Common Law Marriage Explained
Common law marriage is a nontraditional method of creating a legal marriage relationship between parties. For couples to enter into a common law marriage, they do not have to follow any legal formalities of marriage such as a marriage license or a marriage ceremony performed by an authorized celebrant (i.e. minister, judge, etc.). Instead, when they begin cohabitating they can opt to enter into a legal marriage by evidence of their intention to enter into a legal marriage relationship and by cohabitating.
There are at least five common law marriage requirements – the parties must 1 . ) be of legal age to contract a marriage, 2.) intend to create a legal marriage relationship between them, 3.) cohabitate, 4.) be free to contract a legal marriage relationship with each other, and 5.) the relationship must not be prohibited by law. However, since not every state recognizes the existence of a common law marriage relationship, i.e. Kansas no longer grants them, the parties’ intent to create a legal marriage between them must also be to have a common law legal marriage relationship recognized by the state where they reside.
A Historical Overview of Common Law Marriage in Kansas
Historically, Kansas recognized common law marriages. This meant that simply living together as husband and wife without a formal marriage ceremony would be sufficient to establish a legal marriage in Kansas.
In 1854, it was decided by the United States Circuit Court for the Territory of Kansas that marriage was a common law institution. The Kansas Supreme Court later endorsed this view in an 1861 decision. There have been no significant cases decided on the issue since then.
The Kansas legislature first limited the jurisdiction of common law marriages in the 1871. A Second Legislative Assembly passed an act requiring that foreign ministers perform marriage ceremonies and that the judge of the Supreme Court or district court, a probate judge, or a county court judge also be available to do so. The act also provided that the minister or judge must sign off on a certificate that the marriage was valid. When the marriage did not occur within the state, the act required the certificate to be returned to the Clerk of the Record of Deeds. The act also established that no marriage would be made legal unless performed by a minister of a church or minister authorized to solemnize a marriage under laws of another state or foreign country or by a district or probate judge.
The 1872 Common Law Marriage Act removed any such jurisdiction from justices of the peace and individuals regarded as a minister of the gospel whose successorship had not been communicated by his or her proper ecclesiastical authority. As such, even though common law marriages were recognized, there existed a requirement that a couple have a religious minister solemnize the marriage – or at least someone who could be verified as such – and also file the appropriate paperwork with the Register of Dews. Even with this requirement in place, however, individuals still tried to get around the law by having no interference or with little or no input by a minister or judge.
At the turn of the century, the local legislature repealed the acts pertaining to common law marriage entirely. Common law marriages, however, were still recognized by the courts. In 1947, the United States Electrical Workers sued Defendant Anderson, who refused to pay an alleged common law wife of a member who claimed she was entitled to the benefit of the pension. The 1948 Kansas Supreme Court case (and the only common law marriage case decided after the repeals) held that a common law marriage could be valid without a statement of your intention to marry or public or private consent to one another, particularly an intent to marry required under the 1905 statutes and the former common and statutory law.
Requirements for a Common Law Marriage in Kansas
In Kansas, a common law marriage involves two people who are over 18 years old and who have been living together as a married couple and holding themselves out to the public as a married couple. In other words, the parties must consider themselves married and have publicly admitted to being married. Even though common law marriages are not explicitly recognized in Kansas, there are multiple Kansas cases talking about common law marriages. Because of this, common law marriages are legal in Kansas. Some of the cases where common law marriages show up have dealt with whether the relationship is excluded as marrying within a particular family or whether the parties’ conduct amounts to a common law marriage, when the parties make a claim that they are (a) husband and wife, (b) spouse, (c) married, or (d) husband and (e) wife. In order for a court in Kansas to determine whether a common law marriage exists, the court must listen to the evidence and decide whether the parties are legally married. In the case of Becker v. Becker, the Kansas Supreme Court provided some guidance on whether a common law marriage exists: The parties must be competent to marry . . . Hold themselves out to the public as husband and wife . . . Domiciled together . . . Consented to and intend a marriage relation . . . If the parties are not claiming a common law marriage, there is no legal basis for allowing a claim of a common law marriage. In Becker, there was a dispute about the intent of the parties. One party said that the parties purchased a car together and intended that to be a step in their marriage plans. But the other party said that the purchase of the car was simply a mutual convenience. In most of the cases where a common law marriage was found, one party was trying to have their relationship recognized as a marriage. In Becker, neither party wanted the relationship to be legally recognized. Both parties wanted a divorce. Each character, directly or indirectly, claimed to be the injured party. Each alleged that he or she had been defrauded into the marriage to the exclusion of the other. . . . Becker claimed an agreement that the couple would separate and he would retain his legislator position; O’Leary claimed the marriage occurred before Becker filed for office administration. O’Leary points to Becker’s "reputation as a public servant," and "the pride of having her name associated with a successful man of her party" as discounts to Becker’s testimony. Becker counters with testimony from well-respected officials and news reporters that O’Leary’s reputation was not that of a stable political wife. Becker’s reputation was that of a person who shared, supported, and expected a political career. . . . It is agreed in the record that Becker sought his marriage to O’Leary as an opportunity to stay on the legislative payroll with O’Leary assuring she would work behind the scenes. The Kansas Supreme Court made the Court of Appeals remand the case and asked it to determine what the parties’ actual intentions were about the existence of their marriage.
Legal Implications and Obligations
Legal Rights and Responsibilities in a Kansas Common Law Marriage
As the intestine case above indicated, the legal rights and responsibilities of a common law marriage in Kansas are the same as for any couple that entered into a ceremonial marriage. A common law marriage is no less legally binding than a traditional marriage under Kansas law. That means common-law spouses have the same legal rights and obligations as spouses who were married in a formal ceremony. Those rights and obligations can touch on all aspects of your life, from your finances to your health.
In the event of a divorce, common-law spouses have the same right to property as any legally married couple in Kansas. This means that if you and your common-law spouse were to separate, both you and your spouse would have equal property rights to assets acquired during the course of the marriage. There are a few caveats to this, as there are in any divorce. Any property you owned prior to your common-law marriage – including financial accounts, real estate and personal possessions – should be legally yours alone unless otherwise stated. Similarly, any property gifted to you or inherited by you belongs to you alone.
What you and your partner do with property you have acquired together can wind up having long-term consequences under Kansas law. Like the standard family court division of marital property and debts, this division can delay the final separation of assets for some period of time. If the couple has been married for several years, the settling of property and debts is all but guaranteed to be a lengthy process.
Ending a Common Law Marriage
Unlike a ceremonial marriage, a common law marriage is considered dissolved by the entry of a decree of divorce or death of one of the parties to the marriage. Neither party is required to file a Petition for Divorce with a Court as in the case of a ceremonial marriage. However, the burden of proof that the common law marriage is dissolved may fall on the party so claiming.
Just as in the case of a ceremonial marriage, either party to a common law marriage may file a Petition for Divorce with the appropriate district court. It is important to note that a common law marriage is not dissolved by a separation , legal separation or abandonment. A common law marriage may also be invalidated by a decree of annulment. However, under Kansas law, a Court will only order an annulment when it is determined that there was no common law marriage in the first place.
Although marital status resulting from a ceremonial marriage may be of no consequence following dissolution, marital status resulting from a common law marriage may become very relevant in certain Family Law matters in the future.
Myths and Stigmas Surrounding Common Law Marriage
Due to the prevalence of misinformation and common misconceptions, many people find common law marriage to be a rather confusing concept. The first and most important misconception to dispel is that common law marriages do not, and in fact cannot, exist in the State of Kansas. While some states recognize common law marriages, Kansas is not one of these eight states. Additionally, some people mistakenly assume that all relationships end with a presumption of common law marriage, when in reality, no such presumption exists under state law. This means that if you were to move in with your boyfriend or girlfriend and share household responsibilities such as chores and paying the bills, you will not necessarily be presumed to have entered into a common law marriage.
A third common misconception relates to the requirements for entering into a common law marriage. Many people believe that common law marriages automatically occur once a couple cohabits. As discussed previously in this article, this is not true under the laws of Kansas. Although the general public believes this to be the case, the requirements for entering into a common law marriage are actually quite specific.
A common misconception that often leads to a lot of confusion is the belief that common law marriages are only recognized in a minority of states. The truth is, that while states like Massachusetts are known for their "grandfathering" of common law marriages, Kansas is one of the few states that do not recognize common law marriages at all.
Consulting a Lawyer for Legal Guidance
The laws surrounding common law marriage in Kansas can be complex and may vary based on individual circumstances. Therefore, it’s important for those who might be in or who are considering a common law marriage to seek legal counsel to understand their rights and responsibilities under the law. Having the perspectives of both spouses and their agreement on future action with these issues can save many difficulties in the future.
In particular, an attorney can help spouses navigate the various financial obligations of a common law marriage, from tax implications to liabilities. This way , clients are provided a legal plan to structure their financial futures as the family grows and changes over time.
Particularly in common law marriages, attorneys are also essential in helping to sort out the often complicated questions of custody and guardianship. In these areas of law, a knowledgeable Kansas divorce lawyer can help parents ensure that their legal paperwork is in order – whether through pre-nuptial agreements, wills or other legal documents – so they can care for their child no matter what the family situation may be in the future.