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  • Writer's pictureKyle Persaud

Common Law Marriage – Oklahoma

Many people ask, “Does Oklahoma recognize common-law marriage?” The answer is YES.

Because this is a common question and there are many misconceptions about common-law marriage, I have decided to devote a post to this topic.

To form a common law marriage, the following is necessary:

1. The parties must mutually agree to be married

2. There must be a permanent relationship, exclusive of all others

3. The parties must reside together as a married couple

4. The parties must publicly hold themselves out as a married couple

5. The parties must have the legal capacity to marry. To have the legal capacity to marry, the following elements must be present:

o Neither party may be married to anyone else

o The parties must not be related to each other. A person may not marry an ancestor or a descendant, a stepparent or a stepchild, a sibling or a half-sibling, an aunt, uncle, niece, nephew, or a first cousin.

o The parties must be at least eighteen years old. If the parties are at least sixteen but under eighteen, the person under eighteen must have parental consent to the marriage.

o The parties must be mentally competent.

o A party may not remarry in Oklahoma within six months of divorcing.

o Neither party may induce the other party to marry by fraud, duress, misrepresentation, or error.

To read a court case that provides a simple, excellent explanation of the requirements of common law marriage in Oklahoma, see In re Phifer’s Estate, available here.

To prove the existence of a common-law marriage in court, the person asserting the existence of the marriage must prove a common-law marriage by “clear and convincing evidence.” Oklahoma law defines “clear and convincing” as “highly probable and free from serious doubt.” One of my law school professors suggested that there was no easy way to define “clear and convincing” but “think of it as 75%.”

Why is it called “common law” marriage?

In England, beginning in the Middle Ages, courts began to apply what came to be called “common law.” A simple definition of common law is “law that is based on court decisions.” In Oklahoma, no statute passed by the legislature recognizes common law marriage. Courts recognize common law marriage only because past Oklahoma court decisions (going back to dates before Oklahoma became a state) held that parties who mutually agreed to be married, who had a permanent relationship exclusive of all others, cohabitated, and openly held themselves out as married, and were legally capable of marrying, could establish a marriage.

In Oklahoma, there are two types of marriage: ceremonial marriage and common law marriage. The legislature established ceremonial marriage by statute. To enter into a ceremonial marriage, the spouses must obtain a marriage license from a court clerk, have the marriage solemnized by a judge or clergyperson, and two adult, competent witnesses must sign the marriage certificate. But, as early as 1905, courts of Oklahoma territory held that the marriage license requirements were only “directory” and that if spouses did not follow the ceremonial requirements, a court could still recognize the marriage as a common-law marriage.

Termination of common law marriage

A common law marriage terminates by divorce, or by the death of one of the spouses.

What does not establish a common law marriage?

1. Having a child together does not affect whether there is a common law marriage.

2. Owning property together does not affect whether there is a common law marriage.

3. Filing tax returns as a married couple, is not, in and of itself, determinative of whether there is a common law marriage. However, the fact that two people filed tax returns as a married couple, can be used as evidence that the parties publicly held themselves out as a married couple.

Relationship between Oklahoma and other states

Generally, in the United States, a marriage that is valid where contracted, is valid anywhere in the U.S. So, other states will usually recognize common law marriages by Oklahoma residents, even if the other state does not generally recognize common law marriage. Some states that do not have common law marriage will recognize an Oklahoma common law marriage of a couple who has a “substantial attachment” to Oklahoma.

Oklahoma has recognized common law marriages of non-Oklahoma residents, who live in non-common-law marriage states, when the couple had a substantial connection with Oklahoma. For example in In re Estate of Smart, the Oklahoma Supreme Court recognized a common law marriage by a couple who lived in California, but, for a period of sixteen years, came to Oklahoma two to three times a year, and stayed from two to five weeks at a time on property the husband owned in Oklahoma. The couple lived in California, which did not have common law marriage.

An invalid marriage may “ripen” into a valid common law marriage

In some cases, a marriage that was not valid when celebrated, may become a valid common law marriage if the impediment is removed. For example, in In re Estate of Smart, the spouses married when the husband was still married to another woman. The marriage was thus bigamous, and void. But, when the husband divorced his previous wife, his new marriage became a valid common law marriage. Also, if a spouse is underage, mentally incompetent, or if the marriage was entered into by fraud or duress, and the parties continue to live as a married couple after the spouse becomes an adult, regains mental competence, or learns of the fraud or duress, then the marriage may ripen into a valid common law marriage.

Is common law marriage an issue in your case?

Common law marriage can become an issue in certain types of cases; for example, probate cases are often contested based on whether someone may inherit property as the decedent’s spouse. Also, divorce cases may raise the issue of common law marriage, because parties must be married in order to get divorced. If your case has a common law marriage issue, the Persaud Law Office may be able to help you. Contact us today.



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