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There is a misconception that the parties must reside together
for a specified time for a Common Law Marriage to occur. This
is not so. The parties to a Common Law Marriage need not reside
together for a specified number of years for the marriage to
occur. For a Common Law Marriage to occur, both parties must
be free to marry and there must be no legal barrier to the marriage.
Several examples of a legal barrier would be that one party is
currently married to someone else or one party has a major mental problem. If any legal barriers to the marriage exist,
then no Common Law Marriage can occur. After the removal of the
barrier, the parties are free to enter into a Common Law Marriage.
Furthermore, each party must possess a present intent to be married
and manifest a clear intent to marry for the Common Law Marriage
to take place. Although no specific words are required, each
of the parties must say to the other words such as, "I marry
you today" or words of similar intent.
A common problem arises when one party to a Common Law Marriage
attempts to start a divorce action or pursues support rights,
and the other party denies the existence of the marriage. The
Court will then be called upon to determine whether or not the
marriage existed.
Other common situations when the Court is called upon to determine
the existence of a Common Law Marriage relates to inheritance
rights, Workers' Compensation awards, pension benefits, social
security benefits or other benefits precipitated upon a marriage.
The individual attempting to establish the existence of a Common
Law Marriage has the burden of proof. The Court will look for "clear
and convincing evidence." Words of present intent to marry
in combination with cohabitation and reputation will strongly
support the existence of a Common Law Marriage.
Documentary information such as joint income tax returns, deeds,
and other formal records indicating the parties are husband and
wife will also be considered by the Court as evidence.
This is a complicated area of law. Decisions are made by the
Court on a case-to-case basis. It is essential to have an attorney
evaluate all matters related to Common Law Marriages and the
comments in this message are not intended to apply to specific
individual situations.
If you need an attorney and don't have one, the Lawyer Referral and Information Service can help.
Call Us Monday - Friday from 8:30 AM - Noon and 1:15 PM - 3:00 PM
at (814) 459-4411. |
