by Wilton H. Strickland

A large number of people who contact me need help with family matters, and on a few of these occasions I’ve heard questions about a mysterious doctrine that bestows marriage on couples without their experiencing the joy of reciting homespun vows, booking lavish venues, haggling over food and decorations, or otherwise spending a small fortune to commemorate the event. The doctrine indeed exists and bears the archaic name of “common law” marriage, which signifies that it is not codified by statute but rather recognized by courts as a habit or custom of the people, i.e, the “commons.”

However antiquated the doctrine might sound, it lives on in several states and deserves serious attention. The states currently recognizing at least some form of common law marriage are as follows:

• Alabama
• Colorado
• District of Columbia
• Iowa
• Kansas
• Montana
• New Hampshire
• Oklahoma
• Rhode Island
• South Carolina
• Texas
• Utah

A few other states used to recognize common law marriage but no longer do, unless such a marriage occurred before the doctrine was repealed. So, if you have an old flame and want to give him or her a big surprise, you might be able to in the following jurisdictions:

• Florida (if before January 1, 1968)
• Georgia (if before January 1, 1997)
• Idaho (if before January 1, 1996)
• Indiana (if before January 1,1958)
• Ohio (if before October 10, 1991)
• Pennsylvania (if before January 1, 2005)

To shed light on just how a common law marriage takes place, I’ll discuss the approach taken by my current state of residence, Montana. Please note that different jurisdictions may have different requirements; this summary is to provide a general overview and share some tools to learn more if you like.

The main requirement of common law marriage is that the parties behave themselves as if they were husband and wife. You will not suddenly find yourselves trapped in a common law marriage, for the doctrine requires intentional and overt conduct. This requirement can be broken down into three components.

First, the parties must be competent to enter marriage. That is to say, they must be of legal age, sound mind, and unmarried to anyone else. It does not appear from the case law that homosexual couples can be married by common law, so the doctrine is limited to heterosexual couples.

Second, the parties must assume a marital relationship by mutual consent and agreement. The consent does not need to be expressed verbally or in any particular form, but can be implied from conduct. For example, a common law marriage was found to exist where the woman wore an engagement ring that the man had given to her; the man designed a wedding ring for her; the couple had a grandfather clock that was engraved with their initials and displayed in their home; and the woman felt as if she was married. In re Estate of Hunsaker, 291 Mont. 412, 419-20, 968 P.2d 281, 285-86 (1998).

Third, the parties must confirm their marriage by cohabitation and public repute. Cohabitation alone isn’t enough, since the parties must also hold themselves out to the public as husband and wife. This can be gleaned from a variety of factors, none of which are determinative on their own. For example, a man who refers openly to his cohabiting partner as his “wife” — coupled with a general public impression that they are married — can suffice to establish a common law marriage even though she never changed her last name; she did not name him as a beneficiary on any financial instruments; she filed her tax returns as a single person; he described himself as single in his will; and he told his attorney that he was single. Hunsaker, 968 P.2d at 286-87.

Contrary to popular belief, there is no set term of years or other period when all of these factors must take place. The marriage arises as soon as the factors co-exist during at least one point in time, regardless of whether that’s a week or a decade after the couple first met.

It’s important to pay attention to these factors because if they are satisfied and create a common law marriage, you cannot simply walk away from it if things go sour. No, you will have to go to court for a very modern divorce, or risk being legally barred from marrying someone else and/or committing bigamy if you do. Issues such as alimony, property division, and child support (if applicable) will have to be determined by a court.

Reasonable minds can and do differ on whether common law marriage should be brought to an end. For my part, I like it because words and deeds should carry consequences, but that’s a topic for another day.