On November 23, 2004, Governor Rendell signed a bill abolishing common law marriage, with January 1, 2005 being the last date on which it was possible to enter into such a marriage.

Norma Chase
Attorney at Law

220 Grant Street
Pittsburgh, PA 15219
(412) 471-2946

May 20, 2002

Gregg Warner
Counsel
Senate Judiciary Committee
Room 19E
Capitol Building
Harrisburg, PA 17120

Re: Senate Bill 1233 (abolishing common law marriage)

Dear Mr. Warner:

I have practiced family law in Pittsburgh since 1978. My experience is that the common law marriage doctrine is the source of a great deal of false hope, confusion, and grief.

It is bad enough to have to tell people they have no marriage; it is worse to have to tell them they may have incurred liabilities as a result of their assumptions about the law. The first question I ask prospective clients who tell me they are in a common law marriage is "When did you get married?" The usual answer is "We're not." Then it turns out that the caller is on her partner's medical coverage as his common law wife, filed her taxes as single because he had IRS problems she didn't want to get involved in, and can't understand why I think she could be in some trouble.

The law was last laid down in Staudenmayer v. Staudenmayer, 714 A. 2d 1016 (Pa. 1998). In that case, the Supreme Court of Pennsylvania made clear, or tried to make clear, that there is one way, and only one way, to create a common law marriage in Pennsylvania: through the exchange of words of present intent. There are, however, two ways of proving one: through direct evidence of the vows, and through circumstantial evidence that the behavior of the parties was that of a married couple. Direct evidence is expected when both parties are alive, and circumstantial evidence may suffice if one party is dead and the other disqualified from testifying by the Dead Man's Act. 42 Pa. C. S. 5930; see also 20 Pa. C. S. 2209 and In re Estate of Corace, 364 Pa. Super. 269, 527 A. 2d 1058 (1987).

It is clear from Staudenmayer that common law is just a different way of getting married in Pennsylvania. The marriage created by the magic words is an actual, de jure marriage, not a legal fiction supporting an equitable remedy.

It is fiction, however, that people regularly get married that way.(1) If they did, we would only be changing what people who have made a decision to marry have to do in order to carry it out. Nobody would care too much.

It is my sense that those who want to preserve common law marriage value it not because it provides a quick alternative method of getting married but because its existence makes it possible for one party in a relationship resembling marriage to be treated as the surviving spouse of the other. Here's how one commentator put it when Kansas was considering abolition some years ago:

By arguing that a marriage license is easy to obtain and common law marriage thus not necessary, the Family Law Advisory Council makes the assumption that a couple reaches a reasoned decision to be married when they begin their common law marriage cohabitation. This assumption ignores reality, because if a couple is consciously entering into a marriage relationship, they would obtain a license. Rather, common law marriage is a relationship that people establish over time, through their actions which imply a marriage-like relationship. [Nancy G. Maxwell, Can Kansans Live Happily Ever After Without Common Law Marriage?, The Circuit Rider, Volume 20, No. 3 (1981), (2)]

While this is not the law of Pennsylvania, it is the reality of how almost all remotely credible common law marriages come into existence.

The people in such "marriage-like relationships" are the people, I believe, whose statutory benefits the preservationists are concerned about. These are the women that can get Social Security to recognize them as widows even though Staudenmayer would not recognize them as wives. Here's a more detailed picture of the outlook for a woman in such a relationship:

(1) If she leaves the relationship and seeks support or divorce, she is up against Staudenmayer in an adversary proceeding. Her claim will be adversely affected by any conduct inconsistent with a marriage.

(2) If her partner dies in a work-related accident, she is, again, up against Staudenmayer: the Dead Man's Act does not apply to Workers Compensation proceedings, which are, in addition, adversary proceedings.

(3) If she seeks a share of her deceased partner's estate, she gets the benefit of the Staudenmayer exception permitting circumstantial evidence to suffice. She is in an adversary proceeding. She has a chance, though.

(4) If her partner had a pension, her prospects of getting a surviving spouse benefit will depend on the pension plan's practice with respect to claims based on common law marriage. That practice may change over time. (I know of a municipal pension plan that requires common law claimants to obtain a declaratory judgment.)

(5) If she seeks a widow's benefit from Social Security, she can probably get it: an administrative decision will be made in a nonadversary context. The SSA may never hear about any conduct inconsistent with marriage, and is not too rigorous about words of present intent; it is enough that Pennsylvania recognizes common law marriage.(3) She will face delay while she rounds up affidavits that the couple held themselves out as husband and wife.

Social Security benefits are the consolation prize in this situation. But I would be reluctant to advise a potential claimant that she can count on getting a survivor benefit from Social Security if her partner dies (or a spousal benefit if he reaches old age or becomes disabled). Social Security could change its approach to the common law issue at any time.

Most troublesome, however, is that the woman in this situation is better protected financially against her partner's death or disability than she is against his desertion. And, if she is in an abusive relationship with someone on whom she is economically dependent, Staudenmayer makes her departure financially dangerous. Not only will she be unable to obtain economic relief, but she may be replaced by a new partner who may ultimately end up with the Social Security benefits. I would never want to ask a battered woman, "Can you hang in there until he dies?"

The interests of those already in common law marriages, or some reasonable facsimile thereof, would be protected by grandfathering existing common law marriages and promoting voluntary ceremonial reaffirmation and voluntary registration.

The Legislature could, of course, abrogate Staudenmayer and adopt some sort of conduct-based definition of common law marriage. I am not aware of any serious proposal along this line. Moreover, a liberalized definition of common law marriage would create a different kind of confusion: lawyers would not be able to give clients definitive answers as to their marital status. There are too many purposes for which it matters when a marriage began. Equitable distribution made it matter in Staudenmayer. And the IRS does not recognize a filing status of "married, sort of."

When two people hold themselves out as married, this could mean they intend to be married. It could also mean that one party is engaging in wishful thinking and the other is avoiding a confrontation by colluding in the pretense. I sometimes wonder what would happen to a partner whose response to being introduced socially as a spouse was "We're not married." I wouldn't want to be standing too close to the couple.

We should not encourage people to believe that pretending long enough will make a wish for marriage come true. And we should not be imposing the liabilities that go with marriage on those who have not made a decision to marry. The law should provide a bright line, and should not endorse creeping matrimony.

Accordingly, I do not believe that we need to preserve common law marriage -- in any form -- for the benefit of those not yet in relationships resembling marriage. Abolition will eliminate the confusion for non-grandfathered cohabitants; they will not need to consult lawyers to figure out whether they are married. We expect criminal statutes to be plain enough to give fair notice of the prohibited conduct. We should expect the same clarity from our marriage law.

For a person who desires marriage, whether and how long to stay with a partner who does not want to marry will remain a painful decision, but it will be a decision unclouded by delusions about common law marriage.

I have heard it suggested that the problem is not with the law but with the confusion about it, and that the solution is to educate people about what the law really says. I don't think this will work. Even if ability to recite the Staudenmayer standard were made a prerequisite for middle school graduation, application of that standard to diverse factual situations is problematic. The line between words that express an intent to marry and words that express an intent to pretend to be married can get pretty thin. So can the line between present and future tense. In Commonwealth ex rel. McDermott v. McDermott, 345 A.2d 914 (Pa. Super. 1975), the Superior Court characterized the distinction as "tenuous" and quoted legal historians Pollock and Maitland as follows:

Of all people in the world lovers are the least likely to distinguish between the present and the future tenses[.] [Id. at 545, note 2.]

Education of the public on the existing law would not eliminate credibility contests on the issue of what words were spoken. See generally Goldwyn on Oral Contracts. It would not eliminate the temptation, in a common law marriage that became unhappy, for one or both partners to take the easy out and pretend that the marriage never took place.

What we need, I believe, is a careful phaseout of common law marriage. It is not enough to simply abolish it and spread the word that it has been abolished as of a particular future date. Those who think they already have a common law marriage will need legal advice. (I'm predicting that the number one question lawyers will get will be "What if we don't have the whole seven years in by that date?")

Here are my specific recommendations:

(1) Amend the marriage law to provide for a "reaffirming existing marriage" option on license applications. Without this, an application for a license may be perceived as a disclaimer of the existing marriage. The parties seeking reaffirmation by ceremony should not have to prove the existence of the common law marriage or to state its effective date (except for stating, after abolition, that it took place prior to abolition). It should be enough that they consider each other to be husband and wife. The ceremonial marriage would serve as an amnesty of sorts for past ambiguous conduct. No Staudenmayer inquisition would take place unless it became necessary, at a future time, to determine exactly when the parties became husband and wife.

(2) Amend the marriage law to make self-solemnized marriage available to any couple. The current statute, 23 Pa. C. S. 1503(b), provides for solemnization by a religious society when one party is a member of that society. The next section, 1504(b), specifies the form of the duplicate certificate when the "marriage was solemnized by the parties themselves." These provisions recognize the longstanding practice of the Religious Society of Friends.

However, many Quaker-style marriages do not strictly conform to the Marriage Law. Many non-Quakers marry "after the manner of Friends." Pittsburgh Friends Meeting does not require either party to a "marriage under the care of the meeting" to be a member of a meeting, although one party will usually be at least a longtime attender. A marriage ceremony that does not perfectly conform to the Marriage Law is not a problem in a state that recognizes common law marriage; it could be a problem if common law marriage is abolished.

Self-solemnized marriage has always appealed to those with philosophical objections to having a third party marry them, and a Quaker-style ceremony might appeal to a couple reaffirming a common law marriage.

(3) Create a purely voluntary registry for joint affidavits of common law marriage. Here's some possible language:

(a) The parties to a common law marriage entered into prior to [abolition date] may execute and record an affidavit attesting to the existence of such marriage. An affidavit executed prior to that date may, but need not, state the date on which the parties entered into the marriage. An affidavit executed on or after that date shall state sufficient facts to establish the existence of the marriage prior to that date.

(b) If the parties execute the affidavit separately, the date of the second execution shall be considered the date of execution.

(c) Any such affidavit may be recorded in the office of the Register of Wills in the county of residence of either party. Affidavits executed by only one party and affidavits that do not comply with paragraph (a) shall not be accepted for recording.

(d) In any proceeding in which the marital status of either party is at issue, an affidavit executed prior to [abolition date] and recorded within 30 days of its execution shall create a rebuttable presumption that a common law marriage existed between the parties as of the time of its execution.

(e) Other statements in an affidavit, and affidavits to which the presumption created by paragraph (d) does not apply, shall be given such weight as the factfinder may deem appropriate.

(f) The validity of a common law marriage entered into prior to [abolition date] shall not be affected by the failure of the parties to execute such an affidavit.

I'd like the recording to be free, at least for a transitional period, but that may be too much to hope for.

(4) Amend the Dead Man's Act and the Decedents, Estates and Fiduciaries Code to permit alleged common law spouses to testify to the words of present intent. The statutory bar to this testimony is the source of the Staudenmayer proof dichotomy and the misconception, still around notwithstanding Staudenmayer, that you can create a common law marriage in two ways, words of present intent or cohabitation and holding out. (As of this writing, there are at least two Pennsylvania law firm web sites that say this.)

Kill the dichotomy, and it becomes easier to kill the misconception. For decades to come, we will still periodically need to explain to clients what common law marriage was. Also, some people in imperfect common law marriages will want to cure the defects and create a Staudenmayer-compliant one (perhaps with their oldest child running a camcorder) prior to the abolition date. They should have clear and accurate information.

The window of time during which a bogus claimant could escape the issue of tax returns would be limited. For example, if 2004 was the last year in which a common law marriage could be created, someone claiming to be the surviving spouse of a person who died in May 2006 would have gone through two tax seasons with the decedent. The longer the alleged marriage, the easier it should be to find external indicia of it or to determine from the lack thereof that there was no marriage. Lucid claimants would be expected to testify to the words of present intent.

(5) Provide for a longer transition period. Sixty days is inadequate. I would like to see common law marriage bite the dust at the end of a calendar year, so that ten years from now I can quickly weed out groundless claims of common law marriage by asking the client what year the marriage took place.

More importantly, we face a massive outreach task. England abolished common law marriage in 1753, yet more than half of its population still believes that cohabitation for a specified period of time creates a marriage. (John Carvel, Big rise in support for unmarried parents, The Guardian, November 26, 2001.) We've got our work cut out for us. While I am confident that the organized bar will meet the challenge of disseminating the necessary information and making pro bono legal advice available to impacted indigents, I would estimate that we need at least two years if we are to phase out common law marriage in a manner that minimizes harm.

Yours truly,

Norma Chase

cc: various interested colleagues

***

Notes:

(1) I understand that there was a time, before my time, when common law marriage with actual albeit informal vows was commonplace. I would suspect that most Staudenmayer-compliant unions, and most unions in which the parties can show years of comporting themselves as a married couple in every aspect of their lives even though they are a little foggy on the question of vows, involve couples well past middle age.

(2) Kansas presently retains common law marriage.

(3) Social Security's understanding of Pennsylvania law is as follows:

An agreement to be husband and wife is essential to establish a common-law marriage in Pennsylvania; however, this agreement is implied if the parties cohabit as husband and wife for many years unless evidence indicates the parties did not agree to be husband and wife. [GN 00305.075, State Laws on Validity of Marriages Entered Into Without a Ceremony, Social Security Administration.]

EXPLANATION OF LAW AS OF TIME OF THIS LETTER

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