Common Law Marriage

                  Common law marriage sounds like a concept long ago forgotten from hundreds of years ago in England when Kings lived in castles and ruled like dictators. This antiquated law surely wouldn’t still be around today, would it? I mean if both parties wanted to be married, why wouldn’t they just get married?  Unfortunately, there are still a handful of states that recognize this outdated idea.

                  So why does a Missouri divorce lawyer care about common law marriage? That’s a good question! Our neighbor state, Kansas, is one of the few jurisdictions that still recognizes the formation of a legally valid marriage without a ceremony or legal certificate. The reason it is important for a Missouri family law attorney to be familiar with common law marriage is because although Missouri does not recognize the formation of a marriage in Missouri via common law, Missouri will recognize a valid common law marriage formed in a state where it is legal, such as Kansas. If a valid common law marriage is formed in Kansas, then the parties move to Missouri, Missouri courts would have jurisdiction over the divorce.

                  Let’s say hypothetically you have a couple living together in Missouri and for whatever reason, perhaps a new job, the couple decides to move to Kansas and rent an apartment in Overland Park. The couple’s Missouri blood just doesn't fit in well with some of the pretentious Jayhawk fans, and after two years the couple decides against renewing their lease and instead decides to buy a house in Blue Springs. Following an engagement, the couple gives birth to a baby girl, but the woman in the relationship suffers from severe post-partum depression which escalates into several years of severe alcohol use disorder and the associated consequential behavior. Our man hangs in there for two years because he doesn’t want his baby girl to grow up in a broken household, but after Momma cheats on him again, he decides he has had enough and leaves the relationship. One month later he is served with legal papers indicating his ex has filed for divorce despite the couple never formally getting married. The man is left wondering WTF and proceeds to contact a highly respected and handsome family law attorney dedicated to representing men in KC metro area.

                  So what the heck is common law marriage and what are the rules of this screwy concept?  The Kansas legislature established 3 criteria required to claim the establishment of common law marriage in Kansas, and all three must be met.  The first, and simplest, requirement is that both parties must have the capacity to marry. Both people must be at least 18 years of age, unmarried, both must have the mental capacity to consent to marriage, and they cannot be closely related. Even common law marriage is a contract, so it’s no surprise that the legal capacity (18 years old & mentally sufficient) to enter into a contract is required. All states have laws preventing close relatives from marrying, although 18 U.S. states allow marriages between first cousins. The primary reason, of course, is that close relatives have a higher likelihood of carrying the same recessive genes leading to a higher risk of genetic defects and disorders if the relatives reproduce together. Cue the banjo!

                  Criteria number two is a present agreement to marry. Although this agreement does not need to be in writing, there must be evidence showing both parties intended to enter into a marital relationship. Key to the agreement, there must be proven intent by both parties to enter into a marital relationship at that moment, not an agreement to marry at some point in the future. Thus an engagement does not satisfy the present agreement requirement because it is an agreement to be married in the future. Because a present agreement is a state of mind, courts require corroborating evidence involving the couple’s behavior, statements, and actions over time, in order to prove the existence of a present agreement.

                  The third area Kansas courts evaluate when determining the existence of a common law marriage is the action of the couple “holding themselves out” as husband and wife. To establish the existence of a marriage, the couple must publicly represent themselves and introduce themselves to family, friends and others as not just a couple in an exclusive relationship, but as husband and wife. It’s not enough for one party to tell everyone the couple is married, both parties must play the part.

Examples of behavior courts will consider a couple to be holding themselves out as married include:

• Using the same last name;

• Referring to each other as “husband,” “wife,” or “spouse;”

• Filing joint tax returns;

• Jointly owning property or sharing financial accounts;

• Listing each other as spouses on insurance or employment documents; and

• Wearing wedding rings.

There are some common misconceptions about the formation of a common law marriage in Kansas. First, there is no minimum number of years the parties must reside together, in fact living together for many years does not automatically create a common-law marriage in Kansas, especially in the absence of mutual assent and the public presentation of a married couple.  Similarly, having children together, buying a house, or sharing bills, does not legally compensate for the absence of the requisite intent and public representation.  Couples often look to documents like joint tax returns, joint bank accounts, shared property deeds, or an official affidavit (such as the one provided by the Kansas Attorney General), as evidence to support the existence of a common law marriage.

Although rare, women can and do claim a common law marriage exists in order to obtain financial benefits they are not legally entitled to, when neither party honestly believed they were married. If you choose to live with a woman in a state such as Kansas that recognizes common law marriages, it’s important to be aware of the potential risks. Never forgot the famous line from the 1697 play The Mourning Bride written by William Congreve, “hell hath no fury like a woman scorned.”

The Men’s Center for Domestic Resolution is a family law firm dedicated to helping men through divorce, child custody and other family law matters in Missouri. The Men’s Center is Kansas City’s father’s rights law firm.