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Common Law MarriageA Legal Institution for Cohabitation$

Göran Lind

Print publication date: 2008

Print ISBN-13: 9780195366815

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780195366815.001.0001

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Introduction

Introduction

Chapter:
(p.3) CHAPTER 1 Introduction
Source:
Common Law Marriage
Author(s):

Göran Lind

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195366815.003.0001

Abstract and Keywords

This chapter begins with a discussion of common law marriage in American law, including its definition, jurisdictions that recognize common law marriage, and the need for more in-depth legal discourse. An overview of the subsequent chapters is presented.

Keywords:   American law, common law marriage, jurisdictions

Marriage is a great institution – but who wants to live in an institution?

Old Vaudeville Joke

1.1 BACKGROUND

Several of the most characteristic developments affecting family law in the Western world during the last thirty years have been the decreasing rates of marriage, the increasing numbers of unmarried cohabiting couples, and the increasing numbers of children born in such relationships. The legal problems that these developments entail have catalyzed significant activity at both the judicial and legislative levels in several countries. In the United States, Northern and Western Europe, Canada, Australia, and New Zealand, the courts have attempted to resolve the family law problems of cohabiting parties through the application of property law principles. On the legislative level, several jurisdictions have enacted cohabitation legislation that, with respect to its legal effects, has increasingly come to resemble formal marriage. Some laws are based on the cohabitation, others on a registration. Couples of the same sex have also been included more and more. The need for legislation is discussed in even more countries. For example, in the United States, the American Law Institute (ALI) recommended legislation in 2002 concerning the division of property and maintenance upon the dissolution of “the relationship of domestic partners” inter vivos.1 According to the proposed ALI Principles, cohabiting unmarried couples, of both different and the same sexes, in principle are equated with married couples. Today, states in the United States are considering and discussing whether this legislation ought to be adopted. In the Western world in general, the courts and other governmental authorities are confronted with issues concerning the application of laws, including to whom the regulatory systems are to be (p.4) applied and, with respect to the future course of the law, the appropriateness of legislation as a method.2

1.2 THE OBJECT OF THIS EXAMINATION

Common law marriage is a long-standing American legal institution that highlights several of the questions that the modern development has raised. This informal marriage is the ultimate legal solution for cohabiting couples who have not formally entered into marriage in that it entails all the legal effects of marriage. This legal construction, the primary object of this investigation, has its origins in the two legal systems in the Western world that historically have had the broadest international application, namely, Roman law and medieval canon law. At the Council of Trent in 1563, the Roman Catholic Church established an unconditional form requirement for the commencement of a marriage, a resolution that was subsequently enacted in most other European legal systems. Although the majority of these systems have diverged from their historical beginnings, common law marriage has remained tied to its roots. The renaissance of legal solutions for informal cohabitation that in the Western world has gained ground during the last thirty years has been little influenced by common law marriage or its historical predecessors. There is scant awareness that “all roads lead to Rome.”

The term common law marriage has no etymological connection with the English common law, as this legal institution stems nearest from English ecclesiastic and therewith medieval canon law.3 The designation, however, is adequate to the extent that the legal institution in American law has developed, not through legislation, but in the main through case law that in this area has created an American common law.4 Even in states in which the doctrine has been codified to a limited extent, the designation common law marriage is ordinarily used. Other terms used are (p.5) informal marriage,5 irregular marriage, consensual marriage,6 unsolemnized marriage, and nonceremonial marriage.7 Given this historical perspective, the expression common law marriage is preferable, and is most commonly used in both the academic literature and the case law. It has been said that it is unusual for cohabiting couples to use this expression in describing their relationship.8

A closer definition of common law marriage will unfold in the material analyzed herein. As a starting point, however, in the broadest sense, let us characterize common law marriage as a legal institution that gives the legal effects of formal marriage to qualified couples who, without formally (p.6) having entered into marriage, are in agreement and live together under marriage-like conditions.9

Common law marriage is not, as sometimes assumed, a legal construction with the limited objective of reaching solutions in particularly exceptional cases. A common law marriage entails in principle all the legal effects of formal marriage.10 The parties in such a marriage consequently have the same obligations to each other during the marriage as do spouses. The dissolution of the relationship inter vivos occurs through marital divorce. Consequently, the establishment of a common law marriage is informal but its dissolution is formal. A common law marriage is not terminated merely by separation.11 A common case is the petition by a party for a marital divorce, child custody, maintenance, or the division of an estate, based on a common law marriage, while the other party denies the existence of such a marriage.12 Maintenance obligations against a previous (p.7) spouse can cease when the latter commences a new common law marriage.13 The same regulations for spouses concerning inheritance, wills, and the administration of estates are applicable.14 Children in a common law marriage are legitimate, and their parents have the same rights and responsibilities as formally married parents.15 A common law marriage constitutes an impediment against a later marriage, both ceremonial and common law. In some states, a person is guilty of bigamy when, knowing he or she (p.8) is common law married, the person purports to marry or cohabits with another person.16 The regulations for spouses concerning joint liability for certain debts are applicable as to parties in a common law marriage.17 A party in such a marriage has the same rights as those of a formal spouse for damages or loss of consortium if the other spouse was injured or died because of an assault or other cause by a third party.18 The parties, in addition, have the same right to social and insurance benefits as formally married spouses.19 From a tax perspective, they are viewed as formally married; in criminal cases, a party in a common law marriage has the same privilege as a spouse to refrain from witnessing against the other party.20 These are only a few examples of the implications of common law marriage.

1.2.1 Jurisdictions Recognizing Common Law Marriage

There is somewhat varying information concerning the number of states recognizing common law marriage. Certain differences are attributable to the different definitions that have been used and somewhat different (p.9) interpretations of the case law. Others are based on misunderstandings.21 If one begins with the jurisdictions that generally recognize common law marriage and give it all the legal effects of marriage, common law marriage today, based on a selection of the most recent decisions, can legally be established in Alabama,22 Colorado,23 the District of Columbia,24 (p.10) Iowa,25 Kansas,26 Montana,27 Oklahoma,28 Rhode Island,29 South Carolina,30 Texas,31 and Utah.32 Four additional states considered in this investigation repealed common law marriage during the 1990s and the beginning of (p.11) the 2000s, namely Ohio,33 Idaho,34 Georgia,35 and Pennsylvania.36 The latter are included in our investigation because the repeals were not retroactive (p.12) and the law in these states will, therefore, be of interest for a long time into the future. The investigation of current law primarily focuses on these fifteen jurisdictions, which have approximately 75 million inhabitants. In addition, common law marriage enjoys partial recognition in New Hampshire, where, in the event of a death, the surviving party in a common law marriage is granted the same rights as a surviving spouse, assuming that the parties lived together during the three last years prior to the death.37

Because of applicable choice of law rules between states, common law marriage has significance in all American states. The majority of these rules recognize common law marriages that have been established in a state in which such marriages can legally be established, which is of great practical significance, given how much people move from state to state. For example, as discussed subsequently, a short visit to a common law marriage state can give rise to a marriage without the parties' awareness. The chapter on conflict rules addresses all the states.

A large number of states are also considered in tracing the reception of common law marriage in order to fully show how common law marriage evolved in the United States. Moreover, many cases from other states contributed to the developments of the 1800s. Thus, this investigation encompasses all states and territories that have had their own legal systems.

In “Part III, The Future,” United States common law marriage is compared with cohabitation law in the Western world in general, including the legal systems in Northern and Western Europe, Canada, Australia, and New Zealand.

1.2.2 The Need for a More In-Depth Legal Discourse

Common law marriage has not been the object of any extensive academic legal investigation since Otto Koegel's meritorious dissertation of 172 pages, COMMON LAW MARRIAGE, dating from 1922.38 Articles with a mainly legal policy focus have treated the subject sporadically. However, those interested in current law have primarily been referred to treatises. The most often-cited during the last fifty years has been a twenty-five-page section in Homer Clark's THE LAW OF DOMESTIC RELATIONS, published in 1968 and updated in 1987.39 At the same time, the case law has been overwhelming since 1922. Approximately one hundred new judgments on common law marriage have been issued each decade in each state and (p.13) at the federal level; in other words, approximately one thousand cases. This flood of decisions has, to a great extent, lain unanalyzed. The state of the law has been and is complex, uncertain, and difficult to assess.

Occasionally, in the courts' decisions, there are more or less desperate cries concerning the legal uncertainty in the applicable principles as well as the numerous and often drawn-out lawsuits to which the legal regulations give rise. For example, in Ridley v. Grandison (1990), Justice Weltner at the Georgia Supreme Court exclaimed: “Plainly, the law of common law marriage is chaos that cries out for order.”40 Another example can be found in Russell v. Russell (1992), in which Chief Justice Walker at the Court of Appeals in Beaumont, Texas, begins the judgment with the statement that “this case is a trial judge's nightmare.”41 The problems the courts point to are also expressed in the legal academic scholarship. When Stuart Stein, in his 1969 article concerning informal marriage, states that “the law is highly uncertain and seemingly in a continued state of flux,” his assessment sums up the prevailing understanding during the 1900s.42

It is fair to ask whether contemporary rules regarding cohabitation will face similar problems. The hasty international development within private law has endeavored to reach solutions as to cohabiting parties' legal problems in country after country and has caused the courts to apply far-reaching analogies and, at times, pure fictions to attempt to resolve these problems. This indicates a need for academic legal reflection. The sudden international development of cohabitation legislation with legal effects that increasingly come to resemble common law marriage also occasionally gives the impression that urgent political desires have precluded allowing the time for contemplation that is necessary for academic legal analysis. There appears to be a need for a legislative and judicial “time out.” A historical, comparative, and sociological perspective as to the developments is needed in order to assess the appropriate legal strategy for the future.

(p.14) 1.3 OBJECTIVE, METHOD, MATERIALS, AND OUTLINE

Die reichte Quelle aller Entdeckungen in jeder

Erfahrungswissenschaft ist Vergleichung und Konstruktion.

Anselm Feuerbach

As is evident from the title, the objective of this work on a more general level is to investigate common law marriage, its historical origins, current status, and future. The general methodological starting point is in a legal investigation that without preconceptions seeks relevant knowledge through historical, comparative, and sociological perspectives. Within the framework imposed by domestic legal systems and other societal contexts, the aim is to use this knowledge to investigate the current status of the law, but primarily to discuss the future course of the law.

This open attitude to the search for knowledge is not free of objections. One certainly is reminded of Montesquieu's influential statement concerning the difficulties of comparing and transferring rules from one legal system to another: “Les Loix Politiques & Civiles de chaque Nation doivent être tellement propres au Peuple pour lequel elles sont faites, que c'est un très grand hasard si celles d'une Nation peuvent convenir à une autre.”43 The author's skepticism naturally rests on the environmental factors, such as “le climat, la Religion, les Loix, les maximes du Gouvernement, les exemples des choses passées, les moeurs, les manieres,” taken up in his celebrated catalog.44 Montesquieu's admonition of the “très grand hasard,” the very great risk, is usually viewed as particularly pertinent to family law – and in particular marital law – with its close connections to ethical, religious, social, and cultural fundamental conditions. Distinguished comparativists, even in modern times, have certainly warned of the difficulties in this area of family law.45

The general viability of Montesquieu's skepticism today can be questioned with reason, at least as long as the comparison is limited to the Western world. A voluminous flow of news, ideas, values, and cultural manifestations via modern media washes over with the speed of light throughout the world and is assimilated in people's thoughts and actions irrespective of national boundaries. The family and family law have not remained unaffected. In a manner that probably would amaze Montesquieu, radical winds, for better or worse, have swept through family law systems (p.15) since the late 1970s. No-fault divorce has been adopted throughout the Western world, even in Catholic countries where divorce previously was not permitted. Attitudes toward cohabitation outside of marriage and same-sex relationships have undergone considerable changes. Who, today, could have predicted that a Catholic country such as Spain would permit marriages between persons of the same sex?

In the Western world today, religious, cultural, ideological, social, and economic conditions appear sufficiently similar to actually be considered variations of one and the same culture. At the same time, legal systems vary sufficiently, so that a comparative perspective is fruitful. On the legislative level, purely political deadlocks can certainly impose impediments.46 Montesquieu's understanding, therefore, has a certain continued relevance with respect to politics, which encompass not only “[la] principe du Gouvernement qui est établi” but also “qu'on veut établir.”47 The task of legal scholarship, however, is broader and more long term than fulfilling the desires of temporary officeholders. In legal scholarship, a comparative perspective ought not be only a right, but also, perhaps more appropriately, an obligation. The simple but fundamental epistemological understanding is that legal scholarship should further the knowledge that a comparative investigation can provide and that sometimes can be utilized within one's own or another legal system.

On the judicial level, there is reason to encourage greater caution. For example, if the Roman jurist Ulpian has anything material to say to a court in Washington, D.C., Stockholm, or Sydney, it is the task of legal scholarship to convey the message.48 There are human values and conceptions that are relatively independent of time and space and the limits of environment. The consequences of these general methodological perspectives are illustrated more closely in the three parts of this work.

The objective and materials for each part are given below. In addition, each chapter has an introduction that explains its objective. Each chapter, in addition, has a summary of conclusions in which the chapter's significance is explained in terms of its interconnectedness with the treatise's other parts. A reader only interested in certain features of this investigation may choose to read the introductions and conclusions of the chapters he or she finds most pertinent. Each part is also set up so that a reader only interested in a certain part can limit his or her reading to that section. (p.16) The idea, however, is that the three parts enrich one another and are best read entirely.

PART I. THE ORIGINS

The Objective and the Outline

The objective of the two first chapters in Part I, Chapter 2, “Informal Marriages in Roman Law,” and Chapter 3, “Informal Marriages in Canon Law,” is to seek the origins of common law marriage in the ancient Roman and medieval canon law. Of interest in these chapters is how these worldwide legal systems, over approximately fifteen hundred years, attempted to solve the problems of a declining number of marriages and increasing informal cohabitation. These chapters study how legal effects were tied to different types of informal relationships, some recognized as marriage and others as concubinage. Of particular interest is investigating the legal requirements that had to have been fulfilled in order for legal effects to attach to informal relationships, and how the line of demarcation was drawn for relationships that fell outside of the systems. In a world of thought in which fundamental distinctions were made between body and soul, idea and action, subject and object, will and manifestation, it became natural within the legal scholarship to distinguish between the elements animus and corpus; and in marital laws, to distinguish between the parties' marital intent, affectio maritalis, and their actual objective cohabitation. Several of the fundamental ideas underlying the Western understanding of marriage were laid down in these systems. The legal significance attributed to these two elements was established by different relationships recurring in both legal systems, as with the related evidentiary issues. The criminal law used to enforce the rules fall outside the framework of this presentation.

The Roman and canon law concepts and distinctions are later utilized in Part II, which investigates the marriage contract's structure and content in current law (Chapters 6 and 7). The use in the future of a subjective contractual element with the establishment of a cohabitation relationship is specifically discussed in Chapter 13, Section 13.2. This concerns quite simply the question of whether the parties' own intentions in their relationship are to be given any significance in the establishment of a legal relationship. The role of contract law, therefore, becomes a central issue in the legal policy discussion as to the appropriateness of future common law marriage and cohabitation legislation as investigated in Chapter 14.

The second element, in other words, the corpus element or the cohabitation, and its significance as a legal element and as evidence in both the Roman and canon law free marriage and concubinage, is revisited in Part II. Cohabitation as an evidentiary fact is discussed in Chapter 7; its character (p.17) as an element in a marital presumption is analyzed in Chapter 9; and its character as a necessary requisite is examined in Chapter 8. All are treated within the framework of common law marriage. The possible future use of cohabitation as a basis for rights and obligations is discussed in Part III in Chapters 13 and 14. The discussion with respect to the future in Part III draws on past experiences in the application of the historical legal systems.

Chapter 4, “The Reception of Common Law Marriage in United States, maps the states and courts reception of this legal construction from the early 1800s and investigates the broader underlying reasons and causes for this development. The reasons why certain courts did not recognize common law marriage and the initial criticism that the institution met are also of interest. The investigation addresses the laws of all the states and certain territories, not only the states that today recognize common law marriage. A complete historical perspective requires an examination of the influence of many cases from many jurisdictions that influenced the development of common law marriage during the 1800s. The colonial period, to which very few references are made in later American case law, falls outside of this investigation.

The question of whether the historical reasons, causes, and critical views are tenable in today's society, as well as other modern arguments for and against common law marriage and cohabitation legislation, are critically reviewed and discussed in Part III.

The Material

The first two chapters on Roman and canon law are based on the Roman and canon sources of law and the research of scholars in these fields. The task of this work has not been to question the results of this research, but rather to seek, in these comprehensive legal historic materials, the origins of common law marriage. The material in Chapter 4, with the exception of individual legislation, consists almost entirely of extensive case law from all states and territories. Relevant academic literature and articles have naturally been taken into consideration.

PART II. THE CURRENT LAW

The Objective and the Outline

The boundaries between legal history, current law, and the future course of the law are somewhat tenuous in a legal system based on approximately two hundred years of case law, in which the uncertainty concerning that which may be viewed as the current law is significant. The objective of Part II is to identify the applicable common law based on case law and limited legislation. Of particular interest is investigating the conditions necessary (p.18) and sufficient for the establishment of a common law marriage. These requisites mark the line between, on one side, informal cohabitation recognized as a complete marriage and, on the other side, cohabitation entirely lacking legal effect, which until modern times, has even been criminally punishable.49 Many cases have attempted to determine whether a woman was a man's common law wife or simply a man's intimate friend;50 whether parties were husband and wife or simply friends and sweethearts;51 whether they, after a thirty-year cohabitation, were man and spouse or simply lover and paramour;52 whether a relationship was marriage or simply a love affair;53 or whether the relationship had undergone a formless “metamorphosis from concubinage to marriage.”54 Similar questions are raised in Part III, which addresses the attempts in modern cohabitation legislation to determine whether a couple's cohabitation is marriage-like enough to give rise to legal effects.

Chapter 5, “Legal Capacity and Common Law Marriage,” introduces Part II. Each legal system imposes a requirement of legal capacity to marry in order to prevent unsuitable relationships, given that the creation of families constitutes one of the cornerstones of the Western concept of marriage. Such requirements are also applicable to common law marriage. Ceremonial marriages are preceded by an assessment of whether impediments against marriage exist, but for common law marriages, these questions are often raised afterwards, for example, if one party presents a claim based on the common law marriage, upon separation or death of the other.

The objective of this chapter is to investigate how the system of first afterwards assessing the requirements of legal capacity has been applied in the case law and assess the outcomes, taking into consideration the objectives of the requirements. Specific attention is given to the age (p.19) requirements and the requirement that a party not be married to another person, whether through a previous ceremonial marriage or a common law marriage. For instance, a party may not be aware that he or she is in a common law marriage, and may separate without formally dissolving the marriage. If that party then enters into a new common law marriage or a ceremonial marriage, a number of intricate questions arise as to the validity of the new relationship.

The legal effects of modern cohabitation legislation include addressing the difficulty of achieving the objectives of the regulations concerning legal capacity without a licensing procedure, as well as resolving the evidentiary and legal certainty problems presented by assessments made afterwards. These questions are therefore revisited and discussed in terms of the future in Chapter 14, “Arguments For and Against Common Law Marriage and Cohabitation Law” of Part III.

Chapter 6, “The Common Law Marriage Contract,” focuses on a central inheritance from the Roman and canon law, namely the maxim, consensus facit nuptias. This concept that the parties' mutual intent is the basis for the marriage has always been one of the cornerstones of common law marriage. In all the jurisdictions recognizing such marriages today, the parties' marital consensus, in principle, constitutes one of the necessary requisites for establishing such a marriage. Wedding ceremonies or other forms are not necessary.

The objective of this chapter, therefore, is to investigate certain fundamental questions regarding the agreement that is the basis for a common law marriage. These are the nature of the marriage contract; the content of the intent; the distinction between an agreement de praesenti, in other words, an immediately valid agreement, and an agreement de futuro, in other words, an agreement concerning a future marriage; express agreements and the application of general contract law principles regarding offer and acceptance as to these; and certain issues with respect to the lack of agreement between intent and declaration of intent. Other sections in Part III, Section 13.2, “The Parties' Consensus as a Necessary Element,” and Section 14.3.1, “Limitation of the Freedom of the Parties,” consider the need for a marriage contract as a constitutive element and the functions of different contract constructions within the framework of common law marriage and cohabitation legislation, with respect to the future course of the law.

As it is very unusual for the parties in a common law marriage to enter into an express marriage contract, either oral or written, Chapter 7, “Implied Marriage Agreements,” is included. Typically, the parties quite simply move in and live together under marriage-like circumstances. It has even been asserted that the majority of such couples are not aware that their relationships are common law marriages.55 This chapter begins (p.20) by focusing on the reasons behind the acceptance of implied or inferred agreements with the establishment of a common law marriage, the development of the law during 1800s and the 1900s, and the state of the law today. A presentation follows of the evidentiary facts most commonly cited in the case law in support of inferred agreements. In addition, the courts' reasoning in a number of cases is more closely analyzed to ascertain how, from the facts cited, the courts establish the existence of an inferred marriage agreement and how they reason in those cases in which no agreement is proven. The question arises whether, in accepting inferred agreements, the courts must abandon the idea of a sharply defined contract, in which the parties at a certain point of time and a certain place entered into the agreement, and instead accept the Roman idea of a continual consent, consensus continuus.

Chapter 13, “The Constitutive Requisites in the Future,” addresses the issue of whether an application of the principles as to inferred agreements in the future is necessary in order for common law marriage to be able to give the protection intended by the legal institution, and whether this objective, in the future, can be met in another manner, as well as other more general issues. The reasons stated by the courts, as well as the reasons for and against an application of the principles as to inferred agreements, are critically reviewed.

Chapter 8, “Cohabitation, Holding Out, and Reputation as Spouses,” concerns the marriage concept's corpus element, objective circumstances that are historically diverse and highly debated. One issue is whether these circumstances constitute necessary requisites, in addition to the marriage contract, for the establishment of a common law marriage or whether they simply have the character of evidentiary facts for the parties' marital consensus. The latter is the pure contract principle. To fully grasp current law, it is necessary to examine the historically controversial aspects of this question, including the underlying reasons why and to what extent cohabitation has been accepted as a necessary requisite. The structure and elements of the concept of cohabitation are analyzed. The application problems associated with the objective element are also evaluated in this chapter.

The future function of cohabitation and the other objective elements within the framework of common law marriage or cohabitation legislation is discussed from an international perspective in Chapters 12, “Common Law Marriage and Cohabitation Law,” and 13, “The Constitutive Requisites in the Future.”

Chapter 9, “Burdens of Proof and Presumptions,” illustrates how the application of the substantive regulations is affected by burdens of proof and legal presumptions. At the same time, the underlying evidentiary rules and reasons reflect the attitudes of the courts and legislators toward the entire legal institution of common law marriage. The objective of this chapter, therefore, is to investigate which rules the courts actually apply (p.21) and for which reasons. Of particular interest is the marriage presumption, its origins and underlying values, the requirements for its application, its legal effects, and its relationship to the substantive law and to the fundamental regulations concerning the burden of proof and the standard of evidence. Chapter 13 discusses the use of the burdens of proof and legal presumptions from a future perspective. For instance, is it reasonable, today, to presume the existence of a marriage if a couple lives together under marriage-like circumstances?

Chapter 10, “Conflicts of Laws and Choice of Law,” assumes that common law marriage is of interest beyond the boundaries of those jurisdictions in the United States into which such marriages can be legally entered. This premise takes into consideration the significant mobility of people between states and the circumstance that all states under certain conditions recognize common law marriages that have been established in a state where such marriages can be entered into legally and according to their applicable regulations. Add to this that the courts in many states do not require that the parties have either a domicile or residence in a common law marriage state. Thus, even a short visit to such a state may establish a common law marriage with all the legal effects of marriage without the couple being aware thereof. This chapter, naturally, is of significant practical interest, but also raises technical, theoretical questions regarding the application of the principle lex loci contractus to inferred agreements. Questions are: In which state does the marital consensus exist? Can the parties be seen to have a continual consensus if they move from state to state? In addition, is evidence in the form of cohabitation in a state other than the common law marriage state relevant? Can the marriage presumption be based on such evidence? This chapter also shows how the substantive law of the common law marriage state is applied by courts in other states. The issues raised are based on a review of approximately two hundred fifty cases from all American states, which have scarcely received any previous academic legal attention.

Chapter 11, “Scottish Irregular Marriages,” is of interest because of the historical influence of Scottish law on American common law marriage,56 but also because of the remnant of formless marriages that persisted in Scotland, namely, “marriage by cohabitation with habit and repute.” This legal concept, its underlying reasons, as well as its legal nature, content and legal effects, are considered. Paradoxically, in December 2005, the Scottish parliament simultaneously repealed this surviving law in Scotland, and adopted cohabitation legislation. The discussion of the future in Chapter 14 considers why the institution of irregular marriage was supported in Scotland, the criticism directed against it, as well as the rationale for the new cohabitation legislation.

(p.22) The Material

The examination in Part II primarily concerns the American common law spanning over two centuries from the first leading case of Fenton v. Reed (1809), a period during which the higher courts have decided more than one thousand cases concerning common law marriage. Though not all these cases are cited, a large number are, which bears explanation. First, civil law lawyers primarily work within codified legal systems focusing on legislation and its preparatory works; case law only constitutes examples of how a legal rule has been applied. Part II, on the other hand, primarily is based on the common law as the primary source of law and therefore the cases are the basis for the applicable legal principles. As seen from Chapter 4, “The Reception of Common Law Marriage in the United States,” understanding legislation's secondary role entails understanding that common law marriage during the 1800s was recognized by many courts, despite the fact that all states had form requirements for the commencement of marriage. These regulations were not considered mandatory but simply “directory” as long as legislation did not expressly invalidate common law marriage. As individual cases at times simply illustrate one aspect of a problem, several cases often are required in order to formulate a principle. Second, Part II primarily concerns the fifteen jurisdictions that, in modern times, recognize common law marriage, though cases taking up different questions are also described for each state. Third, the treatise spans a period of time of two hundred years, and different cases from different times are presented to illuminate the development of the law. Fourth, the state of the law, as mentioned above, is often uncertain and in a state of flux. At times, the decisions differ not only from state to state, but also within the same state from court to court, and at times within the same court.

It ought to be mentioned that the courts, when addressing the same issue, as a rule appear to have attempted to adhere to stare decisis, according to which a court is bound by its own decisions and the decisions of higher courts in the same jurisdiction. The application of this principle in the United States courts, however, is less rigid than the tradition of English courts.57 Moreover, the facts often differ from case to case. It is often difficult to determine whether the court's reasoning has the character of a ratio decidendi or obiter dicta58 and how the circumstances in the cases cited have qualified as legal facts, evidentiary facts, or the elements in a presumption. The statement of the content that “each case rests on its (p.23) own bottom”59 is symptomatic in those cases in which higher controlling decisions have not existed. The courts, in their assessment of common law marriage, ordinarily have searched rather freely for guidance among judgments handed down throughout the United States, which often are given persuasive authority. Fifth, the discussions in Chapters 4 and 10 include all American states. The latter considers two hundred fifty cases.

With such voluminous case law, there has been restraint in giving lengthy descriptions of individual cases, and effort to cite only the core of the courts' reasoning. An exception is the Chapter 10 discussion of inferred marriage agreements. In order to be able to analyze how the courts allowed certain facts to be used to prove an inferred marriage agreement, a somewhat more detailed presentation of certain cases is necessary. To illustrate the issues about legal capacity in Chapter 5, in which several aspects of the relationships have been discussed, shorter summaries of the facts in a number of cases are given. Similarly, in Chapter 10, the conflicts of law between different jurisdictions are illustrated with cases in which the parties have had ties to different states.

The gathering of the case law for this investigation has occurred through a review primarily of the seven regional reporters that cover all American states and are included in West's Regional Reporters,60 as well as The New York Supplement and The California Reporter. Federal cases have been obtained from The Federal Reporter and with respect to those cases that have been decided by the United States Supreme Court, The United States Reports, The Supreme Court Reporter and United States Supreme Court Reports, Lawyers edition (L.Ed.) have been used. Particularly with respect to older cases, investigations have been made of all the states' own official reports as well as certain private collections. With respect to the most recent case law, Internet searches have been made with the help of West Law and Lexis Nexis. See the section, “Abbreviations,” at the back of this book for an explanation of how the reporters are cited.

To a limited extent, legislation is an object for this investigation. This concerns Texas, which codified common law marriage in 1969, and Utah, where the doctrine was reinstated through legislation in 1987.61 (p.24) Historically, common law marriage in the 1800s gained recognition in legislation in California, Idaho, the Dakota Territory, and Montana. Legislation, in general, has played a secondary role.

PART III. THE FUTURE

The Objective and the Outline

The objective of Part III is to conduct from historical, comparative, and sociological perspectives a legal policy discussion concerning the future of common law marriage and modern cohabitation law. This expansion of the perspective is motivated by the developments of the last thirty years and the perception that cohabitation law constitutes an alternative that fulfills comparable purposes, as does common law marriage. The historical perspective highlights several of the issues and experiences stemming from Roman and canon law and from two hundred years of common law marriage in the United States. Reason exists to learn from history!

This perspective compares developments in the United States, Northern and Western Europe, Canada, Australia, and New Zealand; in other words, countries in the Western world with sufficient similarity for a fruitful comparison. All jurisdictions in Part III are placed on an equal footing, meaning that material of interest is taken from them all. The exposition is directed at legislators and others around the world contemplating a strategy to face declining marriage rates; increasing numbers of unmarried, cohabiting couples; and the increasing number of children born outside of marriage.

The Western world faces a family law challenge during the twenty-first century that raises the following questions: Ought cohabiting unmarried couples, through the application of common law marriage or cohabitation legislation, be entirely equated with couples who formally marry? Or, in addition to marriage, should specific legal systems be constructed for unmarried cohabiting persons with legal effects other than those of marriage, and ought these be based upon cohabitation alone or on a registration? Or, ought cohabiting persons be encouraged to marry, and how? Or, ought unmarried cohabiting parties' legal problems be solved by the application of general civil law principles and agreements entered into by them and tailored to suit them best? Or, ought formal marriage be reformed to better fulfill the needs of families that are different because (p.25) of the specific situations and desires of the parties? The questions can continue.

Chapter 12, “Common Law Marriage and Cohabitation Law,” gives a background and a basis for the three chapters that follow it, and begins with the sociological perspective. Section 12.2, “Statistical and Demographic Data,” focuses on statistical data concerning the demographic development during the last thirty years in those above-mentioned countries. The objective is to assess the gravity of the Western trends in rates of marriage, numbers of children born to unmarried mothers, and the number of unmarried cohabiting couples. The goal is also to utilize the sociological research regarding cohabitation as a social phenomenon. Can this population be viewed as a homogeneous group in which all or the majority have the same needs and desire for legal regulations, or is it a heterogeneous group that requires a range of solutions? How does the sociological concept of cohabiting persons relate to common law marriage and legally regulated cohabitations?

Section 12.3, “Property Law Solutions in the Case Law,” addresses the property law solutions for unmarried cohabiting persons that, in the countries named, have grown in the private law case law outside of family law during the last thirty years. Here, solutions based on traditional, express agreements that the parties in a cohabitation relationship enter into are not presented. Instead, cases are discussed in which the courts considered cohabitation through the lenses of property law, looking at how cohabitation was interpreted in agreements and other legal actions, or is otherwise finding remedies that offer legal protection. In certain cases, the courts' reasoning rested on fictions that concealed the true basis of decisions, namely, cohabitation. The boundary between property law and family law has tended to become unclear, to the point that it has been said that common law marriage was let in through a back door.62 This section concludes with an attempt to clarify this boundary, and evaluate developments in these countries from a legal and political perspective.

Section 12.4, “Family Law Regimes for Unmarried Cohabiting Persons,” focuses on the intense development of cohabitation legislation that has occurred in the Western world during the last thirty years and its relationship to common law marriage. Is the development of cohabitation legislation simply on the way towards a common law marriage? Considered are the legal systems in which the cohabitation constitutes a basis for the rights and obligations, as well as those that require registration. A specific analysis of the concepts that have come to use are made in Chapter 13 and the reasons behind the new cohabitation legislation is discussed in Chapter 14.

Chapter 13, “The Constitutive Requisites in the Future,” is directed inter alia at legislators who intend to preserve or introduce common law (p.26) marriage or cohabitation legislation. The chapter focuses, therefore, on an analysis of the different elements that today constitute and in the future can be thought to constitute necessary requisites in the legislation. The function and effects of different elements are discussed. The requisites are significant as they determine which relationships fall within and outside of the regulatory systems' scope of application. The historical perspective, everything from the Roman and canon law to the lengthy American experience with common law marriage, evokes the question of whether, in the future, the parties' consensus ought to constitute a necessary requisite with the establishment of a legal relationship between persons cohabiting. This question has not received the attention it deserves in the modern cohabitation legislation, as seen in Section 13.2. The modern cohabitation legislation's requirements for cohabitation as well as the comparable experiences hereof within the framework for common law marriage are presented in Section 13.3, “Cohabitation as a Necessary Requisite.” The historical experiences also motivate contemplation of the use of burdens of proof and legal presumptions as discussed in Section 13.4. The issue of the consideration that ought to be given to the intentions of the parties with the establishment of a legal relationship affects other ideological questions concerning the state's power and the parties' autonomy, as discussed in Chapter 14.

Chapter 14, “Arguments For and Against Common Law Marriage and Cohabitation Law,” is primarily directed at legislatures in the Western world contemplating enacting or repealing common law marriage or cohabitation legislation, presenting and discussing arguments for and against these legal figures. The historical perspective invokes an assessment of whether the reasons underlying the medieval canon law marriage and the recognition of common law marriage during the 1800s in the United States are tenable in the future, as based on Chapter 4. In addition, the reasons that can be assumed to have lain behind the repeal of common law marriage in many of the American states during the 1900s are considered. The comparative perspective entails that the reasons that have been the basis for the enactment of or proposals concerning cohabitation legislation in Northern and Western Europe, Australia, New Zealand, Canada, and the United States, as well as the criticism that these meet, are reviewed. From the sociological perspective, the data presented in Chapter 12 add to the discussion.

All of the concerned legal systems are treated equally, however, though not necessarily in individual sections. Reasons and arguments stemming from the different legal systems are addressed by issue; the exposition is thematic. This chapter thus gives a legal comparative presentation, and a basis for a legal policy discussion of the reasons for and against common law marriage and cohabitation legislation.

Chapter 15, “A New of Model Marriage,” raises the final question of whether a reformed formal marriage can constitute an alternative to the (p.27) legalization of informal relationships through common law marriage and existing cohabitation legislation. This alternative is seen as a plausible way to avoid the significant problems that a legal regulation of informal relationships entails, as discussed in Chapter 14. Another objective is to expand spouses' freedom of choice among different formal regulations. As this subject falls somewhat outside of the framework of this treatise, which primarily focuses on the informal relationships, this chapter is an excursion into the future of formal marriage. However sketchy, these preliminary ideas are the basis of a discussion about alternatives, a primary concern in the Western world.

The Material

With respect to common law marriage, the materials presented in Parts I and II are utilized in Part III, as well as certain legislation that has repealed the institution. With respect to the sociological perspective, the material consists of sociological reports, academic literature, and articles. With respect to the comparative perspective, the material concerning the property law development outside of family law primarily consists of cases from the concerned countries. With respect to cohabitation legislation, the material consists primarily of legislation and the legislative preparatory works from the examined jurisdictions, as well as academic literature and the spirited legal policy debate in the legal periodicals. (p.28)

Notes:

(1) See AMERICAN LAW INSTITUTE (ALI), PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS (2002). For a critique, see Reconceiving the Family. Critique on the American Law Institute's Principles of the Law of Family Dissolution (Robin Fretwell Wilson ed., 2006).

(2) The international development is presented more closely below in Part III.

(3) The expression common law marriage already appears in JAMES KENT, COMMENTARIES ON AMERICAN LAW 2 (New York, William Kent 1826) and in the case law in Grisham & Ligan v. The State, 10 Tenn. 589 (1831); Cheney v. Arnold, 15 N.Y. 345, 69 Am. Dec. 609 (1857); and Carmichael v. State, 12 Ohio St. 553 (1861).

(4) In re Marriage of Phelps and Robinsonet seq.Meister v. Moore, 96 U.S. 76, 78 (1877)

(5) OTTO E. KOEGEL, COMMON LAW MARRIAGE AND ITS DEVELOPMENT IN THE UNITED STATES 7 (1922), uses as synonyms to common law marriage informal or irregular marriages. The latter terms are most common in Scottish law, see Chapter 11 infra. CHESTER G. VERNIER, AMERICAN FAMILY LAWS I, 103 (1931), speaks of the validity of common-law or informal marriages. Thirty years later, the expression recurs in Walter O. Weyrauch's essays, see, e.g., Informal Marriage and Common Law Marriage, in SEXUAL BEHAVIOUR AND THE LAW 297 (R. Slovenko ed. 1965). See also Nancy Rebecca Shaw, Note, Common Law Marriage and Unmarried Cohabitation: An Old Solution to a New Problem, 39 U. PITT. L. REV. 579 (1977), who speaks of “common law or informal marriage.” In Texas, where common law marriage has been codified, the applicable chapter is entitled: “Subchapter E. Marriage without formalities” and section 2.401 “Proof of Informal Marriage,” see TEX. FAM. CODE ANN. (Vernon 2005). Both expressions are used in the case law, even if common law marriage there is more common. In Russell v. Russell, 838 S.W.2d 909, 913 (Tex.App.-Beaumont 1992), the court states: “In this opinion we use the terms ‘informal marriage’ and ‘common- law marriage’ interchangeably.” The expressions informal or common-law marriage also appear in case law from Iowa, see e.g., In re Stopps' Estate, 244 Iowa 931, 57 N.W.2d 221, 224 (Iowa 1953).

(6) The expression consensual marriage appears particularly in older decisions, which can be explained by that the elements of the contract played a greater role before than today. See, e.g., State v. McFarland, 38 Kan. 664, 17 P. 654, 655 (1888); and Matney v. Linn, 59 Kan. 613, 54 P. 668 (1898). Ordinarily, the expression consensual marriage is used alternately with common law marriage, see Schuchart v. Schuchart, 61 Kan. 597, 60 P. 311 (1900); and Shorten v. Judd, 60 Kan. 73, 55 P. 286, 287 (1898). The expression can also be found even in more modern cases such as Driscoll v. Driscoll, 220 Kan. 225, 552 P.2d 629, 630 (1976), which discusses common law or consensual marriage. In Morrison v. Sunshine Mining Co., 64 Idaho 6, 127 P.2d 766 (1942), the court speaks in a similar manner of a “consent marriage.” A somewhat longer and more descriptive expression with the historical background is pre-Tridentine canonical consensual marriage, see Mueggenborg v. Walling, 836 P.2d 112, 115 (Okla. 1992).

(7) In Utah, where common law marriage was reinstated in 1987 through legislation, the heading to UTAH CODE ANN. § 30-1-4.5 (Supp. 1987) uses the term “Validity of marriage not solemnized.” Its Supreme Court speaks in Whyte v. Blair, 885 P.2d 791, 792 (Utah 1994), of “unsolemnized or common law marriage.” These expressions can also be found in case law from other states and at different points of time, see, e.g., People v. Spencer, 199 Mich. 395, 165 N.W. 921, 923 (1917), Bolz v. Bolz, 325 Mass. 726, 92 N.E.2d 365 (1950), Matter of Estate of Wagner, 126 Idaho 848, 893 P.2d 211, 212 (1995) and Baynes v. Baynes, 219 Ga.App. 848, 467 S.E.2d 195 (1996) (common law marriage and nonceremonial marriage). In Williams v. Williams, 46 Wis. 464, 1 N.W. 98, 101, 102, 32 Am.Rep. 722 (1879) and in Travers v. Reinhardt, 205 U.S. 423, 436, 27 S. Ct. 563, 51 L.Ed. 865, 871 (1906), the term marriage in fact appears.

(8) common law wifecommon law husbandseeEllen Kandoian, Cohabitation, Common Law Marriage, and the Possibility of a Shared Moral Life, 75 GEO. L.J. 1829, 1862 (1987).

(9) seeGrigsby v. Reib, 105 Tex. 597, 153 S.W. 1124, 1130 (Tex. 1913).

(10) General statements appear already in Askew v. Dupree, 30 Ga. 173 (1860), in which it was ascertained that a formless marriage “is to all intents and purposes a valid marriage.” In Beggs v. State, 55 Ala. 108, 112 (1876), the court stated that the parties in a common law marriage “stand to each other in the relation of husband and wife, having all the rights, and subject to all the duties, flowing from a marriage…” In Holmes v. Pere Marquette R. Co., 28 Ohio App. 297, 162 N.E. 675 (1928), the court explained that the parties in a common law marriage are “husband and wife as fully and to the same extent as if there had been a statutory and ceremonial marriage.” The court stated in a similar manner in Stump v. Stump, 111 Pa.Super. 541, 546 (1934): “It has the same force, effect and sanctity as one performed by a minister or magistrate.” In McClish v. Rankin, 14 S.2d 714, 718 (Fla. 1943), the court stated that: “It is patent that no distinction exists between the obligations and responsibilities of a marriage by ceremony and one consensus.” In Turner v. Turner, 251 Ala. 295, 37 So. 2d 186, 188-189 (1948), the court stated that one cannot be “a little bit married.” In Nat'l Union Fire Ins. Co. v. Britton, 187 F.Supp. 359 (D.D.C. 1960), it was maintained that a common law marriage is equally “lawful, solemn, and binding” as a ceremonial marriage. In Piel v. Brown, 361 So.2d 90, 93 (Ala. 1978), the court stated that “such a marital device exists in this state, not as an exception, but as a coequal, alternate method of validating the connubial union of two people.” See also Barron v. Apfel, 209 F.3d 984, 986 (7th Cir. 2000).

(11) In Dickey v. Office of Personnel Management, 419 F.3d 1336 (C.A.Fed. 2005), the court held that it was clear legal error to hold that a common law marriage can be terminated merely by separation. See also Bell v. Ferraro, 849 A.2d 1233 (Pa.Super. 2004); Buford v. Buford, 874 So.2d 562 (Ala.Civ.App. 2003); Eris v. Phares, 39 S.W.3d 708 (Tex.App.-Houston, 1 Dist. 2001); Stringer v. Stringer, 689 So.2d 194 (Ala.Civ.App. 1997); Cann v. Cann, 632 A.2d 322 (Pa.Super. 1993); Winfield v. Renfro, 821 S.W.2d 640 (Tex.App.-Houston 1991); Villegas v. Griffin Industries, 975 S.W.2d 745 (Tex.App.-Corpus Christi 1998); Matter of Estate of Stodola, 519 N.W.2d 97, 100 (Iowa App. 1994); and Prevatte v. Prevatte, 297 S.C. 345, 377 S.E.2d 114 (App. 1989) (divorce based on infidelity). In Skipworth v. Skipworth, 360 So.2d 975, 977 (Ala. 1978), the court stated that: “A party cannot legally terminate the marriage by simply changing his or her mind and moving out or by telling selected individuals, ‘We're not really married.’”

(12) Young-Jones v. Bell, 905 A.2d 275 (D.C.App. 2006); Cardwell v. Cardwell, 195 S.W.3d 856 (Tex.App.-Dallas 2006); Bevan v. Bevan, 2006 WL 1519654 (Ohio App. 11 Dist. 2006); Callen v. Callen, 365 S.C. 618, 620 S.E.2d 59 (2005); Toom v. Toom, 710 N.W.2d 258 (Iowa App. 2005); Perotti v. Meredith, 868 A.2d 1240 (Pa.Super. 2005); Lewis v. Anderson, 173 S.W.3d 556 (Tex.App.-Dallas 2005); Sulfridge v. Kindle, 2005 WL 1806482 (Ohio App. 4 Dist. 2005); Reyes v. Vasquez, 2005 WL 1389076 (Ohio App. 6 Dist. 2005); Faison v. Faison, 2005 WL 1303344 (Ohio App. 8 Dist. 2005); Harris v. Harris, 2004 WL 2896422 (Ohio App. 9 Dist. 2004); DeMelo v. Zompa, 844 A.2d 174 (R.I. 2004); In re Marriage of Lenz, 715 N.W.2d 770 (Iowa App. 2006); In re Marriage of Martin, 681 N.W.2d 612 (Iowa 2004); Ward v. Ward, 268 Ga.App. 394, 601 S.E.2d 851 (2004); In re Marriage of Phelps and Robinson, 74 P.3d 506 (Colo.App. 2003); Clark v. Clark, 423 Utah Adv. Rep. 3, 2001 UT 44, 27 P.3d 538 (Utah 2001); Fritz v. Mork, 2001 Iowa App. LEXIS 594 (2001); Standefer v. Standefer, 26 P.3d 104 (Okla. 2001); In re Estate of Antonopoulos, 268 Kan. 178, 993 P.2d 637 (1999); Earnheart v. Earnheart, 979 P.2d 761 (Okla.Civ.App. Div. 3 1999); Hansen v. Hansen, 958 P.2d 931 (Utah App. 1998) (divorce, custody, maintenance, a division of the estate); In re Custody of Nugent, 955 P.2d 584 (Colo.App. 1997) (divorce, custody, maintenance, a division of the estate); Kowalik v. Kowalik, 118 Ohio App.3d 141, 691 N.E.2d 1152 (1997); Krier v. Krier, 676 So.2d 1335 (Ala.Civ.App. 1996); Matter of Estate of Alcorn, 868 P.2d 629 (Mont. 1994); Lyon v. Lyon, 86 Ohio App.3d 580, 621 N.E.2d 718 (1993); Cann v. Cann, 632 A.2d 322 (Pa.Super. 1993); Mueggenborg v. Walling, 836 P.2d 112 (1992); Waller v. Waller, 567 So.2d 869 (Ala.Civ.App. 1990); In re Marriage of Mahaffey, 801 P.2d 1335 (Mont. 1990); Bochette v. Bochette, 386 S.E.2d 475 (S.C.App. 1989); Prevatte v. Prevatte, 377 S.E.2d 114 (App. 1989); In re Marriage of Stogdill, 428 N.W.2d 667 (Iowa 1988); East v. East, 536 A.2d 1103 (D.C. App. 1988) (maintenance to children); In re Marriage of Gebhardt, 426 N.W.2d 651 (Iowa App. 1988); In re Marriage of Geertz, 755 P.2d 34 (Mont. 1988); In re Marriage of Winegard, 278 N.W.2d 505 (Iowa 1979); and Com. ex rel. McDermott v. McDermott, 236 Pa.Super. 541, 345 A.2d 914 (1975) (support).

(13) Jackson v. Culp, 583 A.2d 1236 (Pa.Super. 1990); Whitley v. Whitley, 778 S.W.2d 233 (Mo.App. 1989); In re Marriage of Cargill & Rollins, 843 P.2d 1335 (Colo. 1993); Cathcart v. Cathcart, 414 S.E.2d 811 (S.C.App. 1992); In re Marriage of Dwyer, 825 P.2d 1018 (Colo.App. 1991); Doyle v. Doyle, 497 S.W.2d 846 (Mo.App. 1973); Rogers v. Rogers, 197 S.E.2d 921 (S.C. 1973); and Jeanes v. Jeanes, 255 S.C. 161, 177 S.E.2d 537 (S.C. 1970).

(14) Matter of Estate of Marson, 328 Mont. 348, 120 P.3d 382 (Mont. 2005), remanded for further proceedings; Pike v. Estate of Pike, 2005 WL 2248347 (Tex.App.-Ft. Worth 2005); In re Estate of Love, 274 Ga.App. 316, 319, 618 S.E.2d 97, 100 (2005); Matter of Estate of Crenshaw, 100 P.3d 568 (Colo.App. 2004); In re Ober, 2003 MT 7, 314 Mont. 20, 62 P.3d 1114 (2003); Wilkins v. Wilkins, 48 P.3d 644 (Idaho 2002); In re Estate of LeGrand, 259 Ga.App. 67, 576 S.E.2d 54 (2002); Gray v. Bush, 835 So.2d 192 (Ala.Civ. App. 2001); Creel v. Creel, 763 So.2d 943 (Ala. 2000); In re Estate of Sky Dancer, 13 P.3d 1231 (Colo.App. 2000); Matter of Estate of Hunsaker, 968 P.2d 281 (Mont. 1998); Butler v. Coonrod, 671 So.2d 750 (Ala.Civ.App. 1995); Matter of Estate of Alcorn, 868 P.2d 629 (Mont. 1994); Adams v. Boan, 559 So.2d 1084 (Ala. 1990); Coleman v. Aubert, 531 So.2d 881 (Ala. 1988); Matter of Estate of Giessel, 734 S.W.2d 27 (Tex.App.-Houston (1st Dist.) 1987); and Nestor v. Nestor, 15 Ohio St.3d 143, 15 O.B.R. 291, 472 N.E.2d 1091 (1984).

(15) S.J.S. v. J.O.S., 2006 WL 2089193 (Ala.Civ.App. 2006) (right to contest adoption); Hart v. Webster, 2006 WL 1707975 (Tex.App.-Austin 2006) (the presumption of paternity); In the Interest of D.C., 279 Ga.App. 889, 632 S.E.2d 744 (2006) (parental rights); Reed v. Madry, 585 So.2d 909 (Ala. 1991); and Edwards v. Edwards, 136 Ga.App. 668, 222 S.E.2d 169 (1975).

(16) Pike v. Estate of Pike, 2005 WL 2248347 (Tex.App.-Ft. Worth 2005); Phillips v. Dow Chemical Co., 186 S.W.3d 121 (Tex.App.-Houston (1 Dist.) 2005); Lee v. Lee, 201 A.2d 873, 875 (D.C.App. 1964); In re Zemmick's Estate, 17 Ohio Supp. 15, 76 N.E.2d 902, 905 (Ohio App. 1946); State v. Green, 99 P.3d 820 (Utah 2004) (bigamy); and State v. Thompson, 76 N.J.L. 197, 68 A. 1068 (1908) (bigamy).

(17) Warren Gen. Hosp. v. Brink, 80 Ohio App.3d 793, 610 N.E.2d 1128 (1992); Richland Memorial Hosp. v. English, 369 S.E.2d 395 (S.C.App. 1988).

(18) Drake v. Hinds, 2006 WL 1562511 (N.D.Iowa 2006); Phillips v. Dow Chemical Co., 186 S.W.3d 121 (Tex.App.-Houston (1 Dist.) 2005); Dickey v. Office of Personnel Management, 419 F.3d 1336 (C.A.Fed. 2005); Nava v. Reddy Partnership/Quail Chase, 988 S.W.2d 346 (Tex.App.-Houston (1st Dist.) 1999); Dalworth Trucking Co. v. Bulen, 924 S.W.2d 728 (Tex.App.-Texarkana (1996); and Mattison v. Kirk, 497 So.2d 120 (Ala. 1986).

(19) Coleman v. Nicholson, 2006 WL 1523178 (Vet.App. 2006) (death benefits); Snyder-Murphy v. City of Cedar Rapids, 695 N.W.2d 44 (Iowa App. 2005) (workmen's compensation); Int'l Painters and Allied Traders Ind. Pensions Fund v. Calabro, 312 F.Supp.2d 697 (E.D.Pa. 2004) (death benefits); Thompson v. Barnhart, 2005 WL 23347 (D.Kan. 2005) (widow's benefits); Reusser v. Mulvane Cooperative Union, 119 P.3d 705 (Kan. App. 2005) (workmen's compensation); Brandywine Paper Bd. v. W.C.A.B. (Zittle), 751 A.2d 1205 (Pa.Cmwlth. 2000) (workmen's compensation); Matter of Death of Boyd, 959 P.2d 612 (Okla.Civ.App. Div. 1 1998) (workmen's compensation); Blessing v. Deere & Co., 985 F.Supp. 899 (S.D.Iowa 1997) (pension rights); White v. State Farm Mut. Auto. Ins. Co, 907 F.Supp. 1012 (E.D.Tex. 1995) (insurance benefits); and Matter of Estate of Stodola, 519 N.W.2d 97 (Iowa App. 1994) (health insurance). In Scott v. Bd. of Trustees Mobile S.S. Ass'n, 859 F.2d 872, 875 (11th Cir. 1988), it was found that insurance terms that refused common law marriages the same status as ceremonial marriages were invalid as they violated public policy. See also Whyte v. Blair, 885 P.2d 791, 792 (Utah 1994) (automobile insurance); Gordon v. Railroad Retirement Bd., 225 U.S.App.D.C. 49, 696 F.2d 131 (1983) (social security); Freiburghaus v. Freiburghaus, 103 Idaho 679, 651 P.2d 944 (App. 1982) (life insurance); and Carter v. Firemen's Pension Fund, 634 P.2d 410 (Colo. 1981) (the right to pension).

(20) Hartfield v. Commissioner of Internal Revenue, 2006 WL 1280961 (U.S.Tax.Ct. 2006); Mesa v. United States, 875 A.2d 79 (D.C.App. 2005); Brown v. State, 108 P.3d 1018 (Kan.App. 2005); Davis v. State, 103 P.3d 70 (Okla.Cr.App. 2004); State v. Mireles, 904 S.W.2d 885 (Tex.App.-Corpus Christi 1995); Weaver v. State, 855 S.W.2d 116, 120 (Tex.App.-Houston (14 Dist.) 1993); and People v. Lucero, 747 P.2d 660 (Colo. 1987).

(21) In Kelley v. Kelley, 9 P.3d 171, 183 (Utah App. 2000), which describes the situation in 1987, Idaho, Georgia, South Carolina, Ohio, and District of Columbia were omitted incorrectly. See further Mary D. Feighny, Common Law Marriage: Civil Contract or “Carnal Commerce,” 70 KAN. B.J. 20 (2001), who only mentions eight states. She fails to include Oklahoma and does not mention the District of Columbia. Texas and Utah are referred to only as “variations of the doctrine” together with New Hampshire. Even Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Marriage, 75 OR. L. REV. 709, 715 (1996), fails to include Oklahoma and mentions 11 states as well as the District of Columbia, wherewith is included Idaho, in which common law marriage was repealed from 1996, see note 34 infra. The author fails to include Oklahoma also in Legal Treatment of Cohabitation in the United States, 26 LAW & POLICY 119, 122 (2004). Oklahoma was omitted also in David F. Crabtree, Family Law Recognition of Common-Law Marriages, 149 UTAH L. REV. 273, 275-276 (1988), and in GRAHAM DOUTHWAITE, UNMARRIED COUPLES AND THE LAW 11 (1979). Nevertheless, Oklahoma recognizes common law marriage, see note 28 infra. See further Lawrence W. Waggoner, Marital Property Rights in Transition, 59 MO. L. REV. 21, 75 note 133 (1994), who mentions Ohio, despite the fact that common law marriage was repealed there in 1991, see note 33 infra. Also in JUDITH AREEN, CASES AND MATERIALS ON FAMILY LAW 76 (3d ed. 1992), Ohio is taken up and Utah absent. Other sources that do not appear to have noted that common law marriage has been enacted in Utah are: Kathryn S. Vaughn, Comment, The Recent Changes to the Texas Informal Marriage Statute: Limitation or Abolition of Common Law Marriage?, 28 HOUS. L. REV. 1131, 1132, 1135 (1991) and Jack B. Helitzer, State Developments in Employee Benefits: Common-Law Marriage, 4 BENEFITS L.J. 95, 98, 104 note 48 (1991); and Joseph W. McKnight, Husband and Wife, 21 TEX. TECH. L. REV. 911, 937 (1990). Nevertheless, common law marriage was enacted in Utah through legislation in 1987, see note 32 infra. Finally in Sonya C. Garza, Common Law Marriage: A Proposal for the Revival of a Dying Doctrine, 40 NEW ENG. L. REV. 541, 545 (2005), incorrectly includes Idaho and Pennsylvania, compare infra notes 34 and 36 infra, and fails to include Oklahoma, compare supra note 28 infra and In re Marriage of J.M.H. and Rouse, 143 P.3d 1116, 1117 (Colo.App. 2006), incorrectly includes Idaho.

(22) S.J.S. v. J.O.S., 2006 WL 2089193 (Ala.Civ.App. 2006); (Buford v. Buford, 874 So.2d 562 (Ala.Civ.App. 2003); Gray v. Bush, 835 So.2d 192 (Ala.Civ.App. 2001); and Creel v. Creel, 763 So.2d 943 (Ala. 2000).

(23) In re Marriage of J.M.H. and Rouse, 143 P.3d 1116 (Colo.App. 2006); Matter of Estate of Crenshaw, 100 P.3d 568 (Colo.App. 2004); In re Marriage of Phelps and Robinson, 74 P.3d 506 (Colo.App. 2003); In re Estate of Sky Dancer, 13 P.3d 1231 (Colo.App. 2000); In re Custody of Nugent, 955 P.2d 584 (Colo.App. 1997); Whitenhill v. Kaiser Permanente, 940 P.2d 1129 (Colo.App. 1997); In re Marriage of Cargill & Rollins, 843 P.2d 1335 (Colo. 1993); In re Marriage of Dwyer, 825 P.2d 1018 (Colo.App. 1991); Crandell v. Resley, 804 P.2d 272 (Colo.App. 1990); and People v. Lucero, 747 P.2d 660 (Colo. 1987).

(24) Young-Jones v. Bell, 905 A.2d 275 (D.C.App. 2006); Crane v. Puller, 169 Md.App. 1, 899 A.2d 879 (Md.App. 2006) (applying District of Columbia law); Mesa v. United States, 875 A.2d 79 (D.C.App. 2005); Dickey v. Office of Personnel Management, 419 F.3d 1336 (C.A.Fed. 2005); Coates v. Watts, 622 A.2d 25 (D.C. App. 1993); Robinson v. Evans, 554 A.2d 332 (D.C.App. 1989); and East v. East, 536 A.2d 1103 (D.C. App. 1988).

(25) In re Marriage of Lenz, 715 N.W.2d 770 (Iowa App. 2006); Drake v. Hinds, 2006 WL 1562511 (N.D.Iowa 2006); Toom v. Toom, 710 N.W.2d 258 (Iowa App. 2005); Snyder-Murphy v. City of Cedar Rapids, 695 N.W.2d 44 (Iowa App. 2005); and In re Marriage of Martin, 681 N.W.2d 612 (Iowa 2004).

(26) Thompson v. Barnhart, 2005 WL 23347 (D.Kan. 2005); Reusser v. Mulvane Cooperative Union, 119 P.3d 705 (Kan.App. 2005); Brown v. State, 108 P.3d 1018 (Kan.App. 2005); In re Marriage of Kuzanek, 82 P.3d 528 (Kan.App. 2004); In re Marriage of Kopac, 30 Kan.App.2d 735, 47 P.3d 425 (2002); and In re Estate of Antonopoulos, 268 Kan. 178, 993 P.2d 637 (1999).

(27) Matter of Estate of Marson, 328 Mont. 348, 120 P.3d 382 (2005); In re Ober, 2003 MT 7, 314 Mont. 20, 62 P.3d 1114 (2003); Matter of Estate of Hunsaker, 968 P.2d 281 (Mont. 1998); and Matter of Estate of Alcorn, 868 P.2d 629 (Mont. 1994).

(28) Davis v. State, 103 P.3d 70 (Okla.Cr.App. 2004); Standefer v. Standefer, 26 P.3d 104 (Okla. 2001); Mueggenborg v. Walling, 836 P.2d 112 (Okla. 1992); Matter of Estate of Stinchcomb, 674 P.2d 26 (Okla. 1983); Tatum v. Tatum, 736 P.2d 506 (Okla. 1982); In re Estate of Hornback's Estate, 475 P.2d 184 (Okla. 1970); Hill v. Shreve, 448 P.2d 848 (Okla. 1968); and Parkhill Truck Co. v. Row, 383 P.2d 203 (Okla. 1963).

(29) DeMelo v. Zompa, 844 A.2d 174 (R.I. 2004); and Sardonis v. Sardonis, 106 R.I. 469, 261 A.2d 22 (1970).

(30) Callen v. Callen, 365 S.C. 618, 620 S.E.2d 59 (2005); Pirri v. Pirri, 369 S.C. 258, 631 S.E.2d 279 (App. 2006); Barker v. Baker, 330 S.C. 361, 499 S.E.2d 503 (App. 1998); Owens v. Owens, 466 S.E.2d 373 (S.C.App. 1996); and Kirby v. Kirby, 270 S.C. 137, 241 S.E.2d 415 (1978).

(31) Hart v. Webster, 2006 WL 1707975 (Tex.App.-Austin 2006); Cardwell v. Cardwell, 195 S.W.3d 856 (Tex.App.-Dallas 2006); Pike v. Estate of Pike, 2005 WL 2248347 (Tex.App.-Ft. Worth 2005); Lewis v. Anderson, 173 S.W.3d 556 (Tex.App.-Dallas 2005); Phillips v. Dow Chemical Co., 186 S.W.3d 121 (Tex.App.-Houston (1 Dist.) 2005); Nichols v. Lightle, 153 S.W.3d 563 (Tex.App.-Amarillo 2004); Canady v. Russell, 138 S.W.3d 412 (Tex.App.-Tyler 2004); Mills v. Mest, 94 S.W.3d 72 (Tex.App.-Houston (14th Dist.) 2002); Ganesan v. Vallabhaneni, 96 S.W.3d 345 (Tex.App.-Austin 2002); In re Estate of Loveless, 64 S.W.3d 564 (Tex.App.-Texarkana 2001); Jenkins v. Jenkins, 16 S.W.3d 473 (Tex.App.-El Paso 2000); Ballesteros v. Jones, 985 S.W.2d 485 (Tex.App.-San Antonio 1998); Shepherd v. Ledford, 962 S.W.2d 28 (Tex. 1998); Crowson v. Wakeham, 897 S.W.2d 779 (Tex. 1995); Flores v. Flores, 847 S.W.2d 648 (Tex.App.-Waco 1993); Russell v. Russell, 838 S.W.2d 909 (Tex.App.-Beaumont 1992), rev'd, 865 S.W.2d 929 (Tex. 1993); and Lorensen v. Weaber, 840 S.W.2d 644 (Tex.App.-Dallas 1992) rev'd 865 S.W.2d 929 (Tex. 1993). See also TEX. FAM. CODE ANN. § 2.401 (Vernon 2005).

(32) State v. Green, 99 P.3d 820 (Utah 2004); Clark v. Clark, 423 Utah Adv. Rep. 3, 2001 UT 44, 27 P.3d 538 (2001); Kelley v. Kelley, 9 P.3d 171 (Utah App. 2000); and In re Marriage of Gonzalez, 387 Utah Adv. Rep. 89, 2000 UT 28, 1 P.3d 1074 (2000). Common law marriage was reinstated in Utah 1987 after having been repealed 1888, see UTAH CODE ANN. § 30-1-4.5 (Supp. 1987), effective April 27, 1987.

(33) OHIO REV. CODE ANN. § 3105.12 (B) (1, 2) (West. 1991). See Bevan v. Bevan, 2006 WL 1519654 (Ohio App. 11 Dist. 2006); Sulfridge v. Kindle, 2005 WL 1806482 (Ohio App. 4 Dist. 2005); Reyes v. Vasquez, 2005 WL 1389076 (Ohio App. 6 Dist. 2005); Faison v. Faison, 2005 WL 1303344 (Ohio App. 8 Dist. 2005); Harris v. Harris, 2004 WL 2896422 (Ohio App. 9 Dist. 2004); Cunningham v. Apfel, 12 Fed.App. 361 (C.A.6 (Ohio) 2001); Kowalik v. Kowalik, 118 Ohio App.3d 141, 691 N.E.2d 1152 (1997): State v. Phelps, 100 Ohio App.3d 187, 652 N.E.2d 1032 (1995); In re Estate of Shepherd, 646 N.E.2d 561 (Ohio App. 3 Dist. 1994); Lyon v. Lyon, 86 Ohio App.3d 580, 621 N.E.2d 718 (1993); Warren Gen. Hosp. v. Brink, 80 Ohio App.3d 793, 610 N.E.2d 1128, 1129 (1992) (“Ohio will no longer recognize common-law marriages initiated in Ohio after October 10, 1991”); and Nestor v. Nestor, 15 Ohio St.3d 143, 15 O.B.R. 291, 472 N.E.2d 1091 (1984).

(34) In Idaho, common law marriage has been repealed effective 1996, see H.B. 176; Chap. 104, 1995 Idaho Session Laws; IDAHO CODE ANN. § 32-201 (2) (Michie 2003): “The provisions of subsection (1) of this section requiring the issuance of a license and a solemnization shall not invalidate any marriage contract in effect prior to January 1, 1996.” See also Wilkins v. Wilkins, 48 P.3d 644 (Idaho 2002); Matter of Estate of Wagner, 126 Idaho 848, 893 P.2d 211 (1995); and McCoy v. McCoy, 868 P.2d 527 (Idaho App. 1994).

(35) GA. CODE ANN. §§ 19-3-1, 19-3-1.1 (West 2003): “No common-law marriage shall be entered into in this state on or after January 1, 1997. Otherwise valid common-law marriages entered into prior to January 1, 1997, shall not be affected by this Code section and shall continue to be recognized in this state.” Compare In the Interest of D.C., 279 Ga.App. 889, 632 S.E.2d 744 (2006); In re Estate of Love, 274 Ga.App. 316, 618 S.E.2d 97 (2005); Ward v. Ward, 268 Ga.App. 394, 601 S.E.2d 851 (2004); In re Estate of LeGrand, 259 Ga.App. 67, 576 S.E.2d 54 (2002); Finch v. Dasgupta, 251 Ga.App. 637, 555 S.E.2d 22 (2001); In re Estate of Wilson, 236 Ga.App. 496, 512 S.E.2d 383 (1999); Wright v. Goss, 229 Ga.App. 393, 494 S.E.2d 23, 25 (1997); and Ridley v. Grandison, 260 Ga. 6, 389 S.E.2d 746 (1990).

(36) Perotti v. Meredith, 868 A.2d 1240 (Pa.Super. 2005); Bell v. Ferraro, 849 A.2d 1233 (Pa.Super. 2004); Stackhouse v. Stackhouse, 862 A.2d 102, 2004 Pa.Super. 427 (2004); Int'l Painters and Allied Traders Ind. Pensions Fund v. Calabro, 312 F.Supp.2d 697 (E.D.Pa. 2004); and Staudenmayer v. Staudenmayer, 714 A.2d 1016 (Pa. 1998). Compare PNC Bank Corp. v. Workers' Comp. Appeal Bd. (Stamos), 831 A.2d 1269 (Pa.Cmwlth. 2003), in which the court attempted to repeal common law marriage. The attempt was not accepted in Bell and Stackhouse with reference to that it is a matter for the legislature. The Pennsylvania Supreme Court has not taken a stance after Staudenmayer. The most common understanding in the case law is that legislation is required in order to repeal common law marriage, see, e.g., from Pennsylvania, Interest of Miller, 301 Pa.Super. 511, 448 A.2d 25 (1982); Buradus v. Gen. Cement Products Co., 159 Pa. Super. 501, 506, 48 A.2d 883 (1946), aff'd, 356 Pa. 349, 52 A.2d 205 (1947); Fisher v. Sweet & McClain, 154 Pa.Super. 216, 35 A.2d 756, 760 (1944), and from other states, In re Marriage of J.M.H. and Rouse, 143 P.3d 1116, 1118 (Colo.App. 2006); Goode v. Goode, 396 S.E.2d 430 (W.Va. 1990); In re Stopps' Estate, 244 Iowa 931, 57 N.W.2d 221, 223 (1953); Hoage v. Murch Bros Const. Co., 60 App. D.C. 218, 50 F.2d 983, 986 (D. C.Cir. 1931); Offield v. Davis, 100 Va. 250, 40 S.E. 910 (1902); Hulett v. Carey, 66 Minn. 327, 69 N.W. 31, 34 (1896); and United States v. Simpson, 4 Utah 227, 7 P. 257, 258 (1885). Common law marriage was finally abolished in Pennsylvania by legislation, effective January 1, 2005. Common law marriages entered into after this date are not valid, but relationships entered into on or before January 1, 2005, would be recognized. See 23 PA. CONS. STAT. ANN. § 1103 (West 2005); Amendment A3597, House Bill 2719, Senate Bill 985 (Pa. Leg. 2004). In Costello v. Workers' Comp. Appeal Bd. (Kinsley Constr., Inc.), 2006 WL 4043525 (Pa.Cmwlth. 2006), the court accepted that the case of PNC Corp. was overruled by the legislation. Therefore a common law marriage established after PNC Corp., but before the legislation was effective, was valid.

(37) cohabitationcommon law marriage, seeGray v. Gray, 379 A.2d 442, 445 (N.H. 1977)In re Estate of Buttricksee

(38) See KOEGEL, supra note 5. Compare ROBERT. E. DILLON, COMMON LAW MARRIAGE (1942), who treats the Catholic Church's attitude.

(39) Homer H. Clark, Jr., THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES 45-58 (1968), I, 100-124 (2d ed. 1987).

(40) Ridley v. Grandison, 260 Ga. 6, 389 S.E.2d 746, 749 (1990).

(41) Russell v. Russell, 838 S.W.2d 909, 911 (Tex.App.-Beaumont 1992).

(42) Stuart J. Stein, Common-Law Marriage: Its History and Certain Contemporary Problems, 9 J. FAM. L. 271, 290 (1969). VERNIER, supra note 5, p. 103, described in 1931 the state of the law as chaos: “There is too much confusion, conflict and uncertainty.” Thirty years later, Walter O. Weyrauch, Informal and formal marriage - an appraisal of trends in family organization, 28 U. CHI. L. REV. 88, 91 (1960) noted: “Whatever hazy notions we have vary not only from jurisdiction to jurisdiction but from case to case within a recognizing jurisdiction.” See further Olen E. Adams, Note, Common Law Marriage in Oklahoma, 14 OKLA. L. REV. 291, 292 (1961): “[T]here is no point of civil law concerning domestic relations, which is more confusing and upon which one will find more contradictory decisions than common-law marriage.” The same assessment recurs 18 years later in William W. Hood, Jr., Common-law marriage in Oklahoma: A Survey, 49 OKLA. B.J. 1505, 1506 (1978) and in the beginning of the 1980's it was said as to the term “common law marriage” that “its conceptual equivalents are hazy,” see WALTER O. WEYRAUCH & SANFORD N. KATZ, AMERICAN FAMILY LAW IN TRANSITION 118 (1983).

(43) CHARLES DE MONTESQUIEU, L'ESPRIT DES LOIS, Liv. I, Chap. III (Genève, Barillot & Fils 1748).

(44) MONTESQUIEU, id., Liv. XIX, Chap. IV.

(45) H.C. GUTTERIDGE, COMPARATIVE LAW 32 (2d ed. 1949); Stig Strömholm, Användningen av utländskt material i juridiska monografier. Några anteckningar och förslag, 56 SvJT 260 (1971); Otto Kahn-Freund, On Uses and Misuses of Comparative Law, 37 MOD. L. REV. 1 (1974); and MARY ANN GLENDON, STATE, LAW AND FAMILY. FAMILY LAW IN TRANSITION IN THE UNITED STATES AND WESTERN EUROPE 17 (1977).

(46) Despite the homogeneity concerning fundamental societal conditions and values characterizing, for example, the Nordic countries in Europe, at times it has been difficult to reach mutual solutions for political reasons, see SOU 1981:85, ÄKTEN SKAPSBALK, p. 118.

(47) MONTESQUIEU, id., Liv. I, Chap. III.

(48) See, e.g., Ulpian's maxim: Consensus facit nuptias, with respect to the Roman law see Section 2.4.2, with respect to the Medieval Canon law, Chapter 3.3.3, with respect to common law marriage, Section 6.1 and with respect to the discussion concerning the constituent elements facing the future, Section 13.2, supra.

(49) See, e.g., Smith v. Smith, 161 K.I, 165 P.2d 593 (1946).

(50) In Dowell v. Welch, 574 P.2d 1089 (Okla.App. 1978), Presiding Judge Brightmire in the Court of Appeals in Oklahoma stated: “Was appellee Orpha Welch, the paramour or common-law wife of the late Chester A. Dowell when he died April 8, 1976? Decedent's son, Chester Ralph Dowell, says she was no more than an intimate friend. The court that heard the evidence found, however, that she was the senior Dowell's surviving spouse. We affirm.” Compare Brinckle v. Brinckle, 12 Phila. 232, 236 (1877), in which the court stated: “That the plaintiff was either the mistress or the wife of the defendant admits of no doubt.”

(51) In the Matter of Estate of KoshmanTexas Employers' Ins. Ass. v. Elder, 274 S.W.2d 144, 146 (Texas 1954)

(52) McSweeney c. Celebrezze, 253 F.Supp. 100, 101 (U.S.Dist.N.Y. 1966).

(53) Guardians of the Poor v. Nathans, 2 Brewster 149, 177 (1845). The court found a common law marriage proven. In Duncan v. Duncan, 10 Ohio St. 181, 188, 1859 WL 67 (1859), the court expressed concern over that “God-ordained matrimony” and simply “meretricious cohabitation” were being placed on an all too equal footing.

(54) McClish v. Rankin, 14 S.2d 714, 717 (Fla. 1943). Compare Wilkins v. Wilkins, 48 P.3d 644, 650 (Idaho 2002), in which the court found that the parties considered each other as “something less than a spouse and more like a ‘good friend’.”

(55) Graham Kirkpatrick, Common-Law Marriages: Their Common Law Basis and Present Need, 6 ST. LOUIS U. L.J. 30, 47 (1960).

(56) See Chapter 4, The Reception of Common Law Marriage in the United States and Chapter 7, Implied Marriage Agreements, infra.

(57) Helvering v. Hallock, 309 U.S. 106, 119, 121, 60 S.Ct. 444, 84 L.Ed. 604 (1940). Compare Melvin Aron Eisenberg, The Nature of the Common Law 47 (1988); and Edward H. Levi, An Introduction to Legal Reasoning, passim. (1948).

(58) CompareArthur Goodhart, Determining the Ratio Decidendi of a Case, 40 YALE L.J. 161, 182 f (1930).

(59) Carmichael v. State, 12 Ohio St. 553 (1861); and Jackson v. United States, 14 F.Supp. 132 (1936), aff'd, 89 F.2d 572 (1937), aff'd, 302 U.S. 628, 82 L.Ed 488, 58 S.Ct. 390 (1938).

(60) The North Western Reporter, The North Eastern Reporter, The Atlantic Reporter, The South Western Reporter, The South Eastern Reporter, The Southern Reporter and The Pacific Reporter.

(61) The legislation both in Texas and in Utah limits itself to several individual regulations, see “Subchapter E. Marriage without formalities,” section 2.401-2.404, TEX. FAM. CODE ANN. (Vernon 2005) and § 30-1-4.5, “Validity of marriage not solemnized,” UTAH CODE ANN. (Supp. 1987). Before the repeal, effective January 1, 2005, Pennsylvania's marital legislation prescribes only: “This part shall not be construed to change the existing law with regard to common-law marriage,” see § 1103, “Common-law marriage,” PA. CONS. STAT. ANN. (West 2003). A similar regulation exists in Montana, see MONT. CODE ANN. § 40-1-403 (Mont. Leg. Serv. Div. 2003). Individual regulations are applied in other states as to common law marriage. With respect to Idaho, see IDAHO CODE ANN. § 32-201 (1985); H.B. 176; Chap. 104, Idaho Session Laws (1995). With respect to Iowa, see IOWA CODE ANN. 595.1 (West 2003). With respect to Georgia, see GA. CODE ANN. §§ 19-3-1, 19-3-1.1 (West 2003). With respect to Kansas, see KAN. STAT. ANN. 23-101 (2003).

(62) Hewitt v. Hewitt, 77 Ill.2d 49, 31 Ill.Dec. 827, 394 N.E.2d 1204, 1207-1211 (1979). See also Homer H. Clark, Jr., The New Marriage, 12 WILLAMETTE L.J. 441, 449 (1976).