A common-law marriage is one that is formed through agreement, rather than through the license and solemnization that are necessary to contract a ceremonial marriage. Common-law marriage had its heyday in the late Nineteenth Century, and has been abolished in all but nine states and the District of Columbia. Yet, common-law marriage continues to play a role in American family law – even in states in which it was long ago eliminated. A recent ruling of the South Dakota Supreme Court, In re Estate of Duval, sheds light on this continuing role.
Karen Hargrave and Paul Duval: A Couple on the Move
There is no question that Karen Hargrave and Paul Duval, the couple at the heart of the recent South Dakota ruling, were committed partners in a long-term intimate relationship. But was their relationship a marriage?
Duval and Hargrave began cohabiting in Massachusetts in 1995. Shortly thereafter, he bought a home in South Dakota; in 1996, she moved there to live with him. Beginning in 1997, the couple began spending the summer in South Dakota and the winter in Nuevo Leon, Mexico, where they eventually purchased a home as "husband and wife."
In 2005, they took on an even more nomadic existence, after Duval was the victim of a crime resulting in severe injuries. Hargrave stayed with him at the Mexico hospital where he was initially treated, and then took him to a hospital in Oklahoma for rehabilitation and to the Mayo Clinic in Minnesota for further treatment. They eventually returned to their South Dakota/Mexico schedule, which continued until, in 2008, Duval was tragically killed in a rock-climbing accident in South Dakota.
Whether Hargrave and Duval were married dictates the answer to an important question: whether she is entitled to inherit from his estate as a "surviving spouse." Under South Dakota law, a surviving spouse is entitled to the first $100,000 plus one-half the balance of the decedent spouse's estate when he also leaves behind descendants (such as children, grandchildren, etc.) who are not also descendants of the surviving spouse.
While Hargrave conceded that she and Duval never formally married, she contended that they had established a common-law marriage. His two adult daughters argued to the contrary – contending that Hargrave was not their father's legal wife and therefore was not entitled to a share of his estate.
The Rise and Fall of Common-Law Marriage
Common-law marriage is a relationship that is given legal recognition even though the usual formalities of marriage were not observed. In the law's eyes, contractual consent takes the place of those formalities. A couple becomes married by making a present agreement to "be married" (as opposed to embarking upon an engagement, in which the couple promises to marry at some point in the future). There is no church, no visit to city hall, no presiding minister or judge, and no license.
Yet, the common-law marriage, once formed, is deemed by the law to be real. A common-law spouse has the same rights and obligations as a ceremonial one. At least theoretically, common-law spouses cannot just walk away from the relationship; they, like their ceremonial counterparts, must seek a divorce. (One exception to this is recognized under the laws of Texas and Utah, which impose a statute of limitations on proof of common-law marriage. Effectively, this means that within a short period of time after a couple stops living as an informally married couple, the common-law marriage is treated as if it never existed.)
But here's the hitch: Common-law marriage is not allowed in most states today. During the middle of the Nineteenth Century, most states permitted common-law marriage. By 1931, however, only half the states still allowed common-law marriage. Today, that number is down to nine (plus the District of Columbia).
There are different possible explanations for the rise and fall of common-law marriage. In the Nineteenth Century, it functioned to validate marriages where some technical requirement was not met, and to make marriage available to those without ready access to clergy or a license. It also legitimated relationships in an era when non-marital sex was not only taboo, but often a crime.
But, as the states made other dramatic changes in regulation of marital and quasi-marital relationships over the course of the Twentieth Century, most states abolished common-law marriage. States had become more concerned with record-keeping than they had been in the past. Because so many things turned on marital status – inheritance rights, Social Security benefits, veterans' benefits, pension rights, and so on – the legal recognition of a kind of marriage that required no paper record became a nuisance. States also tried to assert control during the early part of the Twentieth Century over reproduction, which in turn led to tighter controls on marriage. There was fear, too, about the ability of courts to police fabricated claims of "marriage" that one alleged spouse was not alive to contest. Most common-law marriages were proved in court only after one partner had died – and in contexts where inheritance rights were at stake.
In light of the confluence of these – and perhaps other -- factors, various states gradually joined the movement to abolish common-law marriage entirely. A few states had abolished it by 1900, but the abolitions spanned more than a century, with the last state, Pennsylvania, not joining the crowd until 2005.
Common-Law Marriage Today
Today, common-law marriages can be established in Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia. Moreover, six additional states recognize common-law marriages that were established prior to the date that the relevant state's legislature abolished the status. Thus, for example, common-law marriages established in Oklahoma prior to November 1, 1998 are valid.
(Readers who watch the ABC drama Grey's Anatomy might note that Washington State is not on this list. Thus, Derek and Meredith, who purported in last year's season finale to get married by "post-it note" because they couldn't find the time to sneak away from the hospital to Seattle's city hall, are not, even in TV-land, actually married.)
But common-law marriage sometimes reaches even further – for most states that have abolished common-law marriage nonetheless will give effect to such a marriage if it was validly established elsewhere. This is consistent with the general principles of interstate marriage recognition, which I have discussed in many previous columns, including here and here. The "place of celebration" rule, which every state follows, provides that a marriage is valid everywhere if it is valid where celebrated.
There are exceptions to this general rule of recognition, carved out for marriages that violate either "natural law" or a specific statute barring extraterritorial recognition. But, for the most part, courts have found that common-law marriages are governed by the general rule -- that is, the rule that they will be recognized if valid where celebrated -- rather than the exceptions. New York, for example, has specifically ruled that common-law marriages that were validly established elsewhere are valid in New York, even though the legislature abolished common-law marriage within the state in 1933. (Recognition can be granted even when a New York couple spends only a short time in a sister state, as long as they meet the state's common-law marriage requirements while there.)
That approach to recognition led to a sensational trial in a New York court in 1989 between actor William Hurt and ballet dancer Sandra Jennings. Although the couple resided in New York, they spent a summer living together in South Carolina, while Hurt filmed the hit movie "The Big Chill." After they broke up, Jennings sued for a share of his earnings, claiming that they had established a common-law marriage while living in South Carolina, which still recognizes such unions. The New York court would have given effect to a common-law marriage under these circumstances, out of deference to South Carolina's marriage laws, but the court found that Jennings had failed to prove the couple had, in fact, agreed to be married.
Key to Hurt's successful defense was his proof of the fact that the entire cast of "The Big Chill" knew that he and Sandra were not married. Why does this point matter? The answer is that, although the agreement to marry is the crux of a valid common-law marriage, there is hardly ever reliable evidence of such an agreement. Common-law marriage cases thus typically turn on whether a couple has "acted married" and held themselves out to the public as a married couple: Did they cohabit? Did they refer to each other as "husband" and "wife"? Did they tell people they were married? Did they have a joint checking account and incur joint expenses? Did they exchange rings or take a common surname? (This multi-question, fact-intensive inquiry, moreover, cannot be avoided. There is not, contrary to popular myth, any particular length of time, such as seven years, that is necessary to establish a common-law marriage.)
In re Estate of Duval: Were Duval and Hargrave Mere Paramours, or Spouses?
In the recent South Dakota case, the state's highest court was presented with a legal question, followed by a factual one. First, there was the legal question: Would South Dakota, which abolished common-law marriage in 1959, recognize such a marriage it if were formed by its own residents while they were living elsewhere? (The answer, the court said, was "Yes.") Second, if recognition was possible, did Duval's and Hargrave's relationship satisfy the standard necessary for South Dakota to recognize a common-law marriage? (This time, the court's answer was "No.")
A bit unusually, South Dakota has codified the "place of celebration" rule for marriage. Under South Dakota Codified Law § 25-1-38, "[a]ny marriage contracted outside the jurisdiction of this state . . . which is valid by the laws of the jurisdiction in which such marriage was contracted, is valid in this state." The court in Duval thus easily reached the conclusion that a common-law marriage that was validly established elsewhere could also be given effect in South Dakota.
Duval's daughters argued, however, that the rule of recognition should only be applied to couples who were domiciled in the state in which the marriage occurred. In other words, the contended that couples who live in South Dakota should not be allowed to go to another state and contract a marriage that would be prohibited at home in South Dakota– and then come back home, demanding that South Dakota afford recognition to their marriage.
There were two problems with the daughters' argument. First, states generally do not restrict marriage to only their own domiciliaries or residents. (Divorce is different; in general, only residents of a particular state can file for divorce there.) Under Oklahoma law, for example, an Oklahoma couple and a South Dakota couple would be subject to the same requirements for establishing a common-law marriage in that state.
Second, while some states have adopted specific rules (by judicial ruling or statute) to deny recognition to so-called "evasive" marriages – where a couple bypasses their own state's marriage restrictions by marrying elsewhere and then seeking recognition under the place-of-celebration rule at home – South Dakota has no such rule. The only requirement for a marriage's recognition, in South Dakota, is that the marriage meets the requirements of the jurisdiction in which it took place.
Why Hargrave, After Winning on the Law, Lost on the Facts
The South Dakota Supreme Court thus correctly ruled that Duval and Hargrave could have established a common-law marriage while living in Oklahoma, or possibly Mexico, that would be given effect in South Dakota.
But did they, in fact, establish such a marriage? Here, the daughters prevailed on the facts, convincing the court that the couple had not established a common-law marriage in either Oklahoma or Mexico, the two jurisdictions in which they had spent substantial time together as a couple.
Mexico does not have sufficient "common law" to support a "common law" marriage, but it does grant rights to couples who have entered into a "concubinage," which is defined by relevant law as the "union of a man and woman, free from formal matrimony, who for more than five years make a marital life . . . as long as there is no legal impediment to their contracting it."
The Duval court ruled, in accord with rulings from several other states, that a Mexican "concubinage" is a "legal union," but not a "marriage." While a concubine is granted some rights, the status does not provide the full rights of marriage. The status of "concubine" therefore is insufficient to trigger "marriage" recognition – with the full panoply of rights that accompany that status -- in a foreign jurisdiction.
Oklahoma, in contrast, does recognize common-law marriage. Current law there requires a declaration of intent to marry, cohabitation, and a holding out of the members of the couple to the community of being husband and wife. Hargrave's testimony, however, was ambiguous about whether the parties had ever explicitly agreed to marry. She testified that they thought they "were married," but, at the same time, she admitted that "nobody said, okay, so we should agree to be married and write it down and put the date on it."
The trial court in Duval found the evidence sufficient to establish a common-law marriage under Oklahoma law – and thus sufficient to garner marital rights in South Dakota. But the South Dakota Supreme Court disagreed on appeal. To prevail, the Supreme Court held, Hargrave would have had to prove more than an implicit agreement to marry – she would have needed to show express mutual assent to the marriage, or show a declaration of marriage. Without such evidence, the Court concluded, she could not satisfy Oklahoma's requirements and thus could not inherit from Duval's estate as a surviving spouse under South Dakota law.
This ruling will probably garner little attention, as is true for the doctrine of common-law marriage more generally. But despite its radical drop in popularity over the course of this century, common-law marriage should not be forgotten. It is a device that still functions as an alternative way to form a marriage – or to claim with hindsight that one was formed in the past. And given the legal significance of marital status, as the determinant of a wide variety of rights and obligations, we forget about common-law marriage at our peril.
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