McKIMMEY LAW OFFICE, P.C.
Twenty Four E. Highland, Shawnee, Oklahoma 74801 - 405-275-3564
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McKIMMEY LAW OFFICE is one of the leading small law firms in the Shawnee, Oklahoma area, with a Statewide practice in all State and Federal Courts.
McKIMMEY LAW OFFICE is a general practice law firm. Our expertise includes Probate, Wills, Trusts, Real Estate, and Governmental Tort Claims, including Civil Rights litigation involving the Fourth and Fourteenth Amendments.
"An Affordable Attorney at Law"
Admitted to Practice - Oklahoma - 1974
United States Supreme Court - Tenth Circuit Court of Appeals
All United States District Courts of Oklahoma
- CAVEAT - The Answers and Opinions expressed on this page are general in nature, and the Answers and Opinions that our office would most likely give you.
You should also be aware that many of the Answers and Opinions expressed on this page represent our opinion and do not necessarily reflect the views of the entire legal community!
Laws in different states may vary. Since we practice in Oklahoma the views in this segment reflect Oklahoma Law, and the law applicable in your state may be different.
You should not consider these Answers and Opinions as legal advice applicable to your particular case and circumstances.
In planning your affairs you should consult directly with an attorney of your choosing, acquainting him / her with all of the facts and circumstances which apply to you.
In planning your affairs you should always get a second opinion.
What is a Marriage?
First - It is necessary to understand exactly what any marriage is!
Basically any marriage is a contract or Agreement between two legally competent persons to be husband and wife.
In Oklahoma 43 O.S., 1 defines marriage as:
“Marriage is a personal relation arising out of a civil contract to which the consent of parties legally competent of contracting and of entering into it is necessary, and the marriage relation shall only be entered into, maintained or abrogated as provided by law”.
By definition this contract anticipates that marriage relationship involve one male and one female. In Oklahoma 43 O.S., 3.1 - provides that Same Sex marriages shall not be recognized in Oklahoma.
This Marriage Contract is unique in that in getting married the parties agree to the terms of the contract as established in the State where the marriage occurs, but if the parties move to another State, the terms of the contract change to comply with the laws of the new state of residence.
The most notable example would be when the parties marry in California, Texas or another Community Property State, then move to Oklahoma or another non-community property State. - Their respective rights in property automatically change as the parties change States of residence.
Another example is when death occurs.
Rights to inheritance in the State where the marriage occurs may be much different that in the State where the parties reside at the time of death.
In most cases the Contract is not written, but the terms of the contract - the duties and the obligations of the parties to each other are provided by Statutes. By merely getting married the parties agree to be bound by the terms of their agreement which are incorporated in State Statutes.
Each State, by Statute, determines the procedure which must be followed to enter into such a marriage contract within it's borders.
Most States require a license, a ceremony presided over by a person licensed to conduct a marriage, and witnesses to the event.
Currently, the following jurisdictions recognize common law marriage:
- District of Columbia
- Rhode Island
- South Carolina
Some states recognize a common law marriage originated and approved in another state,but will not recognize common law marriage originating in their state.
Check the law for each state for specific rules regarding common law marriage or consult with an attorney.
Statutes in Oklahoma found in Title 43, O.S., Sec. 4, et seq seem to indicate that the only way to be married in Oklahoma is by the issuance of a license - the marriage must be performed by a ceremony, and must be solemnized in presence of witnesses by a person authorized by the Statute. 43 O.S., Sec. 7.
Nonetheless, case law in Oklahoma has upheld Common Law Marriage.
See: Oklahoma Supreme Court Case Standefer v. Standefer
Bills have been introduced in the legislature, most recently in the last session, to do away with the Common Law Marriage, but the Bills have failed.
It is therefore our opinion that Common Law Marriages, are still valid in Oklahoma.
We do not, however, recommend that if marriage is actually intended that persons rely upon the Common Law Relationship.
We recommend the ceremonial marriage. Any doubts as to the existence of the marital relationship will therefore be alleviated.
Some States, including Oklahoma, recognize a non-licensed, non-ceremonial marriage, which has been variously called Marriage by Contract or a Common Law Marriage.
Although most states do not recognize the establishement of a marriage by Common Law , each State recognizes a Marriage which was valid in the State where such marriage occurred.
This comity between the States of recognizing of any marriage validly entered into in another State has caused great concern when any one State changes the definition of Marriage. i.e., Same Sex Marriages. If any one State accepts such a marriage within its borders, then the other States would have to accept the validity of the marriage if the parties moved into the State.
What is a Common Law Marriage?
A Common Law Marriage is a marriage that has been entered into by a Contract or Agreement between the parties, but has not been memorialized by ceremony.
Common law marriage -- One not solemnized in the ordinary way (i.e. non-ceremonial) but created by an agreement to marry, followed by cohabitation. A consummated agreement to marry, between persons legally capable of making marriage contract, per verba de praesenti, followed by cohabitation. Such marriage requires a positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, cohabitation sufficient to warrant a fulfillment of necessary relationship of man and wife, and an assumption of marital duties and obligations. Marshall v. State, Okl.Cr., 537 P.2d 423, 429.
Black's Law Dictionary 6th Edition
Is a Common Law Marriage as Good as a regular or ceremonial Marriage?
Yes - A Common Law Marriage is a valid as any other marriage, and is subject to the same duties, obligations and benefits as a ceremonial marriage, if the marriage occurs in a State where allowed by law!
If the parties enter into a valid Common Law Marriage in a State where allowed, then the marriage is valid in any State where the parties subsequently reside. Such a marriage is then subject to the terms and provisions of the Statutes of the new State.
The Social Security Administration recognizes a common law spouse, so long as the status was fully acquired in a state that accepts it. The status is proven by a joint affidavit, if both spouses are alive, or by affidavit of the surviving spouse and two relatives otherwise, that there was a marriage as evidenced by their conduct.
What does it take to have a Common Law marriage?
An Agreement between the parties to be presently married!
This means an agreement to be married NOW ! - Not an agreement to get married at some future time - not even if the parties are on the way to the church to get married!
The parties must be Legally Compentent to enter into the marriage contract!
- They must be of legal age to enter into a contract, and of legal age to get married in the State!
- They must be mentally capable of entering into a contract
- They must not be under any legal impediment that prevents them from getting married. i.e., already married to someone else, or under some Court Ordered prohibition against getting married.
Does the Agreement to Be Married Need to be in Writing?
In my 28 plus years of practice I have only seen one actual written marriage contract which established the Common Law Marriage.
It said simply:
"We hereby declare that we are presently married to each other."
It was signed by both of the parties and not even notarized.
I have seen one other that stated simply that the parties " . . were married by common-law on a certain date and place".
This one simply acknowledged that the parties had done it!
However - in each case the validity of the establishment of the marriage depended upon the law of the State where the alleged Marriage occurred in allowing a Common Law Marriage!
NOTE: - Neither have we seen more than half a dozen marriage contracts in writing where the parties had a ceremonial marriage performed!
In former times, Written Marriage Contracts were quite common, but very few are now in writing. Generally a simple I do! in front of a preacher or Justice of the Peace constitutes the Agreement of the Parties.
By saying I do! the parties incorporate into their agreement all of the terms and provisions of the Statutes of the State where the marriage is performed - and the terms and provisions of the Statutes of the State where the parties reside at the time of divorce or death!.
In modern times the most common written agreement concerning the marriage might be a Pre-Nuptial Agreement!
See - Pre-Nuptial Agreements - Ante Nuptial.
See - FAQ - Wills & Trusts
See - FAQ - Probate
What is NOT a Common Law Marriage!
Neither Shacking up or merely living together makes a Common Law Marriage! - Not even if children are born to the parties.
Nor does merely checking into a Motel under the name Mr. & Mrs. John Smith create a Common Law Marriage.
There cannot be a "Common Law Marriage" between persons of the same sex. This because the "Common Law" is the unwritten law brought by the colonists to the colonies from England. There was no English law that allowed for same sex marriage, therefore it never was allowed by "Common Law"
How Long must we Live together to make our relationship a Common Law Marriage?
The Length of Time the parties live together does not have anything to do with making a Common Law Marriage!
There must be an Agreement by the parties to be married.
When is the Existence of a Common Law Marriage an Issue?
- However, the length of time the parties live together may be a factor when the existence of a Common Law Marriage is made an issue.
When Someone determines that it is to his or her advantage to claim that such a marriage either existed or did not exist!
This could be one of the parties who might benefit more by proving the marriage in the event of a split - or in case of the death of one of the parties, it could that the surviving party might benefit as the surviving spouse.
An heir of the deceased party might benefit if no there was no such marriage.
How Do you Prove the Existence of a Common Law Marriage?
In Most cases the existence of a Common Law Marriage never has to be proved!
When was the last time anyone asked to see your marriage license, or proof that you are married?
Have you ever called into question whether or not your parents or grandparents, or your closest friends were actually married?
In life and in law there are certain assumptions, among which is that if people hold themselves out to the community and others that they are married, then they probably are!
However, when the validity of a marriage is called into question, the burden of proof is on the person seeking to establish the fact that a marriage in fact exists.
A ceremonial marriage can be proven by producing the marriage license or certificate that shows that the ceremony occurred and was properly witnessed.
With a Common Law Marriage it is the Agreement of the parties to be married that must be proved!
Since the Agreement is seldom in writing and if one of the parties or the heirs claim there was no such agreement, then how can you prove that there was one?
In most cases the parties to a Common Law Marriage cannot actually point to a time and place where they shook hands and agreed that they were married.
Nevertheless the law may imply that there was such an agreement on the grounds of public policy considerations in favor of marriage.
As in other areas of the law, the Agreement of the parties to be married may be Implied from their actions toward each other and their general behavior.
Do they hold themselves out to the community as husband and wife?
- Do they generally live as married people.
- Do they attend family functions as husband and wife?
- Do they have a joint bank account as John and Jane Smith - or John Smith and Jane Doe?
- Do they send Christmas Cards from John and Jane Smith - or John Smith and Jane Doe?
- Do they file joint Tax Returns, or file as single persons?
- Do they file Applications for Credit Cards as John and Jane Smith - or John Smith and Jane Doe?
- Do they own real or personal property jointly as John and Jane Smith - or John Smith and Jane Doe?
- Have they applied for insurance policies and checked the box married?
- How do they receive mail - and is the mailbox in the name of John and Jane Smith - or John Smith and Jane Doe?
These, and other factors, along with how long the parties have lived together as husband and wife, are all considered in determining whether the parties had an agreement to be married.
We are aware of one early case where the parties had lived together for over forty years and had grown children,- but the only proof of the existence of the marriage consisted of the testimony of a milk truck delivery man who cited one instance where the deceased told him to collect the milk bill from his wife!
In that case it was the son of both parties who challenged his own mother's right to inherit as the surviving spouse from his father!
On the basis of the milkman's testimony the Court determined that there had been an agreement of the parties to be married, and that they were husband and wife!
- The existence of these factors does not create any implication of an Agreement to be married in a State where Marriage by Common Law is not allowed!
If the parties have never resided in a State where persons may enter into a Common Law Marriage, then the behavior of the parties does not create a marriage.
However, if the parties have resided in a state where a marriage may be entered into by Agreement, and the marriage valid in that state, those factors may be considered in the new state in determining whether a marriage existed.
Where the relationship is long term and where children have been born the more there is a presumption that there was a marriage.
- As with most Contracts it is the intent of the parties that is controlling in a Common Law Marriage Contract
However - it is possible that one or more of the parties to a relationship may not intend to be married, but who cohabit and behave in such a way that the Court's could interpret that a Common Law Marriage existed.
Our office recommends that if any Evidence of the existence of a Common Law Marriage Agreement exists, then the relationship should be terminated by a Divorce Proceeding, or other Judicial Determination that no Common Law Marriage exists!
If I have a Common Law Marriage, and we decide to split up, do we need a Divorce?
Yes! - There is no such thing as a Common Law Divorce
Once the marriage takes place, it is as valid as a ceremonial marriage, and the Statutes of the State where the parties reside at the time of the split govern the respective rights, duties and obligations of the parties at that time.
See - FAQ - Divorce and Annulment
Tip of the Day
Any Divorce Decree is an important legal document which should not be discarded, but which should kept with your valuable papers!
A Divorce Decree is proof of the termination of a legal relationship!
As unlikely as it may seem such proof of the termination of the relationship may be needed 30 to 40 years after the Divorce is granted.
Recently a man came into the office with the problem of proving he was Divorced!
He was seeking VA benefits for himself and his wife of over 35 years. Government records from World War II showed he had another wife. The VA needed a copy of his Divorce Decree from his former spouse.
In 1948 he was served with Divorce petition, agreed to the Divorce, appeared in Court and he remembers that a Divorce was granted.
Assuming he was divorced he remarried, and lived as such since 1964.
However, Court files did not show that a Divorce Decree was ever entered.
According to Government Records he is still married to the wife he has not seen in over 50 years!
Many times there may be more evidence of the existence of a marriage than of the termination of the relationship!
More than once we've seen a grieving first wife show up at a funeral claiming a right of inheritance!
If you have a question of a general nature that you feel should be included in this segment, please let us know.
We also would like to receive comments and suggestions for better Answers.
Although we cannot give specific legal advice on the phone we are willing to answer questions of a general nature.
If your question is of general interest we may include your letter and our response as a part of our website.
- 2001 - 2011 - Joseph E. McKimmey