Wednesday, May 27, 2009

Problem? Solution.

Look, I know homosexual marriage is a big deal to some people.  Some people think getting married is a civil right (which means the Catholic Church is violating their priests’ civil rights, and if I ask and you say “no”, then you’re violating my civil rights, but I digress), some don’t.

The problem, I think, goes even deeper.  Most people still believe “marriage” is something that is done at a church.  Yes, people get married at city hall or Vegas all the time, but most people still consider “marriage” to be defined not as “a man and a woman”, but as a “holy union”, generally done at a church or officiated by a church dude.  If the state says marriage is between any two people, that invites a push to force churches to follow suit, lest they be violating the law at the least, or a person’s civil rights at worst.

No, you say?  Couldn’t happen, you say?  The same could be said 10 years ago about the “right” to get married being invented out of thin air by a lawsuit and a judge reinterpreting the existing law and forcing a legislature to make new laws.  That’s what set the whole nationwide referendum processes in motion.  If one side is going to invent new laws by suing and claiming the current ones are unconstitutional, then the other side will simply make the current law constitutional by amending the relevant state constitutions.  Simple as that (and a little bit awesome that the rule of law won out over activist judges).

Nevertheless, as long as it’s called “marriage”, and as long as “marriage” is seen as something that is done at a church (and I believe my grandmother never recognized my aunt’s second marriage because it second didn’t happen in a church), then there will never, ever be a widespread acceptance of homosexual “marriage”.  Sure, some churches already perform gay unions and some do so against the governing principles of their own particular denominations.  But most don’t.  And most likely won’t for a long, long time.  Probably about a generation or two more.  My sense is that most of the folks opposed to allowing gay marriage are of the opinion that they can do whatever the hell they want, just don’t call it marriage.

But, if you’ll excuse the pun, there may be a way to back-door a solution.  There is a thing known as “common law marriage”.  Folks live together long enough, act like husband and wife long enough, hold themselves out to be husband and wife long enough, the state considers them married.  No certificates needed.  No ceremony needed.  No nothing.  Just say it’s so, and it’s so.  Some states still allow it (Texas is one of them), and the rumor used to be that if you got a hotel room with your girlfriend and told the clerk she was your wife, you were married, BOOM!  Easy as that.  Might have to call it something else, though.  “Common Law Unions”, anyone?

Common Law Marriage

Common law marriage is permitted in a minority of states. To be defined as a common law marriage within the states listed below, the two parties must: agree that they are married, live together, and hold themselves out as husband and wife. Common-law marriage is generally a non-ceremonial relationship that requires "a positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, cohabitation sufficient to warrant a fulfillment of necessary relationship of man and wife, and an assumption of marital duties and obligations." Black's Law Dictionary 277 (6th ed. 1990).

Before modern domestic relations statutes, couples became married by a variety of means that developed from custom. These became the elements of a "common-law marriage," or a marriage that arose by operation of law through the parties' conduct, instead of through a ceremony. In many ways, the theory of common-law marriage is one of estoppel - meaning that parties who have told the world they are married should not be allowed to claim that they are not married in a dispute between the parties themselves.

Currently, only 9 states (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma, and Texas) and the District of Columbia recognize common-law marriages contracted within their borders. In addition, five states have "grandfathered" common law marriage (Georgia, Idaho, Ohio, Oklahoma and Pennsylvania) allowing those established before a certain date to be recognized. New Hampshire recognizes common law marriage only for purposes of probate, and Utah recognizes common law marriages only if they have been validated by a court or administrative order.


New Hampshire ³


Ohio 4

District of Columbia

Oklahoma5 (Okla. Stat. Ann. tit. 43, § 1)


Pennsylvania9 (23 Penn. Cons. Stat. § 1103)

Idaho ²

Rhode Island

Iowa (Iowa Code Ann. §. 595.11)

South Carolina

Kansas 8

Texas 6 (Tex. Fam. Code Ann. § 2.401)

Montana (Mont. Code Ann. § 26-1-602, 40-1-403)

Utah7(Utah Code Ann.§ 30-1-4.5)


1.     Only for common law marriages formed before January 1, 1997 (1996 Georgia Act 1021).

2.     Only for common law marriages formed before January 1, 1996 (Idaho Code § 32-201).

3.     Common law marriages effective only at death. (N.H. Rev. Stat. Ann § 457:39).

4.     Only for common law marriages formed before October 10, 1991 (Lyons v. Lyons 621 N.E. 2d 718 (Ohio App. 1993)).

5.     Only for common law marriage formed before November 1, 1998. (1998 Okla. SB 1076).

6.     Texas calls it an "informal marriage," rather than a common-law marriage. Under § 2.401 of the Texas Family Code, an informal marriage can be established either by declaration (registering at the county courthouse without having a ceremony), or by meeting a 3-prong test showing evidence of (1) an agreement to be married; (2) cohabitation in Texas; and (3) representation to others that the parties are married. A 1995 update adds an evidentiary presumption that there was no marriage if no suit for proof of marriage is filed within two years of the date the parties separated and ceased living together.

7.     Administrative order establishes that it arises out of a contract between two consenting parties who: (a) are capable of giving consent; (b) are legally capable of entering a solemnized marriage; (c) have cohabited; (d) mutually assume marital rights, duties, and obligations; and (e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife. The determination or establishment of such a marriage must occur during the relationship or within one year following the termination of that relationship.

8.     Kansas law prohibits recognition of common law marriage if either party is under 18 years of age. (2002 Kan. Sess. Laws, SB 486, §23-101).

9.     Pennsylvania law was amended to read "No common-law marriage contracted after January 1, 2005 shall be valid." (Pennsylvania Statues, Section 1103)

Because the doctrine of common law marriage developed prior to the advent of modern domestic relations statutes, in some states the law exists in case law rather than legislation. (For example: Piel v. Brown, 361 So. 2d 90, 93 (Ala. 1978); Deter v. Deter, 484 P.2d 805, 806 (Colo. Ct. App. 1971); Johnson v. Young, 372 A.2d 992, 994 (D.C. 1977); Smith v. Smith, 161 Kan. 1, 3, 165 P.2d 593, 594 (1946); Sardonis v. Sardonis, 106 R.I. 469, 472, 261 A.2d 22, 23 (1970); Johnson v. Johnson, 235 S.C. 542, 550, 112 S.E.2d 647, 651 (1960)).

Tennessee has employed a doctrine of "estoppel to deny marriage." See Note, Informal Marriages in Tennessee - Marriage by Estoppel, by Prescription and by Ratification, 3 VAND. L. REV. 610, 614-15 (1950).

Many states have abolished common-law marriage by statute, because common-law marriage was seen as encouraging fraud and condoning vice, debasing conventional marriage, and as no longer necessary with increased access to clergy and justices of the peace. (For example: Cal. Civ. Code § 4100; N.Y. Dom. Rel. Law § 11 ; Furth v. Furth, 133 S.W. 1037, 1038-39 (Ark. 1911); Owens v. Bentley, 14 A.2d 391, 393 (Del. Super. 1940); Milford v. Worcester, 7 Mass. 48 (1910)).

Among those states that permit a common-law marriage to be contracted, the elements of a common-law marriage vary slightly from state to state. The indispensable elements are (1) cohabitation and (2) "holding out." "Holding out" means that the parties tell the world that they are husband and wife through their conduct, such as the woman's assumption of the man's surname, filing a joint federal income tax return, etc. This means that mere cohabitation cannot, by itself, rise to the level of constituting a marriage. Of course, many disputes arise when facts (such as intentions of the parties or statements made to third parties) are in controversy.

The United States Constitution requires every state to accord "Full Faith and Credit" to the laws of its sister states. Thus, a common-law marriage that is validly contracted in a state where such marriages are legal will be valid even in states where such marriages cannot be contracted and may be contrary to public policy.

There is no such thing as common-law divorce. Once parties are married, regardless of the manner in which their marriage is contracted, they are married and can only be divorced by appropriate means in the place where the divorce is granted. That means, in all 50 states, only by a court order. 



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