COMMON-LAW MARRIAGE IN OKLAHOMA

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 rrtracy@andrewsdavis.com.


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


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