by Ron Tracy

     It is generally acknowledged that marriage rates in the United States have been in significant decline for many years. For example, according to one study, from 1970 to 2012 the marriage rate declined almost 60%, from approximately 74 marriages each year per 1,000 unmarried women, to approximately 31 marriages per 1,000 unmarried women.[1] While the cause or causes of the decline are debatable, one likely factor is society’s increased acceptance of cohabitation and childrearing without the formality of marriage.

     For residents of Oklahoma, however, one concept unwed cohabitants should be aware of is that of common-law marriage, as Oklahoma is one of only 15 states that recognize the doctrine. Failure to do so could result in the State, or a divorce judge more specifically, tying the proverbial “knot” for you.

     As its name implies, common-law marriage originated in the common law, recognized in England as far back as the 1700’s and later adopted in American jurisprudence. It is a marriage based not upon ceremony or legal formalities, but rather upon consent of the parties. This consent is typically not expressed in writing, but rather through acts and conduct, which can leave plenty of room for debate when un-wed parties decide to separate.

     In Oklahoma, courts have consistently recognized common-law marriage and will treat it as any other marriage, subject to the same rules and procedures. The only difference is that the party asserting a common-law marriage must allege a common-law marriage in their pleadings and will have the burden of establishing the marriage at trial, absent agreement of the other party.

     In general, a common law marriage occurs in Oklahoma upon the happening of three events: a declaration by the parties of an intent to marry; cohabitation; and a holding out to the community as being husband and wife. Brooks v. Sanders, 2008 OK CIV APP 66, 190 P.3d 357. The issue is whether there was an agreement between the parties, not in the future, but in the present. Mudd v. Perry, 1925 OK 19, 235 P.479. This is because, “a mere promise of future marriage, followed by illicit relations, is not, in itself, sufficient to constitute such marriage.” Brooks, supra, at syl.3.

     Fortunately for a hesitant common-law spouse, a common law marriage must be established by clear and convincing evidence (a high burden), although the relationship may be proved by both direct and circumstantial evidence. Maxfield v. Maxfield, 1953 OK 390, 24, 258 P.2d 915. Examples of such evidence include, but are not limited to: filing tax returns as married (Muggenborg v. Walling, 1992 OK 121, 836 P.2d 1120; holding out public acknowledgement as husband and wife (D.P. Greenwood Trucking Co. v. State Indus. Com’n, 1954 OK 165, 271 P.2d 339); and using the other party’s last name and charging medical bills to their insurance (State ex rel. Oklahoma Bar Association v. Askins, 1993 OK 78, 882 P.2d 1054). Notably, it has been held that divorced parties can subsequently enter into a common law marriage. Harrison v. Burton, 1954 OK 332, 303 P.2d 962.

     Although it does not arise frequently, common-law marriage is nevertheless a recognized part of Oklahoma’s jurisprudence. It will likely remain so as long as society continues its increase in the rate of cohabitation without the formality of traditional marriage.

For more information, please contact Ron Tracy at 272-9241 or

[1] National Center for Family and Marriage Research at Bowling Green State University.

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5 comments (Add your own)

1. Guillermina Taylor wrote:
Dear Andrews Davis,
I have a question the concerns common law marriage
and social security widows benefits?
My husband George E. Taylor and I agreed to marry in
the present in 1970; to cohabitation; and a holding out
to the community as being husband and wife. we had
lived together in California about a year as a married
couple, then moved to Oklahoma and we agreed to a
common law marriage after two months we had to move to Chicago because my husbands father was ill
and we needed to take care of him. We continued to
live there for 5 years as a married couple. In May of
1984 my husband past, now I am living in California
and applying for widows benefits and social security
administration is telling me I do not qualify for the
widows benefits because we were not residents and
our stay in Oklahoma was not long enough to have a
common law marriage in Oklahoma is what the S.S.A.
telling me accurate information? I have not read any
thing that confirms what the S.S.A. has concluded as
the reason for denying my widows benefits.
Any information would be of help.
Guillermina Taylor

Thu, July 13, 2017 @ 8:50 PM

2. L. King wrote:
I am a resident of Oklahoma City for over thirty years, my common-law husband died on June 6th of this year, his personal Bank saving account had money left not a large amount but it is still in the bank, they send the statement to our home, is there a legal way that I can get this without it being a big mess. His family do not want anything to do with it . They live in Calif.

Sun, October 15, 2017 @ 4:39 AM

3. Tammy wrote:
Since 2010 I have been with mark morgan. we have filed taxes together. lived in the same home. He just recently got a settlement for a wreck. Am I entitled to any of this.

Sat, March 24, 2018 @ 8:32 PM

4. Allison Roche wrote:
Hello, my name is Allison Roche, and I have a common law marriage and social security question.
I’m a 62 year old Certified Okla. Elementary Teacher with Mid-Del Schools and would like to retire soon. My husband and I were married for 7 months before he passed away at 72. We had lived together for 10 years and considered ourselves common law married. He absolutely wanted me to benefit from his social security benefit as it is twice the amount mine will be. Social security says you must be married for at least 9 months. In a common law state like Oklahoma, I understand that you must show clear and convincing evidence of the Common Law Marriage.
I have collected all of the evidence required for filing as common law married in Oklahoma according to Okla. law and two different social security clerks on two different face-to-face meetings with ss. On a third visit and ready to turn in all of my diligently gathered information including signed affidavits from my husband’s blood relatives, a different social security clerk told me that I would not qualify because we got married. She went on to say that if we hadn’t gotten married, I would have qualified.
With two clerks telling me it was possible and the months of work I did collecting all the information that they said would qualify me; to be shut down by the third clerk…well, as you can imagine, I was devastated. I felt like social security deceived me, lied to me, and/or was terribly negligent in their duties. Also, I have no idea if the third clerk was right or the first two??
So my question is: In your opinion, do I have any recourse or leg-to-stand-on in order to contest the response of the third and last clerk that I spoke with at social security? If so, could you take on my case?
Thank you in advance for any help that you can provide. Call, text, or email me anytime at: 405-496-9002 or
Allison Roche

Wed, April 11, 2018 @ 7:58 PM

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Fri, May 4, 2018 @ 5:59 AM

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