What Is Common Law Marriage?
In its most basic explanation, common law marriage is when two individuals establish a relationship similar to marriage but without the legal documents to formally authorize their union. For years, it has been debated that abiding by the same obligations as marriage is all that is necessary to be legally considered a married couple. However, traditional marriage, or formal marriage, is typically recognized through filing a marriage license and conducting a ceremonial wedding, either religious or otherwise. Differing from informal marriages, in most states , common law marriage may be converted into a formal or ceremonial marriage by obtaining an official marriage certificate and participating in a marriage ceremony.
In the early 1970s, about 50 percent of U.S. states still recognized common law marriage; however, now less than one-third of states within the country recognize this type of union. Although there is no formal definition for marriage that is universally accepted, most states take the position of recognizing a good faith meeting of minds between two individuals that may lead to a mutual desire to work together, share responsibilities, and create a long-term commitment.
What Is Oregon’s Law on Common Law Marriage?
Oregon does not recognize common law marriage. As stated in Oregon’s revised domestic relations statutes, "There shall be no common law marriages in this state." O.R.S. 106.670(3). Further, O.R.S. 106.670(1) states: "In this section ‘common law marriage’ means a relationship in which two persons of the same or opposite sex live together as if married without a marriage license or ceremony."
This statute also provides guidance as to how domestic partners can be created in Oregon, if individuals want the legal benefits of a domestic partnership without the legal obligations of marriage. If you are in Oregon and want to be in a long term relationship with someone, you can enter into a Domestic Partnership, which confers many of the same benefits of being considered married without the legal obligations of being married.
Is There Any Other Option to Common Law Marriage in Oregon?
Many couples who cannot qualify in terms of the legal requirements for marriage under Oregon law have options. First, while same-sex marriage has been recognized in Oregon since 2014, couples who do not meet the requirements for marriage can choose to enter into a domestic partnership. A domestic partnership creates a legal relationship between two people who agree to share responsibilities to care for each other. A domestic partnership does not, however, create a presumption of parentage, property rights, rights to support or rights relating to a will or an inheritance.
Contract law is another option for couples who cannot meet the requirements for a marriage. An enforceable contract can provide one member of the couple with inheritance rights, and the legal right to make end-of-life decisions for the other person. Another option is for the couple to draft a cohabitation agreement with their lawyer. A cohabitation agreement is a contract that some couples draft and enter into that outlines the financial responsibilities of each person. Cohabitation agreements are often seen as a prenuptial agreement. They describe what would happen to any estate or marital assets if a couple separated or divorced.
Cohabitation agreements are most common when the couple is not married but is purchasing property together. Cohabitation agreements can also be a smart choices for unmarried business partners. In these situations, it is possible for two unmarried persons to enter into a partnership and share the profits and losses of the company. These contracts often contain provisions about how to dispose of the investment should one of the partners die or leave the company. Cohabitation agreements can also include instructions on how to handle dissolution of the marriage. The person who organizes the agreement has time to negotiate with the other party without worrying about the negotiations impacting on a marriage.
What Do Oregon’s Rules Mean for a Couple Who Moves to Oregon?
The ramifications of this prohibition become important for couples who were in a common law marriage in a state that recognizes it and then later moved to Oregon. In all but the very fewest of cases, a couple coming from a common law state to Oregon is not considered to be in a legal marriage upon their arrival. They are compared to a same-sex couple who married in a different state after the 2016 US Supreme Court decision striking down key elements of the federal Defense of Marriage Act. While many states previously did not recognize any kind of gay rights , Oregon now recognizes full marriage rights for such couples. The same logic applied to common law couples who come to Oregon. Upon their arrival, they do not have a legal marriage, regardless of what their legal status was before coming to Oregon.
What Should Unmarried Couples in Oregon Know from a Legal Perspective?
If you don’t have a marriage license, but you think you may qualify as married by virtue of being married under the laws of a state that recognizes common law marriage, the first thing I tell potential new clients is that Oregon has no law that gives either of you any rights as a spouse with regard to your property, even if you’ve lived together for years.
For example, when people come into our office to ask about their rights to a partner’s property, they often assume that rights of ownership would be obtained just by virtue of being together. They are shocked and surprised to find that there is no property right.
If both of you have been contributing to the costs of running your household, you may be entitled to an economic remedy, as is true with domestic partners and other cohabiting roommates. However, the law is clear that as a live-in boyfriend/girlfriend, those contributions you made to payments on the house, improvement of the house, mortgage interest, taxes, repairs, maintenance, utilities, and other expenses, as well as groceries and meals at restaurants are not going to give you a right to reimbursement or a percentage of gain on the sale of the property. The exception to this is if you made a down payment on the purchase of the property and that was a gift to the other party, you have the right to reimbursement. In that case, you would also be entitled to any appreciation that occurred after that date.
I quite often see partners sign codicils to each other’s Wills, and execute Durable Powers of Attorney and Healthcare Directives nominating the other to be decision-makers if the partner becomes incapacitated and unable to work. This is the most vital thing that either of you can do legally, and it protects each of you in the event of a medical emergency or after death. For instance, if one of you dies and there’s a house that belonged to the deceased, absent any written document naming the survivor as having any interest in the real property, it’s pretty much a cinch that the deceased person’s relatives will fight to get the property for themselves in their own name.
There can also be issues that arise if one of you has a serious medical issue or becomes disabled and there’s no Durable Power of Attorney or Healthcare Directives in place. It becomes very difficult for the other partner to see a physician to get the person’s medical information. When it appears that you’re going to need long-term care or some kind of people or property management service, if you’re planning on having the other partner perform those services, he or she may or may not be allowed to do so. The best practice is to have both a Durable Power of Attorney and a Healthcare Directive that clearly spells out what rights you want your partner to have in the event of your incapacity or death.
All of these instruments make it clear that the two of you are a couple that has the right and privilege of making decisions for each other, and during a difficult time, that can save lots of needless fighting and controversy.
Analysis, Case Studies, and Legal Precedents
Much of Oregon’s case law examining common law marriage involves instances where individuals try to assert the existence of a common law marriage as a means of obtaining rights normally reserved for married spouses, such as spousal support and the right to receive a portion of property acquired during the marriage. This section will examine four notable cases pertaining to common law marital issues in Oregon.
In State of Oregon v. Ncomokam, the Oregon Court of Appeals reviewed the case of a man (Mr. N) who lived with another person (Ms. C) for several years. During their relationship, Mr. N told Ms. C that he was married and had been married for over twenty years, but he could no longer live with his wife due to domestic violence perpetrated by her. Ms. C was aware that Mr. N lived with Ms. W, but she thought they were only living together as roommates.
During this time, Ms. W filed for dissolution of marriage from Mr. N, asserting that their marriage had been dissolved. In her Petition, Ms. W asked for a dissolution of their marriage and a division of the property they obtained during the marriage. Once Mrs. W filed this petition, Ms. C learned that Mr. N was still married to someone else.
Being unaware that Ms. C was Mr. N’s lover, Ms. W eventually came to Ms. C’s place of employment and began punching Ms. C in the face. Ms. C called 911 and fled the scene. When the police arrived, they discovered Ms. C with a swollen face and a bloodied mouth. Due to these events, the Oregon Department of Human Services (DHS) filed a petition adjudicating Ms. W to be a "physically and mentally abusive parent." DHS gained custody of Ms. W’s children and sought to terminate her parental rights. Ms. W responded that DHS clearly should not have custody of the children or terminate her parental rights because simply being married to Mr. N did not in and of itself make Ms. W a physically abuse parent. She also claimed that Mr. N was lying about their marriage and that his acts of domestic violence were not carried out in front of Ms. W or the children.
Under Oregon law , if two persons are married and one of them goes out of state to get a divorce, leaving the children or leaving in the care of the other spouse, the laws of that other state control the proceedings in Oregon. The court also stated that an Oregon court interpreting the laws of another state must presume that the other state had a legitimate interest in the case, unless proven otherwise. In this instance, the Oregon Court of Appeals noted that the Department took no action under that foreign state’s law to discredit it, nor did any of the parties in the action. Thus, since nothing was presented that showed the foreign state’s laws were not legitimate or were against the public policy of Oregon, the court concluded that the foreign state had a legitimate interest in the case.
The Oregon Court of Appeals granted the bailiff’s motion to dismiss the petition of habeas corpus in McMahon v. Campbell, in which Oregon’s state penitentiary director appealed from an order granting a prisoner’s petition for a writ of habeas corpus. In this case, the petitioner conceded the validity of his marriage, but asserted that he did not intend to marry at the time that he and his partner entered into their domestic partnership.
In In Morrison v. Scott, the petitioner, Ms. C, was an Oregon resident who entered into a civil union with a Vermont woman in 2004. They filed a request for dissolution and for adoption when they moved to Oregon in 2009.
Ms. C brought this action in 2011, arguing that same-sex marriages entered into in other jurisdictions were valid in Oregon because there was no rational basis for distinguishing same-sex marriages from heterosexual marriages. Although Ms. C asked the trial court to issue a writ of mandamus, the trial court narrowed the scope of her writ by allowing her equal protection challenge to proceed in the context of her efforts to dissolve the civil union. A week later, the trial court dismissed the case because same-sex marriage was not legal in Oregon. Ms. C appealed the ruling.