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Joanna Grossman on Common-Law Marriage: A Nineteenth-Century Relic with Continuing Relevance

We pick up Joanna Grossman's article at this point ...

Common-Law Marriage Today

Today, common-law marriages can be established in Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia. Moreover, six additional states recognize common-law marriages that were established prior to the date that the relevant state's legislature abolished the status. Thus, for example, common-law marriages established in Oklahoma prior to November 1, 1998 are valid.

(Readers who watch the ABC drama Grey's Anatomy might note that Washington State is not on this list. Thus, Derek and Meredith, who purported in last year's season finale to get married by "post-it note" because they couldn't find the time to sneak away from the hospital to Seattle's city hall, are not, even in TV-land, actually married.)

But common-law marriage sometimes reaches even further – for most states that have abolished common-law marriage nonetheless will give effect to such a marriage if it was validly established elsewhere. This is consistent with the general principles of interstate marriage recognition, which I have discussed in many previous columns, including here and here. The "place of celebration" rule, which every state follows, provides that a marriage is valid everywhere if it is valid where celebrated.

There are exceptions to this general rule of recognition, carved out for marriages that violate either "natural law" or a specific statute barring extraterritorial recognition. But, for the most part, courts have found that common-law marriages are governed by the general rule — that is, the rule that they will be recognized if valid where celebrated — rather than the exceptions. New York, for example, has specifically ruled that common-law marriages that were validly established elsewhere are valid in New York, even though the legislature abolished common-law marriage within the state in 1933. (Recognition can be granted even when a New York couple spends only a short time in a sister state, as long as they meet the state's common-law marriage requirements while there.)

That approach to recognition led to a sensational trial in a New York court in 1989 between actor William Hurt and ballet dancer Sandra Jennings. Although the couple resided in New York, they spent a summer living together in South Carolina, while Hurt filmed the hit movie The Big Chill. After they broke up, Jennings sued for a share of his earnings, claiming that they had established a common-law marriage while living in South Carolina, which still recognizes such unions. The New York court would have given effect to a common-law marriage under these circumstances, out of deference to South Carolina's marriage laws, but the court found that Jennings had failed to prove the couple had, in fact, agreed to be married.

Key to Hurt's successful defense was his proof of the fact that the entire cast of The Big Chill knew that he and Sandra were not married. Why does this point matter? The answer is that, although the agreement to marry is the crux of a valid common-law marriage, there is hardly ever reliable evidence of such an agreement. Common-law marriage cases thus typically turn on whether a couple has "acted married" and held themselves out to the public as a married couple: Did they cohabit? Did they refer to each other as "husband" and "wife"? Did they tell people they were married? Did they have a joint checking account and incur joint expenses? Did they exchange rings or take a common surname? (This multi-question, fact-intensive inquiry, moreover, cannot be avoided. There is not, contrary to popular myth, any particular length of time, such as seven years, that is necessary to establish a common-law marriage.)

In re Estate of Duval: Were Duval and Hargrave Mere Paramours, or Spouses?

Read the entire article at Writ.

Relationships and Going Places, Legal, Senior Women Web

Joanna Grossman on Common-Law Marriage: A Nineteenth-Century Relic with Continuing Relevance

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