Common
law marriages served laudable functions, legitimizing relationships (and the
resulting children) and permitting third parties to rely upon what appeared to
be a marriage in dealing with the putative husband and wife. However, the
concept is often misunderstood and the subject of confusion.
To create a common law marriage, certain legal requirements must have been met.
First, both parties were required to have the capacity to marry, that is, to be
single adults not too closely related to one another as required by state law.
Each member of the couple was required to state to the other that they were
married in terms of present tense. "We are married" was acceptable.
"We will be married" was not. The couple had to cohabit (no specific
time period was required) and hold themselves out to their community as husband
and wife.
Once
a common law marriage was established, the union was legally indistinguishable
from a ceremonial marriage -- one performed after the couple obtained a
marriage license, and presided over by a licensed clergy member or civil
authority. In order to terminate a common law marriage, a divorce was required.
Common
law marriage was not unusual in the United States particularly during the
period of western expansion. Often marriage licensing procedures were difficult
or non-existent, as were clergy or civil officers to perform a ceremony.
However, as the West was settled, the necessity to maintain the institution of
common law marriage became less and less.
Ohio
abolished common law marriage effective in October, 1991. However, common law
marriages entered into prior to that date in Ohio are recognized, as well as
common law marriages which were valid in the states in which they came into
being.
During
my eight years on the Domestic Relations Court bench, I only had one common law
marriage case to deal with. "Wife" had sued "Husband" for
divorce, alleging that the parties had been married by common law.
Procedurally, the case came before me to consider Husband's Motion to Dismiss
the divorce, claiming the parties had never been married. The parties had
already agreed on a settlement; however, it was only to go into effect if I
determined they had been married. Otherwise, there would be no division of the
assets accumulated while the parties were together, the most significant of
which was the business established by Husband.
Wife
admitted that no marriage license had been obtained, and that the two of them
had never had a legal, ceremonial marriage. However, her counsel set about
proving the elements of a common law union. It seems that the parties had
purchased rings together, and had presented each other with a ring and declared
that they were now married. In addition, they had lived together for many
years, their friends and neighbors believed them to be married, and they had
filed their federal tax returns jointly.
Throughout
the hearing, Husband's mother sat in the back of the courtroom, dressed
entirely in black, as though in mourning over the possibility that her beloved
son was married to "that woman." In her hand she held a rosary and
her lips moved constantly in silent prayer.
After
hearing the evidence, I held that Wife had in fact established that the parties
were married by common law. We immediately proceeded with a final hearing to
adopt the agreement the parties had conditionally arrived at, and their divorce
was granted.
Husband
turned to the back of the courtroom and declared: "How 'bout that, Mama?
Married and divorced on the same day!" Mama's sobs could be heard by
everyone in the room.
