Many people hold the common misconception that if a man and woman live together for a certain number of years they are in a common law marriage. This is not the case in Pennsylvania. In order to establish a common law marriage in Pennsylvania, both spouses must have “capacity” and the “present intent to enter into marriage.”
Capacity means that each spouse has the legal ability to be married. In Pennsylvania, this means that the parties:
In Pennsylvania, “present intent to enter into marriage” requires each spouse to exchange a vow stating their intent to be immediately married. This is different than, for example, a plan to marry sometime in the future. To illustrate, “I take you as my husband” expresses a present intent to marry. If combined with a similar statement by the husband, a common law marriage would be created. In contrast, “I would like you to be my wife” expresses a future intent to marry and does not create a common law marriage.
The biggest difference between common law marriage and a regular marriage is that there is no officiate (priest, justice of the peace, or other official authorized to marry couples) or marriage license for a common law marriage. And with a common law marriage, no witnesses are needed. Once a common law marriage has been established, the husband and wife have the same rights as any married couple for estate and property purposes and will need to file for divorce if they wish to end their marriage.
Yes and no. As of January 2, 2005, common law marriage has been abolished in Pennsylvania. That means that Pennsylvania does not recognize any common law marriage entered into after January 2, 2005. However, couples who entered into a common law marriage before January 2, 2005, are still recognized as married.
Proving a common law marriage is difficult in Pennsylvania. Someone trying to establish that a common law marriage existed, the “proponent,” must prove its existence by “clear and convincing evidence.” This means that the proponent has to provide enough evidence to convince the court that the common law marriage was highly probable. This is what’s called a “higher burden of proof” than the typical “preponderance of evidence” standard, which just means more likely not. The court will likely be even more suspicious when the proponent is trying to establish a common law marriage after the death of the other spouse, especially to support a claim against the estate.
In order to prove the existence of a common law marriage, the proponent has to prove that the husband and wife both had the capacity to enter into the marriage (they weren’t married to other people at the time and were old enough) and that they exchanged vows stating their present intent to be husband and wife. Only when one of the parties is unavailable to testify (due to death, for example), the court will presume that there was a common law marriage if there’s enough evidence that the husband and wife lived together and were believed to be married by the community.
Some types of evidence that might be useful in proving the existence of a common law marriage include:
Yes. If there is a valid common law marriage, the spouses have the same property rights as any married couple. This means that spouses are entitled to equitable distribution of property in a divorce and to a portion of the estate when the other spouse dies.
For the text of the statute abolishing common law marriage, see 23 Pa. Cons. Stat. Ann. § 1103.