What is Common Law Marriage?
What is Common Law Marriage? Generally, a common law marriage is a relationship that does not involve an official ceremony, and often times lacks a marriage license. A common law marriage doesn’t even require the couple to live in the same location. The parties’ intent to be considered married and their manner of living are often the only things that point to their marital status. Because an unofficial ceremony can complicate family law matters, it’s important to understand how common their use is in Oklahoma. The parties must have legal capacity to marry. Both parties must be of sound mind and must consent to enter into the relationship willingly. The parties cannot already be legally married to someone else. Living together alone is not enough to establish a common law marriage. Additionally, cohabitation in such a capacity does not mean the parties intended to be married. For example, if you and your girlfriend share a home with her child , that does not mean you are married to her or that the mother intended for you to be the child’s stepfather. If you do cohabitate, make a verbal or written agreement to be married, and plan to hold yourselves out to others as a married couple, you will likely have established a common law marriage. In Oklahoma, common law marriages apply to either-sexed couples and requires those parties to sign a contract to marry. It does not require joint tax returns, property, or bank accounts. One other characteristic of common law marriages is "holding out." The parties must hold themselves out to be married to the world. What does this mean? It means you and your girlfriend must hold yourselves out to others as a married couple. For example, if you and your girlfriend both said "no" when asked if you were married or you called her your girlfriend instead of wife in public, you otherwise failed to hold your relationship out to be one of a married couple. This, again, makes this type of marriage tricky, because it opens the door to what is considered holding out to others.
Legal Validity of Common Law Marriage in Oklahoma
To understand the current status of common law marriage in Oklahoma, we must first review the historical context. The State of Oklahoma did recognize and enforce common law marriage until 1956, when it passed Title 43, § 3 governing ceremonial marriages and amending the statutes concerning common law marriage. Specifically, that section of the statute states:
(A) The formalities necessary to a valid marriage, including a license, ceremony, and solemnization are not required for an informal marriage.
(B) A marriage is an informal marriage entered into by:
- A man and a woman who are otherwise capable under section 1 of this act of entering into an immediate marriage;
- Who, after the effective date of this Act, consent in writing, signed in the presence of one (1) witness other than the officiant, to enter into an informal marriage; and
- Who, subsequent to the execution of the instrument required by paragraph 2. of this subsection, establish an informal marriage by:
a. the filing of the certified copies of said instrument with the county clerk in accordance with subsection C of this section,
b. filing an affidavit of an informal marriage in accordance with subsection D of this section or
c. the filing and recording of such other proof of an informal marriage as the district court may prescribe from time to time;
4. Provided however, an informal marriage is not recognized after the first to occur of the following: the filing of said written instrument with the county clerk as above described, the death of either party to the informal marriage or the judicial dissolution or annulment of the informal marriage.
(C) The written instrument required by paragraph 2. of subsection (B) of this section shall be filed with the county clerk within ten (10) days after its execution in an informal marriage license book kept by the clerk. The filing and recording of the instrument cancels the license issued to the parties to the marriage. Such record shall, however, be prima facie evidence of the marriage of the parties.
(D) In the absence of the written instrument described in paragraph 2. of subsection (B) of this section and the parties having neither been married by ceremonial marriage, nor being able to produce proof of an informal marriage, the fact of an informal marriage may be established by an affidavit, sworn to and subscribed by the parties thereto, and attested to by the signature of any disinterested person over the age of eighteen (18) years who has firsthand knowledge of the informal marriage. Such affidavit shall be filed with the office of the court clerk of such county where one of the parties resides. The affidavit shall state the full names of the parties to the informal marriage, the date thereof, and the place at which the marriage took place.
As you can see, this particular paragraph permits couples wishing to be treated as common law married to file an affidavit attesting to their marriage with their county clerk. However, this has often been interpreted by most parties as the only acceptable manner to obtain this status, and in fact, there are strict procedural requirements for the affidavits used in the process ostensibly set up by the statute. Nevertheless, there is no provision forbidding common law marriages, nor is there a grandfather clause prohibiting the enforcement of those already created. To that end, it is very possible to establish a common law marriage in Oklahoma, even if the procedure that is supposed to govern it might not be strictly followed.
Requirements for a Common Law Marriage in Oklahoma
In order for a common law marriage to be recognized in Oklahoma, two primary requirements must be met for the union between two individuals to be legally recognized. Some of the requirements are rather universal when compared with those concerning traditional, codified marriages, such as the need for the parties in question to be free of other legal marriages at the time of their common-law union.
There are also some uncommon—and often confusing—conditions that must be fulfilled before a common law marriage can be officially recognized in Oklahoma. These include both parties being of a legal marriageable age (which is 18 under state law) and a limitation on the number of common law marriages that may exist between any two individuals; specifically, after three common law marriages between the same individuals, the law no longer recognizes such unions in Oklahoma.
The most important consideration, however, is the need for both parties to have some type of legal standing in Oklahoma. Because common law unions can be more difficult to prove than codified marriages, authorities require that a common law relationship be diversified throughout various legal documents, from property deeds to financial accounts. Because parties to a common law union are required to demonstrate their intention to be legally married, if these assets are not commingled and official documentation does not refer to the parties as husband and wife, a common law marriage may not be recognized.
Obtaining a marriage license is another important detail in the process, which acts as a safeguard against the possibility that the law will not recognize a common law marriage. Under Oklahoma law, if a couple does obtain a marriage license, the Oklahoma County Clerk is required to satisfy themselves that the couple meets the requirements outlined above. Although it is not a legal necessity, there are also benefits to having a formalized ceremony that may not be available to couples relying only on a common law union.
Recognition and Dissolution of Common Law Marriages
Each party to a common law marriage must possess the requisite capacity and mutual consent required of a ceremonial marriage-between a man & a woman. Each party must understand that they are entering into a marriage relationship.
As with a ceremonially recognized marriage, the parties may recognize their common law marriage at any time and how they wish as long as such recognition is documented or established. A common law marriage is not really "registered" per say. Even a wife’s taking of her husband’s name is not evidence of a common law marriage. The law requires a mutual agreement by the parties to be married and cohabitation after that mutual agreement has been consummated. These factors may or may not be contained in a "marriage license".
While there is historically no time limit for a common law marriage (in Oklahoma or otherwise), the presumption is that it requires at least two years of cohabitation. There is no formal process for dissolving a common law marriage. In this respect, the dissolution of a common law marriage is no different from the dissolution of a ceremonially recognized marriage. However, the parties may approach the court for a divorce hence obtaining the legal benefits associated with such a dissolution.
Common Myths of Common Law Marriage
Misconceptions About Common Law Marriage
Despite the clarity with which common law marriage has been established in Oklahoma, there are still many misconceptions about how it is regarded legally. One of these misconceptions is that a common law marriage does not need to be verified or documented. On the contrary – while most states require some sort of verification for a marriage by license, Oklahoma recognizes common law union as a legal institution that does not need any verification and is simply deemed a marriage. Another misconception is that common law marital status cannot be challenged . Because common law marriage is not a formal process, it does not put the individual in a position that requires proof of marital status for many transactions. At an early stage, a common law marriage would be a verbal agreement of some kind. As time passes, however, common law marriage status can be challenged in many different venues, such as when transferring property, garnering access to insurance, or applying for spousal benefits. The assumption is that a common law spouse has an equal right to benefits and property as any formally recognized spouse. Legal disputes that arise over marital status can involve wills, trusts, and real property.
Legal Advantages and Disadvantages of Common Law Marriage
Common law marriages are still recognized in Oklahoma, despite the lack of formal registration. Much like a formal union, common law marriage in Oklahoma brings with it several rights and responsibilities.
Potential Rights
There are several defenses often used to establish the existence of a common law marriage in Oklahoma:
If cohabitation and a mutual agreement to limit cohabitation to one another are established and proven to 2nd hand witnesses they can be used as a basis to establish this marriage.
A common law spouse in Oklahoma has many legal benefits upon the death of their partner. The common law spouse can inherit from the deceased just as if they had a formal marriage. If there are no other surviving family members, the spouse will receive the full estate. If there is also a surviving parent or child, the common law spouse and the family member with either share in 50 percent of the estate.
A common law spouse has the same rights as a formally married spouse with regard to deciding on medical care for their partner. Common law spouses should have their names listed on their partner’s medical documents if they wish to make decisions about their partner’s care if they are unable to do so.
Common law spouses also have the right to make burial decisions for their deceased partner.
Under Oklahoma law, a common law spouse has the same rights and obligations when it comes to divorce as a formally married spouse. All property accumulated during the course of the marriage is considered marital property and subject to the laws of equitable distribution.
Potential Challenges
With a common law marriage, one of the most important considerations to keep in mind is that there is no certificate or record keeping those living together that a marriage ever existed.
While cohabitation and relationships such as a written contract between the couple can be used as evidence of a marriage, they can become difficult to prove when only 2nd hand witnesses are available.
Establishing a common law marriage is only the first step in the process. You will also have to resolve decisions about issues such as:
In addition, special issues such as pension plans and retirement funds may affect decisions about alimony or payment arrangements made by the separating couple.
It is wise for couples in a common law marriage to prepare wills, trusts and other estate planning documents to ensure that other family members do not receive personal property or financial assets that were intended for a partner.
A common law spouse will not have rights to a deceased partner’s life insurance proceeds. Life insurance policies must include the spouse’s name in order to distribute benefits directly to them.
Oklahoma law does not consider common law marriage for dissolution of property rights. This means that there is a distinct possibility that property accumulated during the time period where the couple lived together will become part of the marital estate and be subject to the laws of equitable distribution. As we have discussed earlier, a common law spouse in Oklahoma has the same rights to property as a formally married spouse.
One of the biggest risks associated with failing to dissolve the common law marriage is that one partner will gain full ownership of the property that was jointly acquired by the couple. This risk even extends to pensions, retirement funds and other benefits.
Practical Tips for Common Law Couples in Oklahoma
While common law marriage may be legally recognized in Oklahoma, it is always best to enter into a formal contract that provides for specific rights and obligations for both partners. A marriage license is useful for the protection it provides, from hospital visitation rights to spousal tax exemptions. Even if you may not be religious, opportunities to enter into a lawful union with wide legal protections are available in a civil ceremony. Rights you might otherwise have to litigate to establish could be preemptively protected with a marriage contract.
While the couple may choose to not get married through church or civil ceremony, they can still enter into a cohabitation contract. A live-in relationship with the expectation that the couple will get married is not enough to create a common law marriage. Similarly, mere cohabitation or having a child together is insufficient for the status. Cohabitation agreements entered into by people in such "non-marital" relationships can clearly establish the rights and obligations of the people in the relationship. Just like premarital contracts , these agreements can identify what will happen in the event of separation. Cohabitation contracts can be used to address child support and custody and spousal maintenance after separation.
Documentation is important in demonstrating a common law marriage to the state. When and if litigating a divorce or separation case, producing documentation of your relationship can make a significant difference in proving that the spouse is entitled to certain rights. Many different types of documents can help establish a union in a common law marriage, including the federal 1040 tax return, joint bank statements, checking account statements, and insurance policies. At a minimum, it is recommend that copies of documents such as property tax statements, court filings, or life insurance policies that include the other spouse as a dependent be obtained. A common law marriage may be voided by entry of a court order or by performing a formal marriage ceremony.
