 493 A.2d 1012 (Pa. Super. Ct. 1985), the courts of Pennsylvania have "expressly rejected the recognition of common-law marriage when the husband and wife have not been cohabitating since before January 1, 2005." Id. at 1013 n.3. Therefore, all cases cited in pre-Beck decisions that hold that the common-law concept of marriage is part of Pennsylvania law are no longer good law and do not apply to marriages where the parties were residing together after January 1, 2005.
Prior to December 16, 2004, common-law marriage was generally recognized in Pennsylvania if the agreement was made prior to the parties’ marriage and they subsequently cohabited in Pennsylvania. At that time, the most recent significant case to establish the Pennsylvania common-law marriage was Weaver v. Meadville Loggings Co., 51 A. 628 (Pa. 1902):
In [a common-law marriage], there is an agreement followed by cohabitation, which brings it into existence. The agreement is the most essential thing; without that, there can be no marriage … but where, as in this case, the evidence shows that the parties intended marriage, and that they lived together as husband and wife … that is enough.
Id. at 629. (emphasis added). When cohabitation is proven, the parties’ evidence of contract for the common-law marriage is enough to validate the marriage.
In 2004, our General Assembly amended the Marriage Law, 23 Pa.C.S.A. §§ 1101-1903 (The statute). As a result of the statute, all new marriages are entered into by using a marriage certificate, rather than by common-law marriage, and common-law marriage is not valid for new marriages after January 1, 2005.
In Remblak v. Brish, 1850 WDA 2010 (Pa. Super. Ct. 2011), the Superior Court held that "the General Assembly clearly did not intend to recognize retroactively any purported common-law marriage entered into after the effective date of the Act," but left "open the question of the validity of any common-law marriage that is alleged to have occurred before the effective date of the Act[.]"
Rights and Responsibilities
"A common law marriage has the same rights and responsibilities as a traditional marriage," says family law attorney Irwin Hoffman. "Many people automatically think of the parties’ common law marriage as being less binding in some way than if there was a marriage license involved, but the fact is there are no differences whatsoever. It’s a common law marriage, and that is indeed a valid marriage in Pennsylvania." Because a common law marriage is considered a valid marriage, all of the same legal benefits, rights, and responsibilities are applicable. For example, health insurance plans, capital gains on joint property, and the division of property in the event of a divorce all follow the same procedures as those matters do with a traditional marriage. Couples must transfer property as they both see fit, and all gifts and property obtained while together become marital property if the common law partner is considered a spouse under the marital law. When a common law relationship ends, the same issues arise as with any other divorce: distribution of assets and debts, alimony, and division of parenting responsibility for children. The only difference is that health benefits may need to be adjusted, as one partner in a common law marriage may not be entitled to add their formerly common law married spouse to their health plan.
How Common Law Marriages Were Established
Pennsylvania, before abolishing common law marriages, used to recognize them in accordance with the following criteria: (1) consent of the parties to be married; (2) acting and believing to be married; and (3) cohabitation. The combination of these requirements constituted a marriage at common law; the full definition of a common law marriage in accordance with Pennsylvania’s courts would be:
- (1) [t]he parties are legally capable of entering into a marriage;
- (2) [t]hat there be a mutual promise to be husband and wife; and
- (3) [t]hat there be actual cohabitation at some place, and that at least prima facie the reputation of being married exists.
The leading Pennsylvania case explaining what a common law marriage is, is the case of In Re Estate of Esso:
The parties to a common law marriage must be lawfully able to contract a valid, formal marriage; they must mutually assent to a present marriage; and they must live together cohabitation and reputation as being married.
Cohabitation means residing together as husband and wife in the same household . Other elements for a common law marriage which seem to be required but not fully discussed by our courts are a common residence, an actual intention to live together as husband and wife, and an exclusive relationship as husband and wife. Cochabitation does not require a specific place or residence and a lawfully married couple may also maintain separate residences while cohabiting.
Although the parties must be legally able to marry, it is not necessary that they be free from a prior marriage. An impediment to the marriage in the existence of a prior marriage may be remedied by the freedom of both in the first marriage, death or divorce.
We note that in the three listed elements a party may be capable of marrying, assent to a present marriage, and have cohabitation and reputation of being married, yet still not be married under another impediment to matrimony. The impediment may be an age restriction or a consanguinity.
In a nutshell, what this means is that the person seeking to have his or her common law marriage recognized must establish the 3 elements above, while the person denying the validity of the common law marriage must establish any impediments to a valid marriage (e.g. divorce, underage marriage, death).
Effects of Abolishment & Current Options
Prior to January 1, 2005, Pennsylvania recognized common law marriages. On that date, the Pennsylvania legislature abolished common law marriage as a means of determining marital status and the Pennsylvania Supreme Court made the abolishment retroactive to January 1, 2005. The abolishment, however, did not affect any common law marriage entered into prior to January 1, 2005. As such, spouses must be able to prove their marriage has occurred after January 1, 2005 is by providing a marriage certificate.
From January 1, 2005 forward, if a couple who is cohabitating – meaning living together in a relationship similar to marriage – has a desire to receive legal recognition of their relationship outside of a common law marriage, they have three options:
- Enter into a Covenant Marriage. A covenant marriage is one that is entered into following counseling designed to ensure that the parties are aware of the responsibilities of marriage, including the financial responsibilities associated with marriage.
- Enter into a Domestic Partnership: A domestic partnership is a legally recognized relationship comprised of either two persons of the same or opposite sex. In order to qualify as a domestic partnership, the couple must live together for one year and be each other’s primary partner (a concept more easily satisfied by same-sex couples than heterosexual couples). In addition, the couple must not be married or related within the degrees prohibited by Pennsylvania law. Under no circumstances may more than two individuals be considered a domestic partnership at the same time. If a couple fulfills the requirements of domestic partnership, they are entitled to a multitude of rights which might otherwise be available only to married couples.
- Enter into a Cohabitation Agreement: Cohabitation agreements are similar to prenuptial agreements in that they are negotiated but are entered into by people who are not married yet who desire to obtain court determination of the matters set forth in the agreement. Cohabitation agreements, however, differ from prenuptial agreements in that a cohabitation agreement is entered into between the parties and must be filed with the court to take effect while a prenuptial agreement applies to property held both before and during the marriage. Cohabitation agreements do not apply to property held solely prior to the filing of the agreement and a prenuptial agreement has no such limitation.
Legal Guidance and Resources
Given the complexity of common law marriage and its unique legal status in Pennsylvania, it is crucial for couples to seek the guidance of experienced Pennsylvania divorce attorneys should they determine that they are or may be subject to an enforcement action by one or both parties. Another significant issue which impacts common law marriage is third party claims by accident related insurance claims, social security claims, hospital claims and a variety of other claims for which the couple did not apply, but in which a claim is made as a result of a third party’s assessment of the relationship, and where that assessment turns out to be faulty. There really is no law for third parties to follow in Pennsylvania when assessing whether to honor the couple’s assertions that they are in a common law marriage. For this reason, a third party may well ignore a strict enforcement action and, as such, impose significant risk for the parties The case law is clear that the burden of proof falls on the "married" party to establish their marriage in any given context. This means that if your spouse claims you are married, you need evidence to the contrary, and lots of it. Thank goodness for internet archive searches and genealogical research!
There is great risk to the parties once a common law marriage has been established and very little support from statute, case law or otherwise to advise the parties on what is or is not enforceable. For instance, many parties to a common law marriage believe that they have a right to enforce alimony provision, the same way if they had a ceremonial marriage. The statutes which guide divorcing parties, do not provide for any such relief. In fact, the alimony statute requires that a person be a "spouse" in order to have standing to make a claim for alimony. A marriage is defined by statute as being a contract between two parties. There is no reference to an ongoing obligation of care or support . That is as a matter of agreement; not a matter of law. Thanks to every day advances in medicine, real estate, business ownership and education, a married couple likely has a lot more assets than in years gone by. The relationships which build net worth are not always evenly developed on both parties’ parts. In that case, another family law complication exists. If both parties have lost employees, or even as it existed in the chemical independent trade in years past, couples lived apart for months at a time. One stayed back at home and the other traveled overseas to expand his business. The care and concern for the financial well being of a spouse certainly has a place in the common law marriage definition but as with everything else, no binding legal opinions are available to define where that lies. The parties themselves are left to their own devices to define their common knowledge indicators of why they are a married couple. This becomes tricky in today’s modern world.
To avoid these risks, we encourage couples to seek counsel as soon as you suspect that an assessment may be made as to your status. We also encourage couples to evaluate their own partnership with an eye toward considering the dissolution of the union, taking the long view, before beginning the life there embodies. A common law marriage action cannot be completed without a hearing. You will spend time supervised by a court or a judicial magistrate and examined under oath. In the event that you are able to establish the union was not valid, the time spent disclosing the most private details of everyday life runs the risk of conversation beyond the four corners of the examination. The legal landscape is dotted with cases in which the parties to a common law marriage were not private about their status before they split. It is not the judge or the magistrate who decides whether the evidence heard should become more broadly known. Again, you remain unprotected from the risk of disclosure and reputational injury.