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History
of Common Law Marriage,
Life Partners & Same Sex Marriages
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There are really two types of
common law marriages. The "traditional" common law
marriage is one which is entered into without formalities. This
type of marriage is usually defined as the intent to be married
combined with living together and holding one's self out to the
world as married. States which recognize the
"traditional" form of common law marriage include (as
of 1998) Alabama, Colorado, District of Columbia, Georgia, Idaho
(only if before 1-1-96), Iowa, Kansas, Montana, Ohio (only if
before 10-10-91), Oklahoma, Pennsylvania, Rhode Island, South
Carolina and Texas.
A different kind of common law marriage is represented by the
situation where a valid marriage is formed from an invalid
marriage after the impediment is lifted. For example, a party
might be underage at the time of the marriage. Continued
cohabitation as husband and wife after the underage party
attains majority, however, results in the marriage ripening into
validity where this form of common law marriage is recognized.
Note that the courts may be reluctant to find a valid marriage
when the parties have entered into a relationship knowing it to
be polygamous, even after the impediment to marriage has been
terminated.
In those states which recognize "traditional", common
law marriage, there are several requirements for the formation
of such a marriage. The first is the express mutual consent and
intent to be married. In addition, parties must hold themselves
out to the world as being married or "must openly and
professedly live as husband and wife" in most of these
jurisdictions. While intent may certainly be proven by words,
the incidence of "swearing contests" between parties
who dispute whether or not there was an intent to be married
have induced the courts to rely on parties actions and conduct
at least as much as there were in trying to resolve this issue.
Was there a joint bank account? Was the name on it "Mr.
& Mrs."? How did the lease read -- "Mr. &
Mrs."? By the evidence of the common law marriage involves
examining documents such as these to divine the intent of the
parties. There is no specific length of time recognized
generally as a requirement for the formation of the common law
marriage.
Even if the state does not recognize common law marriages
itself, it will usually recognize one that was formed in a state
which does recognize common law marriages. In addition, most
states will recognize a common law marriage if the parties at
some time during their period of living together resided in a
state that allows the formation of common law marriages. Even if
the parties begin living together in a state that does not allow
the formation of common law marriages, they can inadvertently
form a common law marriage, so long as the requisite
"holding out," intent and cohabitation are present, if
they move to a state that allows common law marriages. On the
other hand, a temporary visit to a state that allows the
formation of a common law marriage, so long as the parties are
domiciled in another state which does not recognize them,
usually will not result in a valid common law marriage.
Because a common-law marriage is not formally recorded, the
couple, if challenged, may have to prove the existence of their
marriage contract. They may have to prove that they live
together as man and wife and present themselves to the public as
a married couple. Where recognized, a common-law marriage is as
valid as a typical marriage. Ascertain if the state/country you
are living in recognizes common law marriages.
There are four requirements for a valid
common law marriage. Just living together isn't enough to
validate a common law marriage:
- You must live together.
- You must present yourselves to others
as a married couple. Some ways of doing this are by using
the same last name, referring to one another as husband or
wife, and filing a joint tax return.
- Although not defined, you have to be
together for a significant period of time.
- You must intend to be married.
In the U.S., every state is
Constitutionally required to recognize as valid a common-law
marriage that was recognized in another state.
Eleven states and the District of Columbia currently recognize
common-law marriages. Each of these jurisdictions has unique
requirements for common-law marriage:
- Alabama: The requirements for a
common-law marriage are: (1) capacity; (2) an agreement to
be husband and wife; and (3) consummation of the marital
relationship.
- Colorado: A common-law marriage may be
established by proving cohabitation and a reputation of
being married.
- District of Columbia: The requirements
for a common-law marriage are: (1) an express, present
intent to be married and (2) cohabitation.
- Iowa: The requirements for a common-law
marriage are: (1) intent and agreement to be married; (2)
continuous cohabitation; and (3) public declarations that
the parties are husband and wife.
- Kansas: For a man and woman to form a
common-law marriage, they must: (1) have the mental capacity
to marry; (2) agree to be married at the present time; and
(3) represent to the public that they are married.
- Montana: The requirements for a
common-law marriage are: (1) capacity to consent to the
marriage; (2) an agreement to be married; (3) cohabitation;
and (4) a reputation of being married.
- Oklahoma: To establish a common-law
marriage, a man and woman must (1) be competent; (2) agree
to enter into a marriage relationship; and (3) cohabit.
- Pennsylvania: A common-law marriage may
be established if a man and woman exchange words that
indicate that they intend to be married at the present time.
- Rhode Island: The requirements for a
common-law marriage are: (1) serious intent to be married
and (2) conduct that leads to a reasonable belief in the
community that the man and woman are married.
- South Carolina: A common-law marriage
is established if a man and woman intend for others to
believe they are married.
- Texas: A man and woman who want to
establish a common-law marriage must sign a form provided by
the county clerk. In addition, they must (1) agree to be
married, (2) cohabit, and (3) represent to others that they
are married.
- Utah: For a common-law marriage, a man
and woman must (1) be capable of giving consent and getting
married; (2) cohabit; and (3) have a reputation of being
husband and wife.
- New Hampshire recognizes common law
marriages only for the purposes of inheritance. In any other
state the only marriage that is recognized as valid is an
official one. However, if you enter into common law marriage
while living in one of the states that permits them, and
then move to a state that doesn't, the new state should
recognize your marriage as being legally entered into in the
other state.
Another thing to consider is that it takes
more than just living together to have a common law marriage.
Not every couple that lives together intends to be married. The
intention to be married is one of the required elements to
create a common law marriage. Another element that is necessary
to create a common law marriage is that the couple must present
themselves as married to others. This means referring to each
other as the other's husband or wife, using the same last name,
filing joint tax returns, and things of that nature.
Suppose you opt for the common law marriage believing that, if
the relationship ends, you'll avoid a nasty divorce proceeding.
This is a bad reason to have a common law marriage. A common law
marriage is legally recognized as a marriage and the way to end
it is by getting a divorce. You won't be able to escape the
formalities on this end as you did at the beginning. In fact you
might find your divorce a little more complex, because first
there will have to be a trial to prove whether or not you were
married. If the court decides that your relationship was a
common law marriage, then you'll need to get a divorce to end
it.
The problem of proving whether or not you are married under the
"common law" can plague you even if you don't want a
divorce. This is because the marriage relationship involves
various legal rights, and if you want to exercise any of those
rights, you may find yourself being challenged in court.
Consider the following scenarios.
Your common law wife is killed in an automobile accident. The
accident is the other driver's fault and you want to file a
wrongful death lawsuit so that you can be compensated for your
loss and your deceased wife's loss. In order to have standing to
bring the suit, you need to have a legally recognized
relationship to the deceased. The issue of whether or not your
relationship constituted a common law marriage may end up being
litigated.
Your common law husband dies without a will. You don't have any
children together. You could end up in a court fight with his
parents (or other close relatives) about who should inherit his
property. They will be claiming to be entitled to his property
because the two of you were never married. You will be trying to
prove that your relationship constituted a common law marriage.
These and various other legal rights are impacted by the
marriage relationship. Having a common law marriage could
require you to go to court to prove your married before you can
exercise your rights as husband or wife. If your intent is truly
to be married, you are probably better off avoiding a
"common law" marriage.
Tennessee has employed a doctrine of
"estoppel to deny marriage." See Note, Informal
Marriages in Tennessee - Marriage by Estoppel, by Prescription
and by Ratification, 3 VAND. L. REV. 610, 614-15 (1950).
- According to OCC, estoppel is based
upon the common law that may apply under many circumstances,
but a common one is where an individual has obtained an
invalid divorce. The estoppel principle is applied to an
invalid or ineffective divorce and is used to prevent
parties to such divorce from later asserting that they are
still validly married. Thus, the parties are precluded from
denying that the divorce is valid for Social Security
purposes. The need to develop estoppel most often occurs in
claim situations where a divorce was obtained in a State or
foreign country where neither party was domiciled. The need
may also occur in situations where divorce proceedings were
defective. For example, an otherwise valid divorce was
obtained but it was ineffective because the judge failed to
sign it, the final decree was not properly recorded, or the
court costs were never paid. Even though such a divorce is
not valid under State law, if the estoppel principle
applies, the divorce is treated as a final divorce for
Social Security purposes.
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According to Webster's New
Collegiate Dictionary, a family is "the basic unit in
society having as its nucleus two or more adults living together
and cooperating in the care and rearing of their own or adopted
children." Despite this all-inclusive definition, a lesbian
or gay couple -- with or without children -- is not the image
conjured up when most people create a picture of a family.
Nevertheless, lesbian and gay couples (and
their children) consider themselves families. And over the past
several decades, same-sex couples have sought societal
recognition of their families. It began in the early 1970s, when
lesbian and gay couples applied for marriage licenses, asked
courts to allow one partner to adopt the other, and took other
steps to legally cement their relationships. Most of these
efforts failed.
By the mid-1980s, the emphasis changed to
seeking "domestic partnership" recognition for
same-sex couples from both municipalities and private companies.
This effort continued, with increasing strength, in the 1990s.
And the desire to marry has again emerged. Some couples are
applying to the state for marriage licenses and suing their
states when their requests are denied. In Vermont, one such
lawsuit resulted in the creation of a state law that permits
same-sex couples to register their partnership as a "civil
union," which entitles them to all the rights and benefits
granted to married couples.
It's interesting to note that the lesbian
and gay community is itself divided over the marriage issue. The
community consists of an enormous number of people of every
conceivable age, race, religion, lifestyle, income and opinion.
It is, of course, impossible to convince such a large and
diverse group of people to throw their political weight behind
any one issue. For example, some argue that regardless of any
individual's desire to get married, the community as a whole
should support official recognition of their right to do so. On
the other hand, there are those who decry marriage as a sexist
and patriarchal institution that should be avoided at all costs.
Still others are enjoying a higher level of economic prosperity
than the average American and don't feel constrained in any way
by a lack of marriage rights. Another group doesn't want to risk
repercussions while perhaps another group just doesn't care one
way or the other.
Lesbian and Gay Marriage
In 1978, the United States Supreme Court
declared marriage to be "of fundamental importance to all
individuals" (Zablocki v. Redhail). The court
described marriage as "one of the 'basic civil rights of
man'" and "the most important relation in life."
The court also noted that "the right to marry is part of
the fundamental 'right to privacy'" in the U.S.
Constitution.
Although marriage has been declared a
fundamental right, no state yet recognizes same-sex marriages.
Some states have passed laws specifically barring same-sex
marriages, and the number of states with such laws is
increasing. In recent years, the best news in the fight for
recognition of same-sex unions came from Vermont, when the
Vermont Supreme Court ordered its state legislature to come up
with a system providing same-sex couples with traditional
marriage benefits and protections. (Baker v. State, 744 A.2d 864
(Vt. 1999).)
In response to the Supreme Court's
mandate, the Vermont legislature passed the Vermont Civil Union
law, which went into effect on July 1, 2000. While this law
doesn't legalize same-sex marriages, it does provide gay and
lesbian couples with many of the same advantages reserved for
married people.
- use of family laws such as annulment,
divorce, child custody, child support, alimony, domestic
violence, adoption and property division
- the right to sue for wrongful death,
loss of consortium and any other tort or law related to
spousal relationships
- medical rights such as hospital
visitation, notification and durable power of attorney
- family leave benefits
- joint state tax filing, and
- property inheritance without a will.
These rights apply only to couples
residing in Vermont. And even for Vermont residents, this new
civil union law does not provide same-sex couples with rights
and benefits provided by federal law -- for example, same-sex
couples cannot take advantage of Social Security benefits,
immigration privileges and the marriage exemption to federal
estate tax.
It’s too soon to tell what effect the
Vermont Civil Union law will have on the nation. The law allows
couples that aren’t Vermont residents to register their civil
unions in Vermont, but it is doubtful that other states will
recognize their status. (However, two other states, California
and Hawaii, have already passed comprehensive domestic
partnership laws offering benefits similar to those available in
Vermont.) Although the U.S. Constitution requires each state to
give “full faith and credit” to the laws of other states --
for example, by recognizing marriages and divorces made across
state lines -- the federal Defense of Marriage Act (DOMA),
passed in 1996, expressly undercuts the full faith and credit
requirement in the case of same-sex marriages. Because of the
apparent conflict between the DOMA and the Constitution, equal
rights advocates and their opponents would like to get a case
before the U.S. Supreme Court to decide the issue of same-sex
marriage once and for all.
Benefits for Same-Sex Couples in
California, Hawaii and Vermont
If you live in one of these three states,
you can take advantage of laws that allow you to register your
partnership and receive many of the benefits granted to married
couples.
California. To register a domestic
partnership in California, visit the California Secretary of
State website at www.ss.ca.gov.
(Look under "Special Programs Information.")
Hawaii. To learn about registering
your partnership in Hawaii (where it's called a "reciprocal
beneficiary relationship"), visit the website of Hawaii’s
Vital Records office at www.state.hi.us/doh/records/rbrfaq.htm.
Vermont. To read the official guide
to Vermont's civil union law, go to www.sec.state.vt.us
and click on "Publications."
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History of Same-Sex Marriage Attempts
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RELIGION HAS NO PLACE IN
GOVERNMENT
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