Traditional Versus Common Law Marriage
In Oklahoma, traditional marriages are established by following statutory (legal) procedures. Couples must get a marriage license and hold a formal ceremony performed by a judge, preacher, minister, priest, rabbi or other authorized dignitary. The ceremony serves to solemnize the marriage and marks the couples’ mutual intent to be married. These are commonly called ceremonial marriages, and couples that use these procedures are considered legally married.
Oklahoma is among a handful of states that still recognize non-ceremonial marriages, also referred to as “common-law marriages.” These are formed by the consent of the parties who enter into the marriage, but without meeting all of the state requirements, such as a license or ceremony.
Establishing a Common Law Marriage
The fact is it’s hard to prove the existence of a common-law marriage in Oklahoma. Cohabitation, using the same last name, combining finances, jumping over broomsticks at a party, and other actions you might assume help to verify a common-law marriage are just pieces of a much larger puzzle. By themselves, they mean nothing.
The question of whether a common-law marriage was established typically comes up when a couple decides to divorce. Common-law spouses who want to end their relationship must use the courts to get divorced just like people who meet the requirements of a traditional or ceremonial marriage. So, if divorcing common-law spouses can’t agree on alimony or the division of property, they’ll likely end up in court asking a Judge to decide. One spouse may deny the common-law marriage in order to avoid the division of assets or alimony.
This issue also comes up when a common-law spouse passes away, and the surviving common-law spouse stands to inherit property. If there are children from a previous marriage or relationship, they may go to court and argue that the common-law marriage never existed.
So how will a court decide? Oklahoma courts rely on a well-established test which includes the following elements:
- both parties to the alleged common-law marriage must have the legal capacity to enter into the marriage (they must be of sufficient age and not married to anyone else)
- there must be an actual and mutual agreement between the parties to enter into a permanent and exclusive marriage (this must be a current agreement; being engaged or agreeing to get married at some point in the future doesn’t count.)
- there must be cohabitation as man and wife or consummation of the marriage, and
- the parties must hold themselves out to the community as husband and wife.
The person seeking to show a common-law marriage must prove all of these elements by clear and convincing evidence. If clear and convincing evidence is missing as to any part of the above-referenced test, the claim of a common-law marriage will fail.
What Constitutes Clear and Convincing Evidence of a Common Law Marriage?
The general conduct of both parties during their relationship will provide most of the evidence necessary to establish a common-law marriage. Relevant evidence may include:
- the fact that the couple has lived together for a period of time (cohabitation)
- joint income tax returns
- joint financial accounts or credit cards
- jointly-held assets or debts (a home, car, mortgage, or other loans)
- life insurance policies and retirement or pension plans that list the common-law spouse as a beneficiary
- using the other common-law spouse’s last name
- medical records which list the common-law spouse as next of kin
- testimony from third parties regarding how the couple introduced each other in the community and at social gatherings
- cards, presents or other evidence of celebrations marking the anniversary of the common-law marriage
- notes or other writings that include language such as “husband” or “wife,” and
- family photos showing the couple wearing wedding banks.