Establishing Common Law Marriage in Pennsylvania: A Detailed Guide

Common Law Marriage in Pennsylvania Explained

In the simplest sense the term "common law marriage" refers to a legal union between two individuals who have not participated in a formal ceremony or received a marriage license. In other words, this type of matrimonial commitment stands apart from the traditional customs of marriage where a couple receives a wedding license and goes through a formal ceremony. This is not to be confused with an informal relationship of cohabitation or other forms of informal domestic partnerships as these all exist within their own legal purview and do not, under Pennsylvania law, amount to a common law marriage by themselves.
Contrary to some popular perception, however, common-law marriage is not a legal option that is open to just any couple in Pennsylvania who desire to save some time and formality in obtaining a marriage certificate. Instead, there are certain prerequisites that must be satisfied before the judiciary will recognize a valid common law marriage in Pennsylvania.
To begin with, a couple must satisfy the following five requirements:

• Both partners in the relationship must be at least 18 years of age or older;
• Both partners must be competent to consent to marriage in a formal sense (that is, capable of understanding the meaning and import of the decision to marry);
• The two must be physically present in Pennsylvania from the time their agreement to marry is made until the point where it comes under scrutiny to determine if the factual elements are fulfilled;
• There can be no evidence of representation or concealment of the relationship, which would suggest that one of the parties is not being truthful about his or her intention to marry; and
• The parties must exchange promises to be married as husband and wife.

Once these three primary requirements are fulfilled, as long as each party intends to enter into a life-long martial commitment and the mutual promises are exchanged , this satisfies a "common law marriage" in Pennsylvania.
It is important to note that the requirement of cohabitation for all intents and purposes ends in 2005, when the Pennsylvania Superior Court explicitly abrogated its prior decisions requiring cohabitation prior to the exchange of mutual promises by the parties to be wed. At this time, a mere agreement to marry in itself fulfills this requirement. Furthermore, those wishing to fulfill the elements necessary to invoke common law marriage need not possess the same dominant motivation for entering into this relationship to be wed; instead, having a mutual understanding and agreeing to marry is sufficient.
Although common law marriage has legally existed in Pennsylvania for years, it is worth noting that the law has experienced substantial changes since the 1980s. Prior to the 1980s there were essentially no requirements for a common law marriage to exist. All that had to be satisfied was the execution of mutual promises to marry. The 1980s ushered in a progressive conception of a common law marriage, requiring some minimal fact finding to determine whether or not the parties actually possessed the requisite intention to be married. Only after the 1980s did the courts create a rigid five prong test for determining whether or not a common law marriage existed. While somewhat softened by the Supreme Court’s decision in In re Estate of Gulnac, the five prong test still remains as the law of the Pennsylvania courts presently.
Moreover, as of January 1, 2005, Pennsylvania does not allow new common law marriages to be entered into. Parties who want to enter into a union must now obtain a marriage license through the traditional courts and marry in a ceremonial marriage. On the other hand, a common law marriage entered into prior to January 1, 2005 can still be recognized, but that the parties must now meet the current five prong test to have it validated in order to protect their interests.

Requirements for Common Law Marriage

Despite possible misunderstandings, there are legal requirements that must be met to establish a common law marriage in PA. At least one member of a couple claiming a common law union must be marriageable age in order for the common law marriage to be valid; this means that the at least one party must be at least 18 years old, or 16, provided the proper consent has been documented. Parties aged 16-17 can only enter into marriage with a license issued by a Pennsylvania judge of the Orphan’s court. There is no residency requirement to establish a common law marriage in Pennsylvania; however, once a couple moves into a county, they must comply with Pennsylvania laws regarding the dissolution of a common law marriage and the distribution of marital assets and debts in the event of death or divorce. Establishing a common law marriage in PA requires that the parties hold themselves out publicly as having the legal status of husband and wife. There is no specific time requirement for which the couple must hold themselves out in this manner, but the passage of time is often a factor looked at by the court where the couple wishes to terminate their marriage. To prove the existence of a common law marriage and the period of time from which the marriage is valid, the courts will consider circumstantial evidence such as the length of time the couple rented property together, the length of time the couple has been employed at their jobs, the existence of a joint phone number, or the existence of a joint insurance plan or bank account. Common law marriages are no longer entered into by PA residents or in PA on or after January 1, 2005. Any couple wishing to establish a common law relationship after that date must do so in another state that recognizes common law marriage, or enter into a traditional ceremonial marriage.

Evidence Needed to Establish Common Law Marriage

Once a claim of common law marriage is made, the Pennsylvania Courts will examine any number of pieces of evidence to support a judgment that such relationship does, in fact, exist. The law currently considers the following pieces of evidence as supportive in nature: Copies of checks written by one spouse and endorsed by the other; Health Insurance policies that list the other spouse as the spouse or beneficiary; Tax documents that list the other person as a dependent or significant other; Joint bank accounts in both spouse’s names; Copies of deeds to marital property that lists both spouses as owners and perhaps even signatories; And more. It is important to remember that the law currently does not require that proof of marital intent be expressed in writing. It is assumed that any such intent that exists between the parties will likely be expressed in their physical lives and their shared assets and debts. Questions of credibility may arise, however, and in that case the Court will evaluate people that know the parties (preferably both together – unless a lie is being told) and what they have to say about the relationship, its duration and the intent to remain together as a married couple.

Witness Statements and Affidavits

Although circumstantial evidence plays an important role in a determination of common law marriage, First Judicial District Family Court Rule 1920.16 and Orphans Court Rule 1.12 make clear that affidavits and witness testimony are not only admissible but presumed to be required in such actions. This makes them a critical step in proving the existence of a common law marriage in Pennsylvania.
The property division and alimony proceedings that arise following the dissolution of a marriage are governed by the Pennsylvania Divorce Code at 23 Pa.C.S.A. § 3101 et seq. Section 3102(a) of the Divorce Code defines a "Marriage" as, in part, the "legal union of husband and wife." Section 3101(e) defines "Husband" and "Wife" as follows: The terms "husband" and "wife" include every married person, unless such interpretation would result in distinguishing between the husband of a woman who is legally separated from her and the wife of a man who is legally separated from him, or would produce any other absurd consequences. Taken together, these provisions invite the implication that issues related to "marriage" must be determined pursuant to the same standards that apply to the existence of a husband-wife relationship.
Section 3101(b) of the Divorce Code grants the Orphans’ Court jurisdiction of matters related to the division of property between married persons. Under Orphans’ Court Rule 1.12, it is the practice of the Orphans’ Court division of the Court of Common Pleas of Philadelphia County to require "affidavits, depositions, or testimony of interested persons" in marriage matters. The circumstances of a particular action will dictate which of these are appropriate, but if the issue is a common law marriage, an affidavit by a party to the alleged marriage may be sufficient .
Orphans’ Court Rule 1.12 clarifies that Rule 1.5 et seq., which governs proceedings regarding divorce and annulment, are to be followed to the extent that they are not inconsistent with Rule 1.12. For this reason, the procedure that a party must follow to have his/her affidavit admitted in evidence in a common law marriage presentation is largely dictated by the divorce rules.
Orphans’ Court Rule 1.5(d)(1), which deals with divorce, states the following: An affidavit shall be deemed admitted into evidence subject to cross-examination and the opportunity of any opposing party to present counter-affidavit or testimony, unless a written objection to the affidavit is filed with the petition, rule to show cause, answer or counter-affidavit to which it relates, within twenty (20) days after service of notice of the hearing thereon upon the objector. Thus, assuming that no objection is made, the parties may proceed to a hearing upon which the court will consider the affidavits into evidence.
Parties may also submit depositions into the record. These may be helpful, for example, where one party saw the other as a spouse and called him/her as such and he/she used the spouse’s last name. If his/her friends and family do so, the weight of the Parties’ evidence increases. The best way to obtain the desired deposition testimony is to have a civilized conversation with the opposing party’s designee and obtain agreement to the facts. If he/she refuses or is not cooperative, you will most likely need to go to court and obtain a court order pursuant to Philadelphia County Civil Rule *207.1(b)(1) to take the deposition and a request that the court enter a Rule 1.5(d)(1) order.

Disputes and Challenges to Common Law Marriage

Proving the existence of a common law marriage can be fraught with legal challenges and disputes. Even if two members of the public are convinced that they have a common law marriage, unless they can produce convincing evidence, they will not be recognized as married under Pennsylvania law. Proving the existence of a common law marriage when it is disputed by one of the parties is particularly difficult. The Superior Court has held that "a trial judge, sitting without a jury, should not find a common law marriage to exist unless there is clear and convincing evidence." Smith v. Smith, 493 A.2d 139 (Pa.Super.1985). In Smith the Superior Court upheld the trial court’s conclusion that the parties were not married even though they lived together for several years and filed joint income tax returns. 493 A.2d at 140. The court reasoned that "when both the objective acts and the subjective intent do not support the conclusion of a common law marriage, the objective acts must prevail." Id. Where, as here, the parties do not agree that they are married, "the court is vested with the responsibility of making the legal conclusion. . .that they have not contracted a common law marriage." Id. In a common law divorce matter, the court must adhere to the law in determining whether a common law marriage exists, notwithstanding the fact that the parties may have resided together for many years, sharing and intermingling their property. For that reason, it is critically important to understand the possible consequences of a finding that a common law marriage exists.

Consultation with a Family Law Attorney

When seeking to prove a common law marriage in Pennsylvania, it is always advisable to speak to a family law attorney. An attorney who has experience handling common law marriage issues in Pennsylvania will be able to assist the person in gathering the type of evidence necessary to prove the existence of the common law marriage. Evidence related to a common law marriage is often difficult to obtain, so the guidance of an attorney can be invaluable. Also, if legal proceedings become necessary , an attorney will know how to properly fill out the necessary legal paperwork and present evidence to the court.
An attorney should also be consulted if there is a dispute regarding the validity of the common law marriage. In this case, the attorney will know which court has jurisdiction to hear the matter. For example, in Pennsylvania, if the matter was originated in Montgomery County, the case should actually be handled at the Montgomery County Court of Common Pleas, as opposed to the Montgomery County Register of Wills office.