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Common Law and Civil Matters
Linda Goin
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 Archives |
I'm currently slaving over Cora's pedigree. No, she's not a dog. A few near and distant relatives are helping us create a family tree before all traces of stories, photos, and newspaper clippings disappear from the hands of immediate family.
If you've attempted this Herculean feat, you know tales passed down through branches of a tree usually aren't acceptable in court unless backed by valid documentation. Even newspaper clippings and family Bibles have been tossed when attempts are made to claim financial aid or legacies. Establishing the fact of marriage from vital records is paramount in a court case.
What happens when you run across a couple that lived together until death, produced children and shared property yet had no written proof of marriage? Within some hereditary societies - often in today's society in general - the lack of legal marriage records is often considered "living in sin," or "out of wedlock" and rendered as invalid based on opinion rather than historical or legal reference. If you can prove intent, the courts will hear you out.
Common law (in marriage and beyond) dates from the Norman conquest of England at Hastings in 1066 AD. Common law is based on a system where judges rely on rulings made in previous cases and laws developed from precedent. This allows the judge to change precedent dependent on a situation. This is different from civil law, where rules are clearly defined.
There was no solemnization of marriage until Pope Innocent III (c.1060-1216) wrote an ordinance ritual for the Church. This ruling stated a man would need to arrive at the house of the woman, pick her up, and carry her to his house. Five hundred years later, Lord Harwdwicke of London passed a law requiring all marriages to be solemnized in the Church, with publication of banns (announcements) and a bishop's license. This didn't prevent many couples, for whatever reason, from crossing the border into Scotland to enter into informal marriage by consent and agreement. This "common law" marriage practice continued in the colonies and in states in the new Union, unless addressed otherwise. Louisiana was one of those exceptions, as their marriage laws were based on the civil law of Rome.
Even though there were no written requirements for common law marriage in the colonies and early states, validation of marriage was difficult to prove unless the couple declared intent and provided written proof, including witnesses' signatures. It was a wise idea to let the neighbors know the intent and practice as a married couple, also.
By the mid 1900s, many states moved from common law to civil law marriages. If these rules weren't followed, by golly, you weren't married. Today, there are only a handful of states that recognize common law marriage, and these states have mandates as to what constitutes the legality of this contract outside religious context. These four basics include, but are not limited to:
- A heterosexual couple living together in a state that recognizes common law marriage
- This couple lives together for a time specified by their state
- They hold themselves out as a married couple. This means practicing any or all combinations of using the same last name, referring to each other as "my husband" or "my wife" and filing a joint tax return
- Intending to be married
I knew a woman in Colorado who spent thirteen years building a business with a man while she lived with him under the same roof. The man never included her name on business contracts or on property deeds. When he decided to marry another woman, his partner was literally left out in the cold. The case was taken to court, where neighbors confessed she had practiced intent, but her partner didn't. The judge ruled in favor of the man.
Colorado is one state that still recognizes common law marriage. Alabama, Georgia, Idaho, and Texas are included in this roster. Some states recognize common law up to a certain date. For instance, New York recognizes common law until 1902, and between 1908-1933. Georgia recognizes common law up to January 1, 1997, and New Hampshire may recognize common law for inheritance purposes only.
State laws change constantly, and it's up to you to check your status within your state of residence. Whatever that law might be - civil or common - you carry it with you to other states. If you and your partner created a common law marriage in Georgia in 1990 and you moved to Florida in 2001, your intent from Georgia will most likely prevail.
Check your state's laws regarding marriage, and discuss your intent with your partner. This is especially important if you live together, have common or individual property, businesses, or children. You're responsible for the protection of your assets, and - as a woman - you may be given the short end of the stick in court if you don't have something in writing, witnessed by others. You might include a notarized seal on this homespun document for safe measure.
If you live in a state that recognizes common law and you have no intent of marriage with your roommate, assure yourself they aren't telling everyone you both are married. If you have cosigned credit cards or loans with this person, these documents can be used against you in court. Even though these elements alone might not be valid grounds for a common law marriage contract, it can cause headaches if problems arise. Many claims show up after the death certificate is signed, and you might not be around to contest or confirm the validity of your case.
As much as some couples abhor that "piece of paper" symbolizing a legal union by civil law and religious affiliation, it would be a wise idea to have something in writing that validates intent or non-intent. Otherwise, your state might decide what's best for both parties, based on common law.
Oh - by the way, common law and civil law marriages both require a civil law divorce if you and your partner call it quits. The only time you don't need a divorce is when you're not married!
Until Next Week,
Linda Goin
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