Studies have shown that cohabitation without or prior to marriage is increasing in the United States. The Commonwealth of Pennsylvania is one of few states that still recognizes common law marriages, a union that is deemed a marriage without going through the formal civil or religious ceremony. However, even in Pennsylvania, the creation of a common law marriage is not without limitation.
A common law marriage will only be recognized if it was entered into or formed prior to 2005. Many people believe that if you reside together for 7 years, you are married at common law. However, there is no magic time frame after which cohabitation will lead to a common law marriage. Instead, where both parties are available to testify as to whether the marriage exists, proof of a common law marriage is established when there is clear and convincing evidence that the parties exchanged words in the present tense with the purpose of establishing the husband and wife relationship. The burden of proving a marriage exists, in this situation, is with the party who is claiming the existence of a marriage. Where the parties are not present to testify (often in the situation where one party is deceased and the other party cannot testify because of a legal rule that says a surviving party cannot testify in conflict with the decedent’s wishes), proof of a marriage is established when there is sufficient proof of cohabitation and reputation of a marital relationship.
In a recent case which shows the importance of a determination of common law marriage, “Wife” filed a divorce action against “Husband,” claiming the parties were married at common law in 2002. Through this divorce action, Wife was seeking a distribution of the couple’s assets as well as alimony. In this case the parties had lived together for approximately 23 years, they had a child together, they shared finances, introduced each other as husband/wife, they were beneficiaries on each other’s retirement plans, owned a house together, and otherwise entered into behavior which would be indicative of a marital relationship.
In support of her position that they entered into a common law marriage on August 28, 2002, Wife presented a document signed by the parties on that date called “Affidavit Attesting to the Existence of Common Law Marriage,” which was required by Husband’s employer to add Wife to the health insurance policy. The Affidavit document included language that the parties “hereby affirm that we have expressly agreed to and entered into a common law marriage” and other such language. Both parties testified that they signed the document to get Wife on the health insurance policy.
In reviewing this information, the court found that no marriage existed. While there was certainly evidence of a marriage-like relationship, there was simply no evidence of the exchange of words necessary to establish that relationship. Wife could not or did not present any evidence that the words were exchanged. If she had presented any evidence of that, and Husband denied it or had a contradictory view of the conversation, then the testimony about cohabitation and reputation of marriage could have been used to support Wife’s position. But, since both parties testified that the words were not exchanged – and the court stated the Affidavit was not sufficient to meet this test because the words were past tense (we “have expressly agreed”) and not present tense – that was the end of the question.
Of course, the determination of whether a marriage exits is a fact-specific one. With the 2005 benchmark date in mind, presumably a couple who got together in late 2004 and expressly said “I intend to be married to you” or some words along those lines may be married, while, as with the couple in the case discussed above, a couple who got together in 1994 and shared their lives for over 20 years are not. If you believe you are married at common law and are contemplating divorce, you should contact an attorney who is familiar with divorce and family law.