What is a Common Law Marriage?
Common law marriage is a type of "non-ceremonial marriage" which was first recognized in Oklahoma in 1907. In the first case to recognize common law marriage in Oklahoma, the Oklahoma Supreme Court held, that "a marriage may be established without a formal marriage ceremony… if the parties have a ‘mutual agreement to do the things that the law prescribes.’" Village of Depew v. Rawlins (Okla. 1912). In 1932, the Oklahoma Supreme Court held that a common law marriage is a legal physical relationship made marriage by the parties’ mutual consent or implied mutual consent of the parties with proof of cohabitation and reputation as husband and wife. Woodring v. State Board of Equalization and Assessment . So, although a common law marriage does not require a traditional marriage ceremony, in Oklahoma, you must have evidence of both cohabitation and reputation as husband and wife.
In addition to establishing cohabitation and reputation as husband and wife, at least one of the parties to a common law marriage has to be "of legal age", which in Oklahoma is 18 years of age. In seeking to establish a common law marriage, if both parties have met the above requirements, there is an evidential presumption that the parties are married. If an evidential presumption of marriage arises, the burden then shifts to any opposing party who is disputing the existence of the marriage to prove that a common law marriage did not occur. Reynolds v. Reynolds (Okla. 2001); Şan Şimşek v. Şimşek; Hodge v. Smith, 54 Okla. 467 (1920).
Oklahoma’s Position on Common Law Marriage
Although other states have relaxed their view on common law marriage, Oklahoma has been comparatively strict. Historically, the state has adhered to a strong policy of denying common law marriage. Even though this policy remains unchanged, a handful of changes to past law have altered the way common law marriages are determined, and set stricter limitations on declaring a common law marriage void by mere subsequent status change.
The Oklahoma Supreme Court first embraced the policy of allowing common law marriage in Campbell v. Campbell in 1925 when it stated, "[I]t is the settled law of this state that a common-law marriage is as valid and legal as a ceremonial marriage." However, the Court quickly took a turn on this issue and, in 1931, decided Adams v. Dyer, 150 Okla. 128, 1 P.2d 99, classifying common law marriage as a "legal fraud" (a term that had multiple meanings in historical context) and subsequently overruling prior opinions that allowed common law marriage. From that decision until 1959, common law marriage was a legal impossibility in Oklahoma. Oklahoma again adopted common law marriage in 1959 in State ex rel. Comm. on the Judiciary v. Burd, 352 P.2d 906, a case which examined the public policy in regard to common law marriage in Oklahoma. In her dissent, Justice Halley noted that Oklahoma could not pass a law abolishing common law marriage, and the legislature never responded to the dissent by doing so. Thus, the legal status of common law marriages in Oklahoma remained valid. However, its status as a "legal fraud" no longer applied and, in 1999, the Oklahoma Legislature legislatively abolished the use of the term "legal fraud" in regard to common law marriage to give way to the more neutral term "void" in relation to common law marriage. The validity of a common law marriage in Oklahoma is not dependent on how long the parties hold themselves out as married. In order for a common law marriage to exist, there must be (1) an agreement to marry, (2) capacity, and (3) cohabitation. However, The Oklahoma Legislature codified a prohibition on common law marriages in 2013. While not applicable to existing common law marriages, it is important to note that no common law marriages entered into after November 1, 2013, will be recognized in Oklahoma.
What You Need for a Common Law Marriage in Oklahoma
Oklahoma recognizes a common law marriage if the following elements are present:
- Legal capacity of the parties to enter into a marriage;
- Mutual consent or agreement to enter into the relationship;
- Cohabitation;
and,
4. Holding themselves out to the public as husband and wife.
The term "held out" does not simply mean that the parties tell people they are married. It can also be established by conduct or public records such as joint tax returns, joint bank accounts, a common surname, joint credit cards, life insurance policies, and wills.
There is no specified period of time that a couple must live together in order to establish a common law marriage. The burden of proof is on the party who claims a common law marriage exists to prove all four elements.
Legal Realities Around Common Law Marriage
When a couple chooses to live together in Oklahoma without the benefit of marriage, there are certainly legal implications to consider. For instance, the ability for the partners to make decisions on behalf of one another in the event of incapacitation. Also the right to make medical decisions on behalf of a partner, as well as property and money rights are also common concerns. The laws of the state of Oklahoma treat common law marriages as traditional, made-in-church marriages from a legal standpoint, meaning that common law spouses have several important rights.
• Property: In the event of a divorce or death, benefits of the marriage are divided equitably, meaning that the courts will divide the assets fairly, but it is not required that the division be equal.
• Alimony: Alimony can be awarded to a common law spouse in the event of a divorce. Alimony is not considered an award, but rather a form of support until the spouse is able to find stable employment and/or a means of supporting themselves.
• Inheritance: If a common law spouse dies without a will, the remaining spouse has heirship rights, meaning that they inherit the same rights as a legally wedded spouse. Common law spouses are treated the same as legally wedded spouses under Oklahoma law for inheritance purposes. Because the rights of common law spouses are the same as those who are legally married, provisions in a will can override them. The courts will require additional proof of the marriage, such as a declaration of marriage, financial records, tax returns, birth and marriage certificates on behalf of children, a change of name to the other spouse and other proof of joint residence.
Ending a Common Law Marriage in Oklahoma
While there are few laws regarding common law marriages in Oklahoma, there is legal recourse when the relationship does not work out. Just as with other legal marriages, ending a common law marriage requires a divorce. But because common law marriages lack a formal certificate or paperwork, proving that the relationship existed can be difficult.
The proponent spouse has the burden of proof to show by an evidence of a proponderance that the parties entered into a common law marriage. That is they were wed by mutual consent and agreement but without the requirement of a marriage license. So, a husband must show that he and his wife considered themselves married each and every day and not just a matter of convenience. Again, proof of cohabitation or general reputation in the community of being husband and wife is insufficient to prove the marriage.
If a husband and wife dispute the existence of the marriage or the termination of the relationship – perhaps one spouse continues to use the other’s name, one spouse maintains the separate residence, a spouse engages in dating relationships – that case will go to hearing before a district court judge to determine the validity of the marriage or its termination.
Like a contested divorce , a hearing on the issue of common law marriage may result in significant attorney’s fees. The constitutional issues raised in this kind of action require that it be handled in an unusual fashion. When I am brought in to handle one of these cases, we efficiently dispose of all the issues that normally arise in a contested divorce at the same time.
If the case cannot be settled, I will usually handle it on an hourly basis. It would be almost impossible for a lawyer to charge a seep rate and handle one of these cases, because we might spend several thousand dollars just to get the hearing. On an hourly basis, however, the cost can be quite reasonable, especially if it can be done with some economy. For example, I might do the advance work, such as preparing the marital summary and getting the case ready. Then we might either try the case ourselves or bring in an expert legal presence for the trial.
While complexity in marital issues may seem overwhelming, it is important to have someone who is used to practicing family law regularly to handle these issues.
The Truth About Common Law Marriage Myths
One of the most common misconceptions we encounter in our practice is that all arrangements that could arguably be common law marital relationships are in fact common law marriages. While this certainly is not true, significant public mis-conception on this point seems to fuel these submission – even by government offices that should know better. We had a client come to us a while back with a social security determination letter telling her she had a common law marriage with the father of her child and needed to file for divorce within 60 days or the marriage would become valid under federal law. Unfortunately, some government office had taken a submission applying a form provided by the Social Security Administration and treated registering the child for SSDI as common law marriage submission. A retraction followed and no further complications occurred. But how many people don’t have the resources or legal background to recover from the damage this did in their lives? It is my goal to provide some needed education on common law marriage so unnecessary litigation can be avoided going forward.
How to Establish a Common Law Marriage in Oklahoma
The documentation and evidence you need to show a common law marriage exists in Oklahoma is largely dependent upon the facts and circumstances of your case. However, in general, it is best to document things as you go. In Oklahoma, the burden of proof for common law marriage is a preponderance of the evidence. This is the lowest standard of proof recognized by law; which is to say, "more likely than not."
- Prior to marriage, obtain a Premarital Agreement.
- Make sure joint expenditures such as rent/mortgage, utilities, and food are held in joint names.
- Hold a joint checking account. If either spouse’s name is on the account, that is fine . However, it must be a joint account.
- If you have children together, always sign documents as Mr. or Mrs. and not Dr. or Ms.
- Use a common last name.
- Use a common home address when registering for medical care, signing school forms, and signing loan forms.
- File joint tax filings if you have been living together for a significant amount of time.
- Jointly own an automobile.
- Add your spouse to your employee benefits packages at work.
- Let family and friends know you are married and ask them to treat your spouse as your husband or wife.
If you are challenged or break up after living together, having added these precautions will help your case.