COMMON LAW MARRIAGE IN PENNSYLVANIA
NOTE
THAT THIS PAGE IS IN THE PAST TENSE. IT EXPLAINS WHAT THE LAW WAS, AND THIS
STANDARD WILL GOVERN COMMON LAW MARRIAGES ENTERED INTO BEFORE JANUARY 2, 2005.
There are
few legal subjects on which the general public is more misinformed than this
one. The most popular myth is that seven years of living together makes two
people married. This is complete and absolute nonsense.
Other
people think they will have a common law marriage if they live together, hold
themselves out to the community as a married couple, and handle their legal
affairs (property, taxes) as a married couple. This is also a myth.
Common
law was just a different way of getting married in Pennsylvania.
In
Pennsylvania, two unmarried adults could create a common law marriage by exchanging
words of present intent -- in essence, marriage vows. "I take you for my
husband." "I take you for my wife." (These did not have to be
the exact words, but they had to be expressing present intent rather than an
intent to marry in the future.) If they did this with the intent of forming a
marriage, they had a marriage the minute they spoke the words. If they became
unhappy with the marriage, they needed a divorce. They were in the same
position as a couple that just had a marriage ceremony.
Neither
consummation of the marriage nor cohabitation was required. However, in a case
where one party claims the vows were made and the other party denies this, the
court will look at how the parties conducted their lives. Did they live
together? Did they introduce themselves to others as husband and wife? How did
they file their taxes? The purpose of this inquiry is to help determine which
party is telling the truth about the vows. If there is no claim that words of
present intent were exchanged, there is no marriage no matter how long and how
consistently the parties acted as if they were husband and wife.
When one
party is deceased, and the other party seeks a share of the estate, special
rules apply. Statutory law prohibits a person claiming to be the surviving
spouse from testifying about the creation of the marriage. The purpose of the
law is to prevent fraud against estates.
In cases
where the claimant is barred from testifying about the creation of the marriage
by this law, but can produce testimony and documents to show that the parties consistently
conducted themselves as husband and wife, the court may consider this as
circumstantial evidence that vows were exchanged and may conclude that there
was a common law marriage.
Unfortunately,
there have been a number of court decisions involving estates in which a court
took the circumstantial evidence approach without explaining that it would
expect direct evidence of the vows if both parties were alive. This is part of
the reason many people believe that acting as if you were married makes you
married. There is a 1998 Pennsylvania Supreme Court decision that attempts to
end the confusion. Staudenmayer v. Staudenmayer, 552 Pa. 253, 714 A. 2d
1016 (1998).
Another
twist: the statutes that exclude the survivor's testimony about the vows do not
apply to claims after someone's death that do not involve the deceased person's
money or property. For example, a pension fund may say to a claimant, "We
will pay you a surviving spouse benefit if you get a court ruling saying there
was a common law marriage." In that situation, the court will expect
direct evidence of the words of present intent.