The institution of common-law marriage is the process in which a couple can be considered legally married without actually registering their marriage officially. The practice has rapidly been diminishing throughout the country, and the handful of states that still allow it have been in the process of abolishing it, including Oklahoma.
Originally, the Oklahoma judiciary protected the establishment of a common law marriage. In Reaves v. Reaves (1905 OK 32, 15 Okl. 240, 82 P. 490), the Supreme Court held Oklahoma statutes that required a license, witnesses, and a certificate of marriage were merely directory and had no proscriptive effect on the validity of common law marriages. Since this ruling, the Oklahoma legislature has gone out of its way to attempt to override this holding and require marriages in Oklahoma to possess a license in order to contract to be married.
Legal Requirements for Marriages in Oklahoma
43 O.S. §4 provides requirements for establishing a marriage and states “No person shall enter into or contract the marriage relation…without a license being first issued by the judge or clerk of the district court…” This language is further bolstered by the language in 43 O.S. §5 and its superseding documents, which specify what is to be contained within the license and specifically states the following: “The provisions hereof are mandatory and not directory.”
Oklahoma’s intent to abolish common law marriage is even further evidenced by the language within 43 O.S. §7(A) which provides: “All marriages must be contracted by a formal ceremony performed or solemnized in the presence of at least two adult, competent persons as witnesses, by a judge or retired judge of any court in this state, or an ordained or authorized preacher or minister of the Gospel, priest or other ecclesiastical dignitary of any denomination who has been duly ordained or authorized by the church to which he or she belongs to preach the Gospel, or a rabbi and who is at least eighteen (18) years of age.”
Unfortunately, the language contained in 43 O.S. §§§4, 5, and 7 and the legislative intent of the statutes fail to be specific enough to overcome 12 O.S. §2, which states: “The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma; but the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally construed to promote their object.”
Oklahoma’s Legal Definitions of Common Law Marriage
What establishes a common law marriage has been posed to the Oklahoma courts since the state’s founding. The elements and determining factors have continually changed and have been distinguished over time in the attempt to secure a final common law standard in which to follow. Prior to the current definition, older Oklahoma cases determined there were five elements that must be proven by clear and convincing evidence.
The five required elements are:
- There must be an actual and mutual agreement between the spouses to be husband and wife
- A permanent relationship
- An exclusive relationship
- Cohabitation as man and wife
- The parties to the marriage must hold themselves out publicly as husband and wife.
The five aforementioned requirements had been established or upheld by the following cases:
- Quinton v. Webb (1952 OK 294, 248 P.2d 586)
- Estate of Stinchcomb (1983 OK 120, 674 P.2d 26)
- Earnheart v. Earnheart (1999 OK CIV APP 42, 979 P.2d 761)
- Dowell v. Welch (1978 OK CIV APP 1, 574 P.2d 1089)
- Estate of Phifer (1981 OK CIV APP 21, 629 P.2d 808)
However, in 2001 the Oklahoma Supreme Court ruled in Standefer v. Standefer (2001 OK 37, 26 P.3d 104), a common law marriage is formed when “the minds of the parties meet in consent at the same time” and the other elements were merely evidence to be considered to establish the existence of a marriage relationship. The presence of these factors can be persuasive evidence in determining a common law marriage but are not factors which require evidence. The court instead relies on a totality of the circumstances approach by considering all evidence that shows whether there was an intent by both parties to establish a marriage.
There still must be a presentment of clear and convincing evidence of an assent to be married. This language was later distinguished in 2008 by the Oklahoma Court of Civil Appeals in Brooks v. Sanders (190 P.3d 357 [Okla.Civ.App.2008]). This ruling established that “absent a marital impediment suffered by one of the parties to the common-law marriage, a common-law marriage occurs upon the happening of three events: a declaration by the parties of an intent to marry, cohabitation, and a holding out of themselves to the community of being husband and wife.” What evidence leads to the conclusion of these events is still considered as a whole by the courts.
The actual mutual agreement to be in a permanent and exclusive marriage must be a current agreement consented to by both parties. The decision to be married cannot be a unilateral decision and clear and convincing evidence of this actual agreement to immediately enter into a permanent and exclusive marital relationship must be presented, as held within Oklahoma Dep't of Mental Health & Substance Abuse v. Pierce (2012 OK CIV APP 73, ¶ 17, 283 P.3d 894, 899).
Oklahoma’s Common Marriage Laws Used Elsewhere
A South Dakota Supreme Court applied the common law of Oklahoma to a couple whom the circuit court found had entered into a common law marriage while living in Oklahoma and applied Oklahoma law citing numerous cases in its holding in In re Estate of Duval (2010 S.D. 2, ¶¶ 15-21, 777 N.W.2d 380). The court cited Brooks’ three events as well as D.P. Greenwood Trucking Co. v. State Indus. Comm'n (1954 OK 165, 271 P.2d 339), which stated: “To constitute a valid “common-law marriage,” it is necessary that there should be an actual and mutual agreement to enter into a matrimonial relation, permanent and exclusive of all others, between parties capable in law of making such contract, consummated by their cohabitation as man and wife, or their mutual assumption openly of marital duties and obligations. A mere promise of future marriage, followed by illicit relations, is not, in itself, sufficient to constitute such marriage.” Id at. 342. (Emphasis added.)
Duval goes on to conclude that the parties at no time made an implicit agreement to be married and were therefore not married under the common law of Oklahoma. The court reached its conclusion stating the evidence did not establish a specific time when the parties mutually agreed or declared their intent to be married, citing Standefer (2001 OK 37), which stated “evidence [was] clear and convincing that both parties assented to a marriage on Thanksgiving Day of 1988.” Due to the argument that no specific date was presented, the court determined the asserting party did not meet its burden according to the Oklahoma standards of proof.
Burden of Proof in Common Law Marriage is Maintained
Although the elements of establishing a common law marriage have changed over time, the burden of proof has remained the same. The question of the existence of a marriage is “one of fact” and the party seeking to establish the common law marriage has the burden of showing the existence of the marriage relationship by clear and convincing evidence.
The burden of proof being placed upon the parties-to-marry has been established or upheld by:
- Reed v. Reed (1969 OK 95, 456 P.2d 529, 532)
- Standefer, (2001 OK 37¶ 11)
- Maxfield v. Maxfield (1953 OK 390, ¶ 24, 258 P.2d 915, 921)
In 2007, the federal Social Security Administration (SSA) presented a legal opinion in which it was requested whether a former Oklahoma resident would be able to present proof to Nebraska of a legal name change. The applicant presented an affidavit of common law marriage to the Nebraska officials. The Social Security Administration cited Oklahoma case law regarding whether the affidavit by itself met the burden of proof. The legal opinion concluded that Oklahoma did not accept such documents on its own and therefore it was insufficient to meet the high burden of proof established by the Oklahoma common law (PR 02720.040 OK).
Cohabitation, actions consistent with the relationship of spouses, recognition by the community of the marital relationship, and declarations by the parties are clearly weighty evidence considered by the court when ruling on a common law marriage, but also shown by recent case law is an emphasis on the status of legal documents. In the current matter, Petitioner Paul Neumann intentionally kept Respondent Brooke McDonald off all relevant legal documents concerning his business and personal affairs.
A Closer Look at Sufficient Evidence of Common Law Marriage
In Matter of Phifer's Estate (1981 OK CIV APP 21, 629 P.2d 808), the Court placed a large consideration on the testimony of the tax accountants, office employees, and business associates, which contradicted the claimed marriage and showed through executed mortgages and deeds that the decedent did not intend to hold himself out to be married to the asserting party. The marriage-seeking party presented uncontested evidence that the decedent introduced her at certain social and business-related events as his wife, but the court stated, “even though such may have been the case, isolated instances are not sufficient to establish a community-wide reputation that they were a married couple.”
In the event a joint tax return was filed by the parties at some point in their relationship, evidence of a joint tax return is not a final determination of a common law marriage. In Reed v. Reed (1969 OK 95, 456 P.2d 529), a couple, which had been seeking a divorce, began living together shortly after the divorce was finalized. The court did determine a common law marriage existed, but it did not state it began once a joint tax return was filed. Instead, the joint tax return was merely evidence bolstering their intent to be married and the date of the common law marriage began was the specific date they mutually agreed to be married, which was eight years after they had begun residing together again.
The intent of the filing is also a factor considered by the Court in whether a common law marriage existed. The Oklahoma Court of Civil Appeals concluded in Oklahoma Dep't of Mental Health & Substance Abuse v. Pierce (2012 OK CIV APP 73, 283 P.3d 894), the evidence of a tax return filing and the wording of a house deed can be negated by other clear and convincing evidence that a common law marriage did or did not exist. One of the arguments by the prevailing party considered by the court was that the contradictory filing of the tax return was due solely to a recommendation from his Certified Public Accountant (CPA).
Pay Attention to the Assent to Be Married
The assent to be married is the controlling factor for determining whether a common law marriage exists. This concept is further reinforced by Wheaton v. State (85 Okla. Crim. 132, 144, 185 P.2d 931, 937 ), which cites Volume 35 of the American Jurisprudence, reading: “An agreement to cohabit for the present and to marry later is not a marriage although there is cohabitation. There can be no contract per verba de praesenti where the marital status is to become fixed in the future. This rule applies where a future marriage cannot be had until a future convenient time, as when an existing spouse dies or a ceremony can be performed.” (35 Am.Jur. 209 § 41.)
The mere planning to be married is such strong evidence against a common law marriage it is again recited in In re Hornback's Estate (1970 OK 142, 475 P.2d 184), which holds: “It is well established that a common law marriage is contractual and must be founded upon a mutual consent between the parties. We can only conclude from the evidence presented in the present case that the deceased and the plaintiff intended and planned to marry at some future date. However, the mere contemplation of marriage does not establish a common law marriage. A common law marriage is based on a present assumption of an existing relationship, not upon what the parties intended or have agreed to do at a future time. To constitute a valid marriage per verba de praesenti there must be an agreement to become husband and wife immediately from the time when the mutual consent is given.” (Citing Chapman v. State [84 Okl.Cr. 41, 178 P.2d 638] and Peacock v. Peacock [196 Ga. 441, 26 S.E.2d 608]).
The parties must clearly express there was no mutual agreement to be married before an Oklahoma court will find a common law marriage exits. Oklahoma law has made it abundantly clear that a future promise to marry does not constitute a mutual agreement to be married. No specific date or moment has ever existed in which the parties mutually agreed to be married and therefore a common law marriage cannot exist.
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