How is Common Law Marriage Defined?
A common law marriage in Pennsylvania works much differently than formal marriage. A common law marriage is created when two parties agree to be married and co-habituate as husband and wife. While there are some requirements which must be met for a court to rule that a common law marriage exists, most notably that the parties could marry if they desired to do so, typically the parties must merely cohabitate. Once the requirements are met, there is no need for either party to execute a written agreement or for the parties to file anything with any government entity (such as the county Clerk of Courts, marriage certificate office, etc.). Thus, for example, a couple residing together could get married any time they desire, but they could also be deemed to have entered into a common law marriage if a court finds that they met the above requirements and intended to be married.
Because many – but not all – states, including Pennsylvania, have abolished the common law marriage requirement, most couples are not married in this fashion, even if they are cohabitating and in a long-term relationship. In fact, the last common law marriage in Pennsylvania was recognized in 2004. On various websites, you’ll find different answers regarding the status of Pennsylvania common law marriages . Some assert that it is dead, while others predict that it will be abolished by the Pennsylvania legislature after the recent Pennsylvania Superior Court case of say yes to common law marriage. The truth is that, as with anything else in the area of family law, nothing is completely certain. At the end of the day, however, to answer the question posed previously, Pennsylvania has not completely abolished the common law marriage requirement.
As such, it is possible that the parties entered into a common law marriage requirement. Even when the parties answer that they were never married, it is important to consider how old they were at the time they began living together and how long they lived together. For example: if they were middle-aged or older when they began cohabitating and lived together for several years before separating, it is possible that they could show that they had entered into a common law marriage. This will be particularly true if the parties performed all actions that a couple would normally perform if they were legally married. You do not necessarily have to "tell everyone" or wear rings, for instance. However, being cohabitating to have a rental or purchase agreement does help show that the parties intended to live as a married couple.
The History of Common Law Marriage in Pennsylvania
Common law marriages have been legal in Pennsylvania for over 300 years, thanks to the state’s relationship with Great Britain. Prior to William Penn settling in Pennsylvania in the mid-17th century, British common law consigned legal status to married persons dependent upon the behavior of the parties. Penn adopted many of these legal practices and customs, resulting in Pennsylvania establishing itself as a common law marriage state, in which both the common law and statutory law co-existed.
These common law marriages were "formalized" something like a century after Penn’s arrival. In 1784, the Commonwealth enacted legislation which addressed the validity of a marriage between a citizen and someone coming from a foreign country beneath circumstances which rendered the union legally questionable. In 1850, the Commonwealth enacted legislation which "legalized" all common law marriages which took place prior to that year. This was done at least in part because many common law spouses previously married civilly or ceremonially often had no legal means of dissolving their unions.
A change to Pennsylvania’s common law marriage laws came in 1885. Burgeoning railways and improved means of transportation made it easier for individuals to seek union in other states which did not allow for the dissolution of a marriage until certain legal procedures (such as acquiring a divorce) were satisfied. Pennsylvania Senator John M. Read objected, saying that the final resting place of the parties need not be considered a reason to award or deny marital status.
Although other states such as North Carolina, South Carolina, and Virginia operated common law marriage statutes on a statewide level into the 20th century, the Commonwealth disallowed the practice in 2005, when the legislature passed a bill abolishing common law marriages as pertaining to new relationships.
How Common Law Marriage is Currently Recognized in Pennsylvania
In 2015, the Pennsylvania Supreme Court decided the case of Eaton vs. 18 Unnamed Heirs of the Estate of James Weldon, which invalidated a Pennsylvania Supreme Court decision from 1992: In re Estate of Galloway. In reviewing the case, the Eaton court held that due to the fact that the 1996 amendments to the Pennsylvania Marriage Law ("Marriage Law") gave certain rights to same-sex couples, the Pennsylvania courts should treat same-sex couples with respect, and applied the same logic to opposite-sex couples.
As of 2023, as a result of the Eaton court decision, Pennsylvania no longer recognizes common law marriages created after January 1, 2005. As it stands now, the only manner in which a couple can be married under Pennsylvania law, is through solemnization of the marriage under the Marriage Law, after all statutory obligations are met. The prior common law marriage dissolutions and transfer of property case law, such as estate law, intestate succession claims, and contractual rights no longer apply.
Requirements to Establish a Common Law Marriage
To establish a common law marriage, the parties needed to establish three requirements which no longer exist:
(1) an agreement to be, as well as, consider themselves married; (2) live together as husband and wife; and (3) hold themselves out to others as being married. If these requirements were established, then the couple, while cohabitating, created a common law marriage valid at the time of the marriage. While in the past it was certainly necessary for one party to file an action to effectuate the dissolution of such a marriage, in today’s world, the parties can more easily obtain this relief through a divorce action.
The Effect of a Common Law Marriage
The treatment of common law marriages has numerous implications for divorce and inheritance. If it’s determined that the parties were married under common law, such a marriage must be dissolved in accordance with Pennsylvania law. In the divorce context, this means that equitable distribution will be a consideration and claims for spousal support and alimony may very well lie.
In the context of inheritance , another set of statutory pedigree rules apply. The parties status as husband and wife will be considered even if they are determined to have had a common law marriage.
The main confusion regarding common law marriage in Pennsylvania comes down to the requirements to divorce from such a relationship. Many people believe the passage of time eliminates the need to divorce in the same manner as if they were formally married. This is not the case. If the marriage is found to be valid, the parties must file for divorce at the Prothonotary’s office of the county court house as any other divorce would be filed.
Alternatives to Common Law Marriage
There are several alternatives to common law marriage that unmarried couples in Pennsylvania can pursue in order to protect their rights and interests, and those of their children, if they decide not to engage in a formal marriage ceremony.
Cohabitation Agreement: To create an agreement that clearly establishes the financial and other responsibilities of each party, unmarried cohabitating partners may wish to enter into a written cohabitation agreement. Without such an agreement, issues that often arise in divorce litigation, such as spousal support, spousal rights to real estate and equitable distribution, become difficult questions.
Pre-Nuptial Agreement: Some couples, even if they plan to get married, will want to create a pre-nuptial agreement while their relationship is at its best. Pennsylvania law regards pre-nuptial agreements as valid, provided that the agreement was entered into knowingly and voluntarily in order to settle any issues that may arise in the case of death or divorce. In one study, 90 percent of respondents found pre-nuptial agreements to enhance their comfort with engagement. Through a pre-nuptial agreement, each party should be able to preserve the assets he or she brought to the marriage, define which of his/her assets remain separate property, provide for alimony, define the parties’ rights to spousal rights to real estate in the event of divorce or death and allocate property rights upon trial separation or dissolution of the marriage.
Wills: Any couple that has children or that owns property in its joint names should have a will, regardless of whether it plans to marry, in order to ensure that the court does not distribute its assets according to the normal intestacy rules.
Consult an Attorney
While these common law marriage situations do highlight the need for a prenuptial agreement, there are many instances where the existence of a common law marriage may have profound legal consequences that must be addressed with a legal professional. If you recognize yourself in any of the scenarios above , we encourage you to seek legal advice regarding your options. An experienced attorney can help you identify whether your particular facts support the existence of a common law marriage that could be enforced under Pennsylvania law. Our office performs a full range of services related to marriage and divorce for clients in southeastern Pennsylvania. We help individuals avoid regrets by addressing the potential for common law marriage at the outset of the relationship and, after the relationship is over, help to ensure that equitable distribution is performed correctly, taking into account the existence of any common law marriages formed by the parties.