Like most things in the law, common law marriage is often confusing and misunderstood. For most people, the term conjures up images of a couple that has lived together for an extended period of time. However, the more widely accepted legal view is that common law marriage is an informal marriage that is not effectuated by civil or religious means. In other words, it is a marriage where the parties did not get a marriage license or have a religious ceremony. While co-habitation may be one of the factors considered in determining whether a common law marriage is valid, it certainly is not the only factor.

Common law marriage has a long history, with origins in Europe. It was brought to America and has varying degrees of recognition, depending on each state’s laws. The amount of recognition ranges from some states currently or always recognizing the concept to other states never recognizing common law marriages.

Does Pennsylvania recognize common law marriages?

There have been many cases that have dealt with Pennsylvania’s treatment of common law marriages. In Pennsylvania, a common law marriage can be recognized as long as it occurred before January 1, 2005. The legislature has stated that any common law contracted after that date is invalid; however, the courts can establish that a common law marriage existed before then.

How is a common law marriage established?

Two things are required to establish a common law marriage existed: capacity and present intent. Capacity means are the parties legally capable of obtaining a legal marriage. Specifically, the parties must be eighteen years of age and unmarried.

Present intent is the second and most litigated standard to establish a common law marriage. Case law has set forth that a common-law marriage in Pennsylvania could be created by an exchange of words in the present tense spoken with the intent to establish the existence of the marital relationship.  This exchange of words is known in common law as the verba in praesenti. In other words, at some point in time, the parties must have spoken that they considered themselves to be married to one another.

However, just because the parties did not speak the words that they are married does not automatically mean a common law marriage did not exist. The party claiming a common-law marriage bears the burden of proof to establish a common law marriage. A spouse who cannot establish the creation of a common-law marriage by an exchange of words may be entitled to a rebuttable presumption of marriage by showing constant cohabitation and reputation of marriage.

This can be proved by deeds or rental agreements indicating both parties lived in the same residence, tax returns where the parties filed as married, or other evidence showing that the parties held themselves out as a married couple. The parties can also use testimony from friends, family or people in the community that the couple did or did not hold themselves out as a married couple.

What does a common law marriage designation mean for a divorce?

Once a common law marriage is established as valid, the divorce proceedings are the same as a typical marriage. A complaint is filed alleging the date of marriage as the date the parties exchanged the present intent. The parties can divide marital assets through equitable distribution, obtain support or alimony, and pursue any other rights they would normally be entitled to through a divorce.

Are same sex common law marriages valid?

Pennsylvania does not recognize domestic partnerships or civil unions within the state. Until 2014, the capacity to marry included that the parties be of the opposite sex. However, with the legalization of same sex marriage, the door has been opened to same sex couples utilizing the common law marriage designation. Recent case law has confirmed the right of same sex couples to establish a common law marriage in Pennsylvania. In July of 2015, Bucks County Court Judge C. Theodore Fritsch Jr., found a common law marriage was established between a same sex couple. However, the Pennsylvania Superior and Supreme Courts have not addressed the issue. The application of common law marriage to same sex relationships is clearly an evolving area of divorce law, which will be delved into further as time passes.

Common law marriage and divorce, like many areas of Family Law are peppered with nuances that may not be intuitive or even sensible. An attorney well versed in the practice of Family Law can help guide you through what can be an unpleasant experience, mitigating issues that may arise and getting you the outcome you deserve.

Julie J. Marburger, Esquire, is an attorney at the law firm of Wolf, Baldwin and Associates, P.C.  She practices in the firm’s Reading, Pottstown and West Chester offices.  In 2014, she received the Select Lawyer award for her practice in Family Law.  She may be reached by telephone at 610.374.2400 or by e-mail to jmarburger@wolfbaldwin.com.