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:
- District of Columbia
- Rhode Island
- South Carolina
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.
October 4, 2009 Sunday at 4:11 pm