Marriage

Marriage is the legal creation of the status of husband and wife between two parties who consent to enter into the relationship.

Legal Requirements for Traditional, Ceremonial Marriage

The parties must obtain a marriage license in order to have a valid ceremonial marriage which is recognized by the state. In Pennsylvania, the following requirements must be satisfied to obtain the marriage license:

Both parties must file a certificate signed by a licensed physician indicating that the applicant is free from communicative syphilis. Typically the couple has a blood test performed in order to obtain this certificate.

There are special rules which apply when one of the persons wishing to marry is under the age of 16, or under the age of 18.

There are times when a marriage license will not be issued, such as when either of the applicants is under the influence of intoxicating liquor or narcotic drugs.  There are also certain forbidden circumstances under which two persons will not be allowed to marry, for instance, when they are too closely related either by blood or other relationship.  

Finally, a marriage must be solemnized by a judge of a court of record; a public official whose powers include solemnization of marriages; or a religious society, religious institution, or religious organization of the state, according to the rules and customs of the society, institution, or organization.

Legal Requirements for Common Law Marriage

The Commonwealth of Pennsylvania recognizes the concept of common law marriage.

Common law marriage is more informal than ceremonial marriage, and arises from an agreement between the parties to be married to each other, combined with cohabitation and other acts whereby the couple act as husband and wife.

Both parties must have the capacity to enter into the marriage. Both parties must be free to marry, and neither of the parties may be legally married to someone else. If one of the parties is married to another person, a common law marriage cannot exist.

The marriage must be evidenced by words in the present tense uttered for the purpose of establishing the relationship of husband and wife, such as "now we are married". Words in the future tense (i.e., agreeing to enter into the marriage relation some time in the future), even if followed by cohabitation, are not sufficient to establish a common law marriage.

Cohabitation and reputation (holding each other out as husband and wife) do not constitute a legal marriage, but they are evidence from which a legal common law marriage may be found if the circumstances are sufficiently strong and convincing to satisfy a court. Acts such as taking out life insurance polices for each other are also indicative of a common law marriage.

Why does the Commonwealth recognize common law marriage?

One reason that common law marriage is recognized is to protect the widow and children of the relationship, so that when one partner dies, the surviving partner is entitled to inherit the assets of the deceased partner, just the same as if the parties had been married under the more traditional ceremonial manner. Children are also protected, as they are entitled to inherit from parents who were married at common law. The Commonwealth does not want widows and children to be punished, merely because certain formalities were not followed at the time a couple was married.

How did common law marriage get its start?

At the turn of the century common law marriage was a practice that was almost a necessity when the population was scarce and scattered, and ministers or justices of the peace few and far between. Today, far fewer states recognize common law marriage than in the early 1900's, since our society has changed completely, and you can find a minister by driving to one, calling one, or even looking one up on the internet.

When a court makes a judgment as to whether a valid common law marriage exists, it should consider marriages where both parties had a good faith belief that they were formally married, but in fact were not, due to some technical flaw in the license or other paperwork. There are also cases where one spouse truly believed he was formally married, and the other spouse concealed the fact that she was still married to someone else. Finally, there are also cases where both parties knew they did not have a formal marriage, but still believed they had a valid marriage and held themselves out as a married couple.

The information presented on this web site does not constitute legal advice. No attorney-client relationship has been created. Readers are strongly encouraged to contact the firm for professional advice before making any decision of a legal nature. Family Lawyer Service is licensed in the Commonwealth of Pennsylvania.