Why Common-Law Marriage in Pennsylvania is Not so Common After All

Common-law marriage remains a hot topic in Pennsylvania, particularly for long-time, same-sex couples.  In the frontier days of Pennsylvania, when ministers, pastors, and judges were hard to find and even more difficult to meet, common-law marriages were a regular feature of life. Such marriages did not require a marriage license and a formal ceremony before a pastor who had legal authority to marry. Pennsylvania courts have long struggled when deciding if you are married by common-law when you don’t have a marriage license and there was no officiant or ceremony. The court’s determination could mean the difference between inheriting property from your spouse’s estate or losing all of the property that you built up over your years together. Today, the issue of whether or not you are in a common-law marriage also affects newly established rights, like Social Security spousal benefits and even death benefits under Workers Compensation laws.

When deciding whether you and your partner have a common-law marriage, Pennsylvania’s courts are required to answer many questions. Did you say the magic words, ”I take you as my spouse” or simply say, “I will marry you”? Did someone witness you saying those words? Did you live as spouses, and if so, for how long? Do you own a house together? Do you introduce your partner as your spouse? Do you go by your spouse’s last name? Have you filed tax returns together as spouses? Have you applied for credit cards together? Even, did you get mail addressed to you as Mr. and/or Mrs.? The most important question, though, is always whether the judge simply believes you. Courts were so distrustful of claims of common-law marriage, especially when one spouse was dead, that they imposed the highest burden of proof in civil cases, known as “clear and convincing” evidence. Sometimes, the courts made the correct decisions. Sometimes, they did not. Generally speaking, virtually no court saw or heard or believed the same evidence in the same way with the same result. There simply was no certainty.

To bring predictability to the legal status of marriage in Pennsylvania, its legislature passed a law that simply invalidates any common-law marriage that occurred after January 1, 2005. In other words, if you were not part of a common-law marriage on or before January 1, 2005, you are not married to your spouse under Pennsylvania law.  Common law marriages begun before that date could not be invalidated without violating the partners’ due process rights. Knowing your rights in common-law marriages is still important today, especially for same sex spouses.

Older same sex couples should be the most concerned because until 2014 Pennsylvania did not recognize the right to same sex marriage at all. Many of those marriages could still be valid in Pennsylvania. Each person in those marriages may have previously unknown rights to divorce, divide marital property, get or pay alimony, receive child support, share custody of children, and even inherit property that were not apparent before 2014.

Even if Pennsylvanians no longer can have valid common-law marriages after 2014, Pennsylvania courts must also still recognize out-of-state common-law marriages even today. However, Pennsylvania judges do not like deciding whether an out-of-state common law marriage is valid. It puts the Pennsylvania courts in the unwelcome situation of making decisions about a person’s rights under another state’s laws. Those legal rights judgments are particularly difficult for Pennsylvania judges to make because some states still do not recognize the right to same-sex marriage and many have different standards for common-law marriages. The few that still do recognize common-law marriages are considering legislation to invalidate them.

In the end, if you were in a common-law marriage in Pennsylvania on or before January 1, 2005, or are now in a common-law marriage that began in another state that recognizes common-law marriages, you may still be entitled to all of the rights of a spouse. Even if a court in your home state never decided whether you are in a common-law marriage, you may still be entitled to ask a Pennsylvania court to decide whether your out-of-state common-law marriage is valid under your home state’s laws and your marital rights protected.

If you think that you are a spouse in a valid, common-law marriage or have any questions about common-law marriage, please contact Gregory J. Spadea,, Esquire, at the Law offices of Spadea & Associates, LLC for free 20-minute consultation at 610-521-0604.

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