Cases in Controversy
| Jurisdiction | Utah,United States |
| Citation | Vol. 3 No. 2 Pg. 31 |
| Pages | 31 |
| Publication year | 1996 |
The "Strange Case of Utah”[1]-Common Law Marriage
Cameron S. Denning, J.
Prior to 1987, "common law" marriage was not recognized in Utah. Furthermore, recognition of such relations was specifically prohibited: "Marriages not solemnized by an authorized person were prohibited and declared void."[2] But in 1987, the Utah State Legislature enacted Utah Code, section 30-1-4.5, which provides:
(1) A marriage which is not solemnized according to this chapter shall be legal and valid if a court or administrative order establishes that it arises out of a contract between two consenting parties who:
(a) are capable of giving consent;
(b) are legally capable of entering a solemnized marriage under the provisions of this chapter;
(c) have cohabited;
(d) mutually assume marital rights, duties, and obligations; and who hold themselves out as and have acquired a uniform and general reputation as husband and wife.
(2) The determination or establishment of a marriage under this section must occur during the relationship described in Subsection (1), or within one year following the termination of that relationship. Evidence of a marriage recognizable under this section may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases. In enacting a statute codifying "common law"[3] marriage, Utah departed from the national trend away from recognizing "informal" marriages. In the 1920s, a majority of the states recognized common law marriage.[4] In 1941, the number had dwindled to about eighteen.[5] And by 1996, just eleven states and the District of Columbia recognized common law marriage.[6]
The Legislature enacted the common law marriage statute in an attempt to prevent welfare fraud in situations in which two persons live together and one is employed, but the other receives public benefits.[7] The statute's effectiveness as a cost-saving measure is doubtful,[8] but it raises other questions of greater concern to practitioners.
For example, what is the standard by which a party must prove that a common law marriage exists? As of what time is the analysis to be made? And when must the "determination or establishment of a marriage" be completed?
Utah courts have not yet had the opportunity to develop answers to these questions, and as the Utah Supreme Court has noted, the analysis will "necessarily proceed on a case-by-case basis."[9] But there is already an apparent conflict between Utah's appellate courts regarding the statute's requirement of a judicial or administrative ruling prior to or within one year of the relationship's termination, and practitioners should be aware of the potential problems they may encounter in attempting to establish that such a marriage existed.
The Standard of Proof
Utah's statute is silent concerning the standard of proof required to show that a common law marriage existed.[10] The language of the statute, its legislative history, and the case law make it clear that each of the five elements enumerated in the statute, as well as consent to a marriage contract, must be proven.[11] But how much proof is required to ensure that the stamp of validity is given only to "deserving" relationships?[12] The Supreme Court has articulated the need for wariness:
Care must be given to guard against fraudulent marriage claims, especially where a declaration of marriage would reap financial rewards for an alleged spouse. When a reward is available, human nature may choose to strengthen and augment, in retrospect, the consent to marry that was only tentative before the reward became available.[13]
A few states apply a "clear and convincing evidence" standard for proving common law marriages,[14] but most states that recognize common law marriage impose only a "preponderance of the evidence" standard.[15] A review of Whyte v. Blair, 885 P.2d 791 (Utah 1994),. the Supreme Court's only decision on the issue, suggests that proving the existence of a common law marriage under the criteria set by the statute is more difficult than might be apparent, and thus, a "clear and convincing" standard may not be necessary to ensure that the goals of justice are met.
Whyte involved a claim by an injured motor vehicle passenger for benefits under his alleged common law wife's uninsured motorist coverage. When the trial court held (for reasons more thoroughly discussed below) that Whyte was not married to the insured, and thus the benefits were unavailable, Whyte appealed.
The Supreme Court remanded the case for determination of whether a valid marriage existed at the time of the accident. In doing so, the Court discussed the common law marriage statute's requirements, and noted that each of the statutory elements must be proved.[16] "No single factor is determinative. Evidence of each element is essential. Consenting[17] parties must show cohabitation, assumption of marital rights and duties, a general reputation as husband and wife...
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