70 J. Kan. Bar Assn. 4, 20-27 (2001). Common Law Marriage: Civil Contract or Carnal Commerce.

• Author: By Mary D. Feighny

Kansas Bar Journals

Volume 70.

70 J. Kan. Bar Assn. 4, 20-27 (2001).

Common Law Marriage: Civil Contract or Carnal Commerce

Kansas Bar Journal70 J. Kan. Bar Ass'n, April 2001, 20-27 (2001)Common Law Marriage: Civil Contract or "Carnal Commerce"[1]Mary D. Feighny, Common Law Marriage: Civil Contract or "Carnal Commerce," J. Kan. Bar Ass'n, April 2001, 20-27By Mary D. Feighny"We don't need no piece of paper from the city hall keeping us tied and true ... My old man keeping away my blues."[2]

I. Introduction

In 1877, the U.S. Supreme Court had occasion to address the legal nature of the relationship between William Mowry and Mary, the daughter of an Indian named Pero.[3] William and Mary had lived together for seven years in Michigan "as husband and wife"[4] when Mowry died intestate, leaving Mary and their daughter, Elizabeth. Real estate owned by Mowry became the subject of dispute between the plaintiff, who had purchased the property from Elizabeth, and the defendant, who had purchased the same property from Mowry's mother.

Michigan law at the time provided that marriages be performed in the presence of a magistrate or minister. The trial court instructed the jury that the verdict should be for the purchaser from Mowry's mother if they found that William and Mary had not solemnized their marriage before a magistrate or a minister. The United States Supreme Court found this instruction to be in error because the jury was not allowed to consider whether the Mowry's relationship was an "informal marriage by contract per verba de praesenti."[5]

That such a contract constitutes a marriage at common law there can be no doubt, in view of the adjudications made in this country, from its earliest settlement to the present day. Marriage is everywhere regarded as a civil contract. Statutes in many of the states regulate the mode of entering into the contract, but they do not confer the right. [No] doubt, a statute may take away a common law right; but there is always a presumption that the legislature has no such intention, unless it be plainly expressed. [In] the absence of any provision declaring marriages not celebrated in a prescribed manner . . . absolutely void, it is held that all marriages regularly made according to the common law are valid and binding, though had in violation of the specific regulations imposed by statute.[6]

The Court remanded the case to determine whether the Mowrys' relationship was a marriage at common law:

Whatever the form of ceremony, or even if all ceremony was dispensed with, if the parties agreed presently to take each other for husband and wife, and from that time lived together professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding upon the parties, and which would subject them and others to legal penalties for a disregard of its obligations. This has become the settled doctrine of the American courts.[7]

Kansas is one of eight states that continue to recognize common law marriage.[8] While the doctrine has lost favor throughout the United States, it thrives in Kansas despite legislative scrutiny over the years.[9] Therefore, practitioners should be knowledgeable about the doctrine's parameters and the consequences for clients who may be operating under the old canard that a man and woman who cohabitate for seven years are married persons under Kansas law.

2. Elements of Common Law Marriage

   While some believe that cohabitation without the benefit of clergy was forged in the revolutionary crucible of the 1960s and 1970s, such associations have enjoyed a robust history dating back to the time of this nation's founding. As a result, relationships that resemble marriage have secured a place in the annals of American jurisprudence.

   Common law marriage has been described as a "marriage, which does not depend for its validity upon any religious or civil ceremony but is created by the consent of the parties as any other contract."[10] In Fenton v. Reed,[11] Mrs. William Reed applied, after her husband's death, for an annual benefit of $25 from the Provident Society of which her husband had been a member. The Society refused the application on the grounds that the Reeds had never been lawfully married. The New York Supreme Court concluded that Mrs. Reed was the wife of Mr. Reed despite the fact that there was no proof that their marriage had been solemnized:

   A marriage may be proved . . . from cohabitation, reputation, acknowledgment of the parties, reception in the family, and other circumstances from which a marriage may be inferred . . . No formal solemnization of marriage was requisite. A contract of marriage made per verba de presenti amounts to an actual marriage, and is valid as if made in facie ecclesiae.[12]

   The Fenton decision, attributed to Chancellor Kent,[13] established the attributes of common law marriage for the majority of jurisdictions in the United States, including Kansas.[14] Those elements are: "(1) capacity to marry; (2) a present marriage agreement; and (3) a holding out of each other as husband and wife to the public."[15]

   1. Capacity to Marry

      Capacity to marry relates to whether or not a legal impediment exists, thereby precluding two parties from entering into a marriage contract.[16] Legal impediments may include mental or physical incapacity, the existence of another spouse,[17] certain familial relationships that may render a marriage incestuous,[18] parties of the same gender[19] and being underage.[20]

      1. Mental capacity

         A person must be capable of understanding the nature of the marriage contract.[21] "Mere imbecility or weakness of mind . . . will not be, when unaccompanied by circumstances showing it has been taken advantage of, a sufficient ground for avoiding such a contract."[22] In the case of In the Matter of the Estate of Hendrickson,[23] the children of Delbert Hendrickson challenged the right of their father's alleged common law wife, Ruby, to inherit Delbert's estate. Delbert had received a disability pension from the military as a consequence of either a "nervous breakdown" or a "back problem" suffered during World War II, depending upon which witness was believed. Delbert was a widow when he met 55-year-old Ruby in March 1988. He had planned to marry Ruby, but did not decide to do so until he was admitted that November to a hospital in Oklahoma for what he believed would be his final illness. The hospital summoned Ruby from Kansas and the two were married in the hospital in the presence of a chaplain and witnesses. Because there was not sufficient time to obtain a marriage license, the marriage was considered one by common law under Oklahoma jurisprudence. Delbert died the following month.

         Delbert's children argued that he lacked the mental capacity to marry. The district court and the Kansas Court of Appeals concluded that Ruby had the burden of proving that Delbert had the requisite capacity. However, the Kansas Supreme Court reversed this holding and placed the burden of proof on the party alleging mental incapacity because of the presumption of mental competence, "which cuts a path through many areas of the law."[24] The test used by the Court to determine whether mental capacity is sufficient to contract for marriage is "whether there is a capacity to understand the nature of the contract and the duties and responsibilities it creates."[25] The Court held that Delbert's and Ruby's marriage was valid under common law principles. Given the Court's holding, successfully challenging a common law marriage on the basis of a party's mental incapacity will be difficult, absent egregious facts.

      2. Statutory Impediments to Marriage and the Presumption of the Validity of the Second or Subsequent Marriage

         Until the repeal of K.S.A. 23-103 in 1993,[26] any person who married in Kansas in noncompliance with the marriage statutes[27] by failing to obtain a license could be prosecuted and fined or incarcerated for a minimum of three months. Until 1979, persons who lived together as husband and wife without being married were also subject to prosecution and incarceration, upon conviction.[28]

         Both statutes were upheld in the 1887 case of State v. Walker,[29] when Edwin Walker and Lillian Harmon entered into an "autonomistic marriage" and were prosecuted for failing to comply with the marriage statutes. Walker defended on the basis that marriage is a "strictly private affair" and, therefore, not subject to regulation by either church or state. The Court upheld the statutes at issue after determining that the legislative purpose in requiring individuals to obtain a license is to keep a record of a relationship fraught with civil and legal significance:

         It cannot be doubted that the purpose of the statutory regulations is wise and salutary. They give publicity to a contract which is of deep concern to the public, discourages deception and seduction, prevents illicit intercourse under the guise of matrimony, relieves from doubt the status of parties who live together as man and wife, and the record required to be made furnishes evidence of the status and legitimacy of their offspring.[30]

         However, the Court noted that failure to comply with the procedural marriage statutes would not invalidate a marriage that met the requisites of the common law.[31] This same rationale applies when there is any statutory impediment to parties entering into a common law marriage. In Burnett v. Burnett,[32] a husband argued that...