By Dawn Padanyi, Esq.

Common Law Marriage in Pennsylvania

Does it Exist?

Yes, under very limited circumstances.

Since January 2, 2005, common law marriages were abolished.  That translates to Pennsylvania not recognizing common law marriages entered into after January 2, 2005.  With that being said, common law marriages entered into before January 2, 2005, are still recognized in Pennsylvania.

What does Common Law Married Really Mean?

First to be considered married in Pennsylvania, common law or otherwise, spouses must have the legal “capacity” to marry and second, have the “present intent to enter into a marriage.”

Capacity to marry means that one is legally able to be married.  This translates to one who is presently unmarried and at least 18 years old.

Under Pennsylvania Law, “present intent to enter into a marriage” demands that each spouse exchange a vow stating his/her intent to be immediately married.  This is not an expression of a desire to marry someone in the future, but a real time expression of intent to marry now.  An example would be: “I take you today as my husband” and “I take you today as my wife.”  Stating a desire to be married is not enough.

So how does common law marriage differ from a traditional marriage?

With a common law marriage, there does not need to be a marriage certificate or an officiant (person conducting the marriage ceremony).  Also, a common law marriage does not require witnesses.

Once a common law marriage occurred then the couple are married and a divorce is necessary to end the marriage, just as with a traditional marriage.  A couple that satisfied all the requirements for a common law marriage are entitled to the same rights that spouses of a traditional marriage are entitled, such as equitable distribution of the marital estate.

How does one prove that they have a common law marriage?

Not easily!

It is extremely difficult to prove that a common law marriage exists in Pennsylvania if either party is challenging the marriage.

The person wanting to prove that they have a common law marriage, must show “clear and convincing evidence” (evidence that would be highly probable to a Court) that there was legal capacity for the couple to marry and that there was a “present intent to enter into a marriage.”  The present intent to this equation is extremely difficult to prove because there generally are not witnesses to a common law marriage.

Typically, there is an argument over whether a common law marriage existed when the couple decide to end their relationship and are trying to file for divorce along with the equitable distribution of assets acquired during the relationship.  Also when one party dies, then sometimes other descendants will challenge that a common law marriage existed when the common law spouse tries to make a claim against the deceased’s estate.

It is only under circumstances when one party is unavailable to testify in the proceeding (many times due to death), that the Court will make the legal presumption that there was a common law marriage, if there is additional evidence to support that Husband and Wife lived together and held themselves out in the community as Husband and Wife.

The Court can consider other evidence to support the existence of a common law marriage, such as:

• Cohabitation
• Sharing expenses, bills, mortgages, leases, telephone, electric, water, etc.
• Vacationing together
• Participating in family events together as husband and wife
• Filing taxes together as husband and wife
• Applying for credit together as husband and wife
• Participating in marriage counseling
• Sharing bank accounts, insurance
• Designating each other as beneficiaries on life insurance
• Owning property together, real estate, cars, etc.
• Holding each other out to family and friends as husband and wife, referring to each other publicly as “my wife”, “my husband.”

Conclusion

If there is ever a situation in which an individual is alleging to be a common law spouse and it is disputed that a marriage ever existed, it is imperative to immediately contact an attorney to assist with this complicated area of the law.