Common Law Marriages
No, you do not have a common law marriage if you are living with someone for a period of seven years or more (this is one of the most common misperceptions people have). Common law marriages harken back to an era when people lived on the frontier and may have been unable to get to the courthouse for a license or find an official to perform a ceremony.
Pennsylvania was one of the last states to abolish common law marriage. Common law marriages contracted prior to January 2, 2005 remain valid. Pennsylvania enacted the statute, which provides as follows:
23 Pa.C.S.A. § 1103. ”Common-law marriage- No common-law marriage contracted after January 1, 2005, shall be valid. Nothing in this part shall be deemed or taken to render any common-law marriage otherwise lawful and contracted on or before January 1, 2005, invalid.”
Common law marriages were extremely difficult to deal with and, in my opinion, undermined the formal procedure by which most people get married (ie. getting a marriage license). Problems arose when a person died or a couple split up and then the “boyfriend” or “girlfriend” would come forward and claim the couple really intended for their relationship to constitute a marriage even if they were never formally married. There always seemed to be money at stake when someone went to court and claimed a common law marriage.
Common law marriages were tolerated but not encouraged because they were difficult to regulate and to prove and because, like all oral contracts, they provided “a fruitful source of perjury and fraud.” The proponent of a common law marriage bears a “heavy” burden and the claim of marriage is reviewed with “great scrutiny.” The marriage must be established by clear and convincing evidence. Remarriage by common law following a divorce may be entitled to favored treatment rather than mere tolerance. Where a dispute arises only after the death of one of the parties, the purported marriage must be scrutinized carefully, particularly where a common law marriage is asserted to support a claim against the estate. A party seeking to exercise a spouse’s election against a will is not competent to testify in support of a claim of common law marriage. Questions of common law marriage sometimes arise in criminal cases when the issue of marriage is determinative of privilege or prisoners’ rights.
If you claim a common law marriage which was established prior to January 2, 2005, you have a heavy burden of proof to establish in court. You will likely have to show an intention to be considered “husband and wife”, that you held yourselves out as a married couple to others and maybe even that you had some sort of informal or unofficial ceremony to mark your intentions. You will fight an uphill battle but it is possible to prevail.