Section 2.16 Common-Law Marriages

• Library: Family Law Deskbook and 2014 Supp

6. (§2.16) Common-Law Marriages

The Court in State v. Eden, 169 S.W.2d 342 (Mo. 1943), emphasized that the parties must have attempted to contract a valid statutory ceremonial marriage that failed because of a procedural defect. It is not enough that the parties simply agreed to be husband and wife because the enactment of § 451.040, RSMo Supp. 2011, abolished all common-law marriages. See § 451.040.4. But common-law marriages are still relevant to Missouri attorneys because Missouri courts will recognize as valid a common-law marriage contracted in a state that still permits them. See Pittman v. Scullin Steel Co., 289 S.W.2d 57 (Mo. 1956); Preston v. Preston, 342 S.W.2d 956 (Mo. App. W.D. 1961). See also Chapter 3 of this deskbook.

The Missouri court determines the validity of the common-law marriage based on the law of the jurisdiction where the marriage was contracted. Doyle v. Doyle,
497 S.W.2d 846 (Mo. App. W.D. 1973). In Pope v. Pope, 520 S.W.2d 634 (Mo. App. W.D. 1975), the court set out the three essential elements of a common-law marriage in Kansas as being:

1. capacity of the parties to marry;

2. a present marriage agreement; and

3. the parties holding themselves out to the public as husband and wife.

A common-law marriage contracted in Texas...