Considerations of Common Law Marriage Validity in Pennsylvania

Present Status and Form of Common Law Marriage in Pennsylvania

Common law marriage is no longer legal in the Commonwealth of Pennsylvania, however, this has not always been the case in recent years. The state Supreme Court concluded in 1998 that common law marriage could no longer be entered into and that all existing common law marriages were still valid if entered into prior to January 1, 2003. A subsequent statute went into effect on January 1, 2005 rendering all existing common law marriages entered into by that date as still valid. New legislation potentially changed that status again.
In 2013, the law which made common law marriages entered into prior to January 1, 2005 still valid was amended again. At this point the Supreme Court ruling from 1998 was overruled and it was declared that the common law marriage validity would be determined by looking at the date an entered into rather than disregarding those entered into prior to 2005. This was however , effective only for marriages entered into after January 18, 2012 since the new law was not applied retroactively. This means for example a couple who was considered married under the law prior to the 2013 amendment to the law is still married.
Currently, a common law marriage cannot be entered into in the state of Pennsylvania. For relationships that were entered into prior to January 1, 2003, there are still certain protections afforded to these relationships. However, with so many changes to the law, it is important that a couple living together (with the intent of being married) understand the impact their relationship could have on each other in the event they separate or one person passes away.

History of Common Law Marriage in PA

In colonial times and for many years thereafter, common law marriage was a widely accepted legal concept. This doctrine recognized that the solemnization of a marriage could have occurred without an authorized religious or civil ceremony, and without the parties’ being present before a clergy or magistrate. Instead, under common law, a party to a marriage simply had to manifest an intent to marry and couple that intent with actions sufficient to evidence the marriage. Pennsylvania courts historically recognized both words and actions as legally sufficient to establish the intent of the parties to marry. In 1970, however, the Pennsylvania Legislature abrogated the common law doctrine of marriage by statute. Thus, the law in Pennsylvania today is that common law marriages no longer exist in Pennsylvania.
Before its abrogation, common law marriage required the parties to a marriage to have a present intent to be married, and to act in accordance with that intent. At common law, a ceremonial marriage did not negate the validity of a common law marriage. Consequently, there have been many instances in which a couple will have both executed a ceremonial marriage and at the same time created a common law marriage. In Pennsylvania, this has resulted in much litigation dealing with the idea of mutual intent of the parties. Courts have often been called on to review the evidence to determine if the parties intended to be married at the time of the execution of the marriage document. Add to this the circumstance where the parties have entered into either (a) a common law marriage either during a separation period between them, or (b) during the pendency of divorce proceedings and evidence changes from day to day; evaluating the existence of a common law marriage is often literally a "battle of the experts."

Distinguishing Characteristics of Common Law Marriage

There are various characteristics that distinguish a common law from a Pennsylvania marriage. The first one deals with the intent of the parties to enter into a marital relationship. In other words, if you go out and purchase a marriage license to get married, your intent is clear. If you have a ceremony and the pastor states that you are legally married, even though you do not have a marriage license, the intentions of the parties are clear. All of the courts agree that the parties must hold themselves out to be married to the outside world, and not engaged. Generally, the parties must live together for a reasonable period of time and have an agreement to live together as husband and wife. If you never tell anyone that you are married, and you never cohabitate together, it will be very difficult to prove a common-law marriage.
Another key distinction of a common law marriage is the consideration of whether or not the parties ever held themselves out to the world as being husband and wife. In our post-Martin, the Supreme Court viewed the holding-out requirement as proof of a real marriage as opposed to a sham marriage. Nevertheless, where the parties are not able or do not wish to formally hold themselves out as being married, Pennsylvania continues to allow this proof to be satisfied by additional factors such as the parties’ sharing of their income and expenses or the extent to which the parties’ interact with their families as husband and wife.
The next requirement is about the parties intending to be "grounded in the particulars of the marriage relationship. In other words, can the parties hold themselves out as being a husband and wife and can you give proof that you are really married even though you do not meet the requirements of a traditional marriage. Some of the factors which the courts have examined include the fact that the parties did register as married at the county courthouse in order to obtain a joint equipment loan; shared bank accounts; shared credit cards and daily transactions; household bills and expenses are in both names; change of the beneficiary on various insurances to be the other party; health insurance is used by the other party; attending family functions together and refer to the other as his/her spouse; and treating one another’s children as their own children. This is not an exhaustive list, but a sample of proof that allows the courts to find that the parties hold themselves out to be married.
Another requirement is that the parties make an economic burden or expense, and they have to make mutual economic sacrifices for the benefit of the marriage and children. There would be no economic sacrifice if the parties were merely holding themselves out as husband and wife or even engaged or friends. An example of this requirement is if a person gives up a job, cuts back hours so that the spouse can work, stays home and takes care of the children while the other works, relocates for the other parties career, some sacrifices of assets, investments, etc. The list is endless. An example of a mutual economic sacrifice might be the fact that the parties brought properties to the marriage and merged them into a single marital property.
The third element that was required under the earlier case of Pierce was that the parties must reside together in the same household. The bar thought that this was overly harsh. That is when the courts began to really modernize the law. No longer is the cohabitation requirement a "absolute prerequisite" to the creation of a common law marriage. The Supreme Court stated in Pierce that under the appropriate circumstances, the common law does not require that a man and woman establish a joint residence in order to have contracted a common law marriage. The court then provided a few examples that would suffice to show the parties have really formed a marriage relationship. Where one spouse is in prison, because one spouse lives at some distance, or is required by his job to be away from home, the residence requirement could be dispensed with if the parties were otherwise eligible for a common law marriage. The most important thing to consider is that the spouse that stayed at home paid enough attention to the spouse that was gone in some manner. While offering love does not cut it, trying to keep the love alive is what will get you to a common law marriage. If the person left behind does not care anymore about the person who is gone, no common law marriage.

Legal Consequences of Common Law Marriage

Common law marriage, recognized as legal in Pennsylvania until 2005, has various legal implications for partners who have established such a union. Understanding these potential outcomes and challenges post-retirement and disability is crucial in equipping yourself with the knowledge necessary to protect your and your partner’s rights. Essentially, if you have been in a common law marriage up until 2005 and are no currently, you may have the same rights a married couple would enjoy, including property rights, entitlement to each other’s insurance coverage or pensions and inheritance rights, among others.
Property rights of both parties in a common law marriage are likely achievable through what is called "marital partition." Just as they sound, contributions of marital assets can be divided after the marriage ends, just as property would be divided after a civil marriage ends. Pennsylvania also recognizes property exempt from creditors. An example would be a homestead.
Pensions. Because the term "spouse" is defined by the law, a partner in a common-law marriage may seek a portion of a pension earned during the marriage. This is a highly contested area of law.
Insurance benefits. A worker who earns an insurance benefit during his or her lifetime will receive it at death. However, if that worker has chosen a beneficiary, that beneficiary will receive the insurance benefit. However, because Pennsylvania’s definition of "spouse" includes people in common law marriages entered into before 2005, a partner in a common law marriage may be able to claim that insurance benefit.

Establishing a Common Law Marriage in Litigation

Proving a common law marriage in a Pennsylvania court is a complex process that requires specific and compelling evidence. To establish the existence of a common law marriage, one must first prove that the parties to the marriage had both the intent to be married and the capacity to marry at the time of the alleged union. This intent is usually demonstrated through evidence that the parties mutually agreed to forever be husband and wife. For example, financial records, correspondence, or witness testimony that demonstrate a long and continuous cohabitation may be used to show this intent. Physical cohabitation is an important factor, but will usually not be enough by itself to prove a common law marriage.
In addition to intent, a party seeking to prove a common law marriage must also be able to show that both parties had the capacity to marry. This means that each party must have the mental and legal ability to consent to the marriage and must not have been already married to anyone else. This can sometimes be a difficult aspect to overcome , particularly if one or both of the parties now deny the existence of such a marriage.
It is also worth noting that while a common law marriage may have been valid when it was formed, the passing of Act 2005-32 on September 7, 2005, now means that no new common law marriages are entered into in Pennsylvania. However, a common law marriage entered into prior to this date is still deemed valid and enforceable. In fact, because the validity of a common law marriage is now a fact issue, parties often must engage in a factually intensive discovery process to show sufficient evidence for a court to make this determination. There are also specific rules as it relates to the presentation of evidence at a hearing and strict rules regarding case law that must be followed to properly show the existence of a common law marriage.

Alternatives to a Common Law Marriage

So, since Pennsylvania no longer recognizes the legality of new common law marriage, what options are available to couples in a long-term relationship that want to ensure that they have each other’s interest protected after one of them dies? Going back to the beginning, first and foremost, as I mentioned previously, you don’t have to get married if you are living together and don’t want to go through the hassle of getting married. You can live together on amicable terms and use the traditional regime of contract law to govern your relationship with one another. In other words, you can draft a "cohabitation agreement" which sets out your expectations of the relationship with the other party.
A cohabitation agreement is sometimes referred to as a "non-traditional relationship agreement," or a "non-marital agreement" and should establish expectations in the following areas: Another alternative for someone who wants to be in a secure relationship with the other party is to establish a "domestic partnership." A domestic partnership may be defined by any two persons who reside together in a long-term committed relationship of mutual interdependence and economic and domestic life, which two parties share. Domestic partnerships may or may not include a sexual or romantic relationship. A domestic partnership is a legally recognized relationship within certain benefits programs such as health care, medical and retirement plans. Domestic partners may be entitled to benefits that were previously limited to spouses. Indeed, Pennsylvania permits a domestic partner to make medical decisions for his/her partner in the event that their partner loses their capacity to make medical decisions. There are also benefits for a domestic partner for workers’ compensation and wrongful death claims. There is also a recent focus on domestic partnerships in the employee benefits context where employers grant their employees the benefits of a domestic partner, similar to those of their spouse. It should be noted that the term "domestic partnership" is also used to define a relationship in which the partners live together and share a domestic life, but which arrangements have been legally recognized and regulated in other states. Domestic partnership relationships are not recognized by Pennsylvania law at this time. Therefore, domestic partnership agreements are usually for the protection and benefit of residents of states other than Pennsylvania. Indeed, such agreements are frequently litigated in Pennsylvania. The courts in Pennsylvania are not inclined to recognize them and have limited the extent of their recognition to narrowly defined agreements. This gives one in the Pennsylvania domestic partnership arena very limited legal remedies. That being said, it is still recommended that you have a "domestic partnership agreement" in the event that your relationship has been legally recognized in another state and that you suffer from the benefits of such an agreement. It is simply extremely important that you consult with a Pennsylvania attorney to see what protections you may receive under Pennsylvania law based upon such agreement.

The Fate of Common Law Marriage in Pennsylvania

While much of this post has been about the state of common law marriage in Pennsylvania, it also bears noting that common law marriage in Pennsylvania is on the decline and things may change in the future. In 2014, the Pennsylvania General Assembly introduced amendments to Section 1103 of the Probate, Estates and Fiduciaries Code which would have barred the recognition of such marriages from that point forward. The bill passed easily in the State House but ultimately failed in the Senate. This may simply be a matter of timing or there may still be some appetite among the general assembly to eliminate the practice of common law marriages for current and future couples.
Regardless of what happens in Harrisburg, the bottom line is that there are cases being decided outside of Harrisburg which effectual foist a similar situation on PA common law marriage. With the recent decision of Williams v. Turning Point Int’l, Inc., 2005 (Pa. Super . Dec. 2009). That court held that the Williamses were in fact married at the time of Mr. Williams’ death. The trial court below properly ruled that the law of the state where the marriage was entered into should be used, namely Texas, not the law of Pennsylvania where the couple resided at the time of Mr. Williams’ death.
But the issue is now bigger than one couple’s marital status. As a result of changes in the law and the workings of the judicial system, the issue of the legality of common law marriage in PA has become clouded. While the writing is on the wall for future common law marriage in Pennsylvania, it is difficult to determine the fate of previously entered common law marriages. In the future, if not already, practitioners and litigants will need to navigate the complex thicket of case law and judicial decisions in order to simply tell if a common law marriage is viewed as valid (in the eyes of the courts) or not.