COMMON LAW MARRIAGE IN PENNSYLVANIA

NOTE THAT THIS PAGE IS IN THE PAST TENSE. IT EXPLAINS WHAT THE LAW WAS, AND THIS STANDARD WILL GOVERN COMMON LAW MARRIAGES ENTERED INTO BEFORE JANUARY 2, 2005. SEE MY MAIN PAGE FOR MORE INFORMATION ABOUT THE LAW ABOLISHING COMMON LAW MARRIAGE IN PENNSYLVANIA.

There are few legal subjects on which the general public is more misinformed than this one. The most popular myth is that seven years of living together makes two people married. This is complete and absolute nonsense.

Other people think they will have a common law marriage if they live together, hold themselves out to the community as a married couple, and handle their legal affairs (property, taxes) as a married couple. This is also a myth.

Common law was just a different way of getting married in Pennsylvania.

In Pennsylvania, two unmarried adults could create a common law marriage by exchanging words of present intent -- in essence, marriage vows. "I take you for my husband." "I take you for my wife." (These did not have to be the exact words, but they had to be expressing present intent rather than an intent to marry in the future.) If they did this with the intent of forming a marriage, they had a marriage the minute they spoke the words. If they became unhappy with the marriage, they needed a divorce. They were in the same position as a couple that just had a marriage ceremony.

Neither consummation of the marriage nor cohabitation was required. However, in a case where one party claims the vows were made and the other party denies this, the court will look at how the parties conducted their lives. Did they live together? Did they introduce themselves to others as husband and wife? How did they file their taxes? The purpose of this inquiry is to help determine which party is telling the truth about the vows. If there is no claim that words of present intent were exchanged, there is no marriage no matter how long and how consistently the parties acted as if they were husband and wife.

When one party is deceased, and the other party seeks a share of the estate, special rules apply. Statutory law prohibits a person claiming to be the surviving spouse from testifying about the creation of the marriage. The purpose of the law is to prevent fraud against estates.

In cases where the claimant is barred from testifying about the creation of the marriage by this law, but can produce testimony and documents to show that the parties consistently conducted themselves as husband and wife, the court may consider this as circumstantial evidence that vows were exchanged and may conclude that there was a common law marriage.

Unfortunately, there have been a number of court decisions involving estates in which a court took the circumstantial evidence approach without explaining that it would expect direct evidence of the vows if both parties were alive. This is part of the reason many people believe that acting as if you were married makes you married. There is a 1998 Pennsylvania Supreme Court decision that attempts to end the confusion. Staudenmayer v. Staudenmayer, 552 Pa. 253, 714 A. 2d 1016 (1998).

Another twist: the statutes that exclude the survivor's testimony about the vows do not apply to claims after someone's death that do not involve the deceased person's money or property. For example, a pension fund may say to a claimant, "We will pay you a surviving spouse benefit if you get a court ruling saying there was a common law marriage." In that situation, the court will expect direct evidence of the words of present intent.

LETTER TO PENNSYLVANIA SENATE JUDICIARY COMMITTEE

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