Married and Divorced on the Same Day!

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.