We recently had an inquiry with respect to the status of common law marriage in Pennsylvania. The quick answer is that this doctrine was long abandoned in other states but survived in Pennsylvania until this century. The more correct answer is that common law marriage is still alive in a diminished form and will survive in that form for many years to come.
First, what is a common law marriage? There are two terms involved. The common law is defined by statute in Pennsylvania. It is the law that was in existence at the time America declared its independence in 1776. The leading source for what was the common law in 1776 is the 1765 four volume compilation by Sir William Blackstone titled Commentaries on the Law of England. Blackstone’s influence on American law was so great that his Commentaries were published in the United States well into the 20th century.
In 1700 any boy 14 years of age could lawfully marry a girl of 12. By statute a man who married a girl under 15 without parental consent could be fined or imprisoned. In the early 18th century another statute was passed that made marriages voidable by parents except where the children were over 21 or parents consented.
Typically marriage involves either a member of the clergy or a public official conducting a ceremony intended to confirm the public assent of the couple being joined in marriage. But a common law marriage was one intended to solemnize marriage for people who were not formally churched or too distant from places where public officials could be found. It required only the capacity to marry (i.e., sufficient age and mental capacity) and the intent to marry. Lord Hardwicke’s Marriage Act of 1753 sought to change this and tighten the requirements. But that Act exempted Jews, Quakers and did not affect colonists in America.
So in America and, particularly in Quaker Pennsylvania, marriage could be recognized whenever the celebrants were of age and expressed words of present intention to be married. The Philadelphia Yearly Meeting calls these “promises” and they are made by one intended spouse to the other without benefit of clergy.
In America this evolved into acceptance of marriage without clergy and without the requirement of a license or a public ceremony. As time passed, these common law relationships were often viewed as instruments of fraud. A woman living with a man who died could step forward and claim a common law marriage and thereby make tort or worker’s compensation claims for the death of her husband. Over time many states passed legislation abandoning these types of marriage.
Pennsylvania retained this doctrine until 2003 when the Commonwealth Court issued its ruling in PNC Bank Corp. v. Worker’s Compensation Appeal Board (Stamos) 831 A.2d 1269 ( Pa. Commnwlth., 2003). The ruling was that courts in the commonwealth would no longer recognize marriages formed after the court decision. This was adopted as a statute effective January 2, 2005.
The key is in the language. If the claim is that the common law marriage was formed before January 2, 2005, the right to assert the marriage exists.
But the standard established in a 1988 Pennsylvania Supreme Court case Staudenmayer v. Staudenmayer, remains quite high. As Justice Newman wrote in that case, “We have allowed, as a remedial measure, a rebuttable presumption in favor of a common law marriage based on sufficient proof of cohabitation and reputation of marriage where the parties are otherwise disabled from testifying regarding verba in praesenti (words of present intent). However, where the parties are available to testify regarding verba in praesenti, the burden rests with the party claiming a common law marriage to produce clear and convincing evidence of the exchange of words in the present tense spoken with the purpose of establishing the relationship of husband and wife, in other words, the marriage contract. In those situations, the rebuttable presumption in favor of a common law marriage upon sufficient proof of constant cohabitation and reputation for marriage, does not arise.” 714 A.2d 1016 (Pa. Supreme 1988).
In a nutshell, unless one of the parties is deceased, proof of a common law marriage does not come from living together or owning bank or brokerage accounts together or even filing tax returns as married individuals. It does not come from exchange of rings or carrying the intended over the threshold. It comes from an exchange of vows or other words clearly meant to establish that a couple has assumed the bonds of marriage. Note also that an invitation to marry or even a plan to marry does not a marriage make.
This is a fact-driven area of the law, and no one should abandon what they think may be a claim of common law marriage without having those facts evaluated by someone familiar with case law that goes back more than a century. But the quick tests that people think make people married (living together for seven years is the most common one we hear about) do not comport with the state of the law.