Archive for October 4, 2009

Common Law Marriage In the United States of America

October 4, 2009 Craig Family History, Genealogy

When I discovered that my maternal grandparents likely had no marriage certificate, someone suggested that that meant they had a “common law” marriage.   Maybe, maybe not.

The term “common law marriage” is frequently misunderstood.  Many believe if a couple co-habits for a certain fixed period of time, they have a common law marriage.  Some believe that if a couple produces children together, they have a common law marriage.  In fact both of these conceptions are incorrect in the United States.

Sop what exactly is “common law marriage?”

“Common law marriage” is also referred to as “informal marriage.”   Thar means that the couple became married without the usual formalities such as a licence, banns, and a ceremony.  In Rome and in the early Christian church, all marriages were informal.  A couple desiring to be married could simply co-habit and declare their mutual consent that they were married.  This informality, allege some, led to “clandestine” marriages or even sham marriages.   At the very least it would seem to have created some confusion as to the requisite elements of a valid marriage.

The Roman Catholic Church at the Council of Trent in 1563 for the first time imposed formal requirements on marriage.   These include that the marriage be witnessed by a priest and two other individuals.  The Church also began to require “banns of marriage”: a formal announce of the intent of tow parties to be married, which was required to be read at Mass on Sundays and Holy Days for three consecutive weeks before the ceremony.  The purpose was to allow any knowledgeable person to raise objections to the proposed union, such as lack of age, lack of consent, a prior unannulled marriage, or sanguinity issues. (The Catholic Church abandoned the publication of banns in 1983).

In England, informal marriage continued, in part because of the conflicts between the Church of England and the Roman Church.  However,  in 1753, Parliament passed the Marriage Act, which abolished informal marriages and instituted Roman Catholic-like requirements for the solemnization of marriage.

The Marriage Act 1753 did not apply to the North American colonies.   Thus, informal marriage (or “common law” in the sense non-statutory marriage) continued to be practiced in many of the colonies, although many of the colonies had adopted statutes similar to the Marriage Act.

In 1877, the United States Supreme Court was confronted with the issue of  common law marriage (or as the court put it, “informal marriage by contract per verba de praesenti.”)  The issue arose in a dispute between two men claiming the same real property.  Miester v. Moore, 96 U.S> 76 (1877).   Meister claimed that he had purchased certain lands in Michigan from the wife and daughter of William Mowry, deceased.  Moore claimed that he had purchased the same lands from the mother of the deceased Mowry.  If Mowry had died unmarried and without children, then Moore’s claim would be valid.  But if Mowry indeed had been married with “issue” (a child), then Meister’s claim would be valid.

Meister claimed that Mowry had married a woman in 1845 with whom he thereafter cohabited and had a child.   Moore claimed that Mowry’s marriage di not comply with the formalities of the Michigan marriage statute, and thus was invalid.  The U.S. Supreme Court, relying in part on a decision by the Michigan Supreme Court, held that the evidence atg leats showed an informal contract of marriage between Mowry and the woman involved.  The Court said: “That such a contract constitutes a marriage at common law there can be no doubt, in view of the adjudications made in this country, from its earliest settlement to the present day.”   Concenrin g the statute, the Court decieded, “No doubt, a statute may take away a common-law right; but there is always a presumption that the legislature has no such intention, unless it be plainly expressed.”  The Michigan statute had no plain disapproval of informal marriage. Citing the eminent jurist Simon Greenleaf, the Court concluded

‘Though in most, if not all, the United States there are statutes regulating the celebration of marriage rites, and inflicting penalties on all who disobey the regulations, yet it is generally considered, that, in the absence of any positive statute declaring that all marriages not celebrated in the prescribed manner shall be void, or that none but certain magistrates or ministers shall solemnize a marriage, any marriage, regularly made according to the common law, without observing the statute regulations, would still be a valid marriage.’

As a result of the Meister case, most states adopting marriage statutes made specific decisions as to whether common law or informal marriage would be allowed. Only a handful states today permit “common law marriage.” These are:

  • Alabama
  • Colorado
  • District of Columbia
  • Iowa
  • Kansas
  • Montana
  • Oklahoma
  • Rhode Island
  • South Carolina
  • Texas
  • Utah

There are a few states that recognize informal marriages which were contracted for up to the time they were statutorily abolished in those states:

  • Georgia (until January 1, 1997)
  • Idaho (January 1, 1996)
  • Ohio (October 10, 1991)
  • Pennsylvania (January 1, 2005)

Colorado’s statute is a fairly typical one in the states where common law marriage is still permitted.  Both spouses must (1) be legally free to contract a valid ceremonial marriage, (2) hold themselves out as husband and wife; (3) consent to the marriage; (4) cohabitate; and (5) have the reputation in the community as being married. See Colo.Rev.Stat. section 14-2-104; In re J.M.H., 143 P.3d 1116 (Colo. App. 2006).  Most states that allow informal marriage have similar requirements.  Notice there is no time element specified, nor is there any requirement that there be children  of the marriage.

Spouses in common law marriages have the same rights and obligations as spouses who have entered into formal marriages.  There is no such thing in any of the United States as “common law divorce.”  A common law marriage must be dissolved in the same manner as any other marriage, i.e., by annulment, divorce or death.

Parties to an informal marriage don’t have to file any documents in most states, until they come up against a specific need to prove their marriage.  An affidavit or notarized declaration may work in many states.

Things can become complicated when a common-law couple moves to a non-common-law state.   The Full Faith and Credit Clause of the United Sates Constitution theoretically protects such couples:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.

That’s part of Article IV, section of the Constitution. On its face, it would seem to require as a constitutional matter recognition that a marriage valid in the state where it was contracted is valid in every other state.   But the Supreme Couurt has applied a “public policy exception” to the Full Faith and Credit Clause.  Thus, a state may determine whether recognition of an act under  another’s law “would contravene [its own] policies or interests,” giving “due regard to the duties, obligations, rights and convenience of [its own] citizens.”  Conceivably there may be circumstances where a common law marriage in one state is not recognized in another state.

Implications for Genealogists

Genealogical researchers cannot assume that the absence of any record of a marriage points for or against a common law marriage. The facts of the situation must be known as well as the law of the particular jurisdiction at the time of the marriage.  As Miester v. Moore illustrated, determining whether or not there was a valid marriage may become important  in tracing property and may be a factor in certain social contexts.   It’s another good reason not to just gather names, but to also understand the stories behind the names.

I have given an overview here of “common law” marriage in the United States. I hope our friends in Canada, Australia, New Zealand and the UK can enlighten us about formal/informal marriage in their countries.

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A Vivid Childhood Memory: My Mother is Mugged for a Picture of Elvis

October 4, 2009 Craig Family History, Genealogy

Randy Seaver’s “Saturday Night Genealogical Fun” calls for a vivid childhood memory.

Two weeks before my birthday in 1958, we sailed out of New York harbor aboard the venerable USS General George M. Randall, headed for Bremerhaven, West Germany. Every bit of the trip was a new adventure. Leaving New York, an escort of fire boats sprayed a misty salute to the Randall as she passed the Statue of Liberty. It would be more than forty years until I saw the Statue again.

Neither of my parents had ever been on a ship before. For us, me and my siblings (including one in utero), it was the ultimate adventure.

Oh, there had been some hubbub that morning around Brooklyn Army Depot from whence we had departed. For some reason, the press was paying particular attention to one of the soldiers who was also travelling to Germany aboard the Randall; a recent draftee from Mississippi whose name was Elvis Aron Presley. The significance of this was mostly, but entirely lost on me. I was more interested in the ship itself and our new home in Germany than anything else. But throughout the voyage, there throngs of other passengers constantly surrounding Pvt. Presley. And, I’m told, he played the piano during the ship’s variety show one night.  (I recall the show, but not Elvis specifically).

We arrived at Bremerhaven on schedule–on my birthday. If the significance of the presence of our fellow passenger the young from Mississippi had not impressed me before, it certainly as the sm the ship docked at Bremerhaven. This video captures the moment pretty much as I recall it, watching from the deck before we disembarked.   I recall the crowd chanting, “Elvis! Elvis! Elvis!” as the ship was being moored.

After we finally left the ship, most of the commotion was still going on. My dad had taken me by the hand and we found ourselves in a small U.S. post exchange (PX). Dad said, “We haven’t forgotten that today’s your birthday, son. But under the circumstances, we really couldn’t celebrate it. So look around the store and pick out any thing you’d like.” I chose a a big package of Oreo cookies. I have no idea why. But it felt good; it felt right.

We boarded a train later that day to take us to my father’s new duty station at Frankfurt am Main.
Elvis, too, got on a train headed for a place called Friedberg. The last we saw of him at the port was as his train departed.

Although as an impressionable child, I was mainly pre-occupied with thoughts about the [very real possibility of] the Soviet Army attacking Germany while we were there, it became apparent that a major portion of the population of West Germany was pre-occupied with and idolized Elvis Presley and believed that all Americans did too. These Germans were always asking about all things Elvis and wanting buy records or Elvis memorabilia. Some would go door to door, practically begging for something Elvis.

By 1960, we had moved to Karlsruhe and Elvis was about to depart from Germany. We lived in an U.S. built housing area called Paul Revere Village. I walked everyday from our apartment on Tennessee street to Karlsruhe American Elementary School with my classmates Benny Broadwater and Delores Nelson, who both lived in our building.

One day when I was home and Dad was not, there came knock the door of our ground floor apartment. It was a generally safe neighborhood. My mother, then just 28 years old, opened the door to a young German man in a blue shirt and white pants. He was perhaps in his late teens or early twenties. His hair was oily and stringy and for those days, long.

“Ja; kann ich ihnen helfen?” my mother said in her pidgin Deustch.

“Do you have any photographs of Elvis?” the young man said in excellent English.

“Nein. No, we don’t,” Mom replied. It was a lie; I knew that we had at least one portrait-type photo of Elvis somewhere in the apartment.

I was standing directly behind my mother as she began to close the door. But the young didn’t make a move to leave and Mom hesitated for a moment.

I don’t know if I or she saw the switchblade first. The man had put his foot into the doorway. Reacting almost as if in slow motion, my mother shoved the door as hard she could against his foot. The door popped back open; the man stood there brandishing the knife. But he had moved his foot back. He said menacingly, “Give me a picture of Elvis! All Americans have pictures of Elvis!”

My mother shoved on the door again and this time, it closed completely. She hastily secured the several inside locks. Then she took a moment there in the entryway to breathe deeply and regain her composure. She went to the telephone and called the U.S. military police. No one had been hurt, and the man, who I later heard was nineteen years old was apprehended by the local polizei.

That’s a childhood memory I’ll never forget!

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