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Common Law Marriage or Just "Shacking Up?"
for the Recent Developments in the Law

Washburn Law School
June 22, 2001
Common Law Marriage or Just "Shacking Up?"

Professor Nancy G. Maxwell

1. Introduction
   1. The focus of this outline is to examine common law marriage cases decided by the Kansas appellate courts within the last thirty years.
   2. Historically, a common law marriage, "which does not depend for its validity upon any religious or civil ceremony but is created by the consent of the parties as any other contract," was recognized in the ecclesiastical courts of England until 1753, when Parliament enacted the Lord Hardwicke Act.
   3. In 1920, the majority of United States jurisdictions recognized common law marriage. However, state legislatures began abolishing common law marriage because some of the reasons for its existence were no longer present–the country had been settled, providing couples with churches and courthouses in which to solemnize their marriages and the number of immigrants settling the country declined. Currently, Kansas is among a shrinking minority of jurisdictions that recognize some form of common law marriage. These jurisdictions are Alabama, Colorado, District of Columbia, Iowa, Kansas, Montana, New Hampshire (for purposes of property division), Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas and Utah. Interestingly, in 1987 Utah enacted a statute recognizing common law marriage, in certain circumstances.
2. Establishing a Common Law Marriage in Kansas–"The burden of proving a common law or consensual marriage rests upon the party asserting the marriage." Driscoll v. Driscoll, 220 Kan. 225, 552 P.2d 629 (1976).
   1. Capacity to Contract a Valid Marriage
      1. Parties are of sufficient age–12 years old for females and 14 years old for males. In re Pace, 26 Kan. App. 2d 538, 989 P.2d 297 (1999), State v. Sedlack, 246 Kan. 305, 787 P.2d 709 (1990), State v. Johnson, 216 Kan. 445, 523 P.2d 1325 (1975). (A bill introduced in the 2000 Kansas legislative session would have limited the age for contracting a common law marriage to persons 18 years or older. In addition, the bill provided that persons 16 and 17 years of age could contract a common law marriage with parental or judicial consent. This bill did not become law. House Bill No. 2876.)
      2. Parties are not too closely related–Incest Statutes–K.S.A. §§ 23-102, 21-3602, 21-3603. First cousins cannot marry in Kansas, but according to an Attorney General letter, brothers and sisters by adoption can contract a valid marriage in Kansas because they are not "brother and sister of the one half as well as the whole blood." A.G. Letter to the Honorable Frank Yeoman, Jr., May 6, 1996.
      3. Parties have sufficient mental capacity to contract a marriage–"The best accepted test as to whether there is a mental capacity sufficient to contract a valid marriage is whether there is a capacity to understand the nature of the contract and the duties and responsibilities which it creates." "The person is presumed to be competent, but that presumption is overcome if the evidence establishes that the person is incapacitated." In re Estate of Hendrickson, 248 Kan. 72, 805 P.2d 20 (1991).
      4. Parties have no other valid marriage in existence–Bigamy–Kan. Stat. Ann. § 21-3601. In re Marriage of Thomas, 16 Kan. App.2d 511, 825 P.2d 1163 (1992).
      5. Parties are of opposite genders–In re Estate of Gardiner, No. 85, 030 (Kan. Ct. App., May 11, 2001).
   2. Present marriage agreement
      1. The present marriage agreement "need not be in any particular form." In re Estate of Keimig, 215 Kan. 869, 528 P.2d 1228 (1974) (citing Cain v. Cain, 160 Kan. 672, 165 P.2d 933 (1946).
      2. An "agreement to cohabit" is not sufficient. Fleming v. Fleming, 221 Kan. 290, 559 P.2d 329 (1977). "Sporadic cohabitation [is] a kind of liaison short of consensual marriage recognized by law." Driscoll v. Driscoll, 220 Kan. 225, 552 P.2d 629 (1976).
      3. An agreement to marry in the future is not sufficient. "In order to constitute a valid common law marriage there must also be a present marriage agreement rather than an agreement to be married in the future . . ." In re Estate of Keimig, 215 Kan. 869, 528 P.2d 1228 (1974) (citing In re Freedman's Estate, 171 Kan. 211, 231 P.2d 261 (1951)). See also Eaton v. Johnston, 235 Kan. 323, 681 P.2d 606 (1984) and Schrader v. Schrader, 207 Kan. 349, 484 P.2d 1007 (1971).
      4. Behavior that is inconsistent with forming a common law marriage (contracting a subsequently statutory marriage, transferring property as a single person, filing separate income tax returns, having other sexual partners, etc.) may be relevant to whether the parties had a present agreement to be married during the term of the cohabitation. In re Estate of Keimig, 215 Kan. 869, 528 P.2d 1228 (1974), Eaton v. Johnston, 235 Kan. 323, 681 P.2d 606 (1984) and Schrader v. Schrader, 207 Kan. 349, 484 P.2d 1007 (1971).
      5. Testimony of a party, which denies that he or she had a present agreement to be married, is difficult to overcome by the opposing party asserting the existence of a common law marriage. Eaton v. Johnston, 235 Kan. 323, 681 P.2d 606 (1984), Fleming v. Fleming, 221 Kan. 290, 559 P.2d 329 (1977), Driscoll v. Driscoll, 220 Kan. 225, 552 P.2d 629 (1976), Commerce Bank of Kansas City v. Odell, 16 Kan. App.2d 704, 827 P.2d 1205 (1992), but see Schrader v. Schrader, 207 Kan. 349, 484 P.2d 1007 (1971) where both parties asserted a common law marriage and the court, sua sponte, ruled against the existence of a present marriage agreement.
   3. Holding out each other to the public as husband and wife
      1. There is insufficient proof of this element if the couple is holding themselves out as a married couple "only when it was advantageous to assume a marriage posture" or "to avoid embarrassment." State v. Johnson, 216 Kan. 445, 523 P.2d 1325 (1975), Driscoll v. Driscoll, 220 Kan. 225, 552 P.2d 629 (1976).
      2. Facts relevant to proving this element include the woman assuming the man's last name, the filing of joint income tax returns, establishing joint checking accounts, buying personal property as a married couple, registering in hotels as a married couple, introducing each other as a spouse, listing the person as a spouse on insurance and pensions plans, filing as a spouse for social security benefits, living in the same dwelling, having an exclusive monogamous sexual relationship, etc.
3. Analyzing Kansas Case Law
   1. Standard of review on appeal:
      In reviewing the decision of the trial court, this court must accept as true the evidence and all inferences to be drawn therefrom to support the findings of the trial court, and must disregard any conflicting evidence or other inferences that might be drawn therefrom. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.
      In re Estate of Antonopoulos, 268 Kan. 178, 993 P.2d 637 (1999), citing K.S.A. § 60-252(a) and Tucker v. Hugoton Energy Corp., 253 Kan. 373, 855 P.2d 929 (1993)

      In considering whether reversible error was committed in finding that a common law marriage did not exist, several long-standing rules of appellate review are to be taken into account. A district court judgment is presumed valid and will not be set aside absent an affirmative showing of error by the appellant. A finding that a party has not sustained its requisite burden will not be disturbed absent an arbitrary disregard of undisputed evidence. Because of the trial court's advantageous position, the appellate court does not retry disputed factual issues nor pass on the credibility of witness and the weight to be given each piece of testimony.
      Eaton v. Johnston, 235 Kan. 323, 681 P.2d 606 (1984) (citations omitted)

      The trial court did not act arbitrarily in reaching its conclusions. . . . [T]he findings may not be disturbed on appeal. We do not retry disputed factual issues.
      Driscoll v. Driscoll, 220 Kan. 225, 552 P.2d 629 (1976)

      The evidence at trial was conflicting but the trial court resolved the conflict in favor of the appellee . . . . We hold that the court's findings were supported by substantial competent evidence, that the trial court properly applied the rules in the aforementioned cases, that a common-law marriage existed under the laws of the state of Kansas . . . .
      In re Estate of Mazlo, 211 Kan. 217, 505 P.2d 762 (1973)

      The conclusion reached by the trial court that "the parties did not consummate a common law marriage after the divorce of June, 1966" appears to be amply supported by the record. Our invariable rule, repeated to the point of its becoming threadbare, is to the effect that findings made by the trial court will not be overturned on appeal where they are supported by substantial competent evidence.
      Schrader v. Schrader, 207 Kan. 349, 484 P.2d 1007 (1971)

   2. Reversals of trial court decisions are significant–this means the Kansas appellate courts have found an abuse of discretion, or insufficient evidence to support the trial court's finding or have disagreed with the trial court concerning the application of the law in the case. There are two cases that have been reversed in the last thirty years:
      In re Pace, 26 Kan. App. 2d 538, 989 P.2d 297 (1999)–concerning the age of consent Chandler v. Central Oil Corp., Inc., 253 Kan. 50, 853 P.2d 649 (1993)–concerning the validity of a common law marriage when the deceased later statutorily married another woman by applying the presumption of the validity of the last marriage in time.
   3. Facts that must be carefully weighed in determining whether the courts will find a common law marriage:
      1. What type of case is being litigated?
         1. Probate–In re Estate of Antonopoulos, 268 Kan. 178, 993 P.2d 637 (1999), In re Estate of Hendrickson, 248 Kan. 72, 805 P.2d 20 (1991), In re Estate of Keimig, 215 Kan. 869, 528 P.2d 1228 (1974) In re Estate of Mazlo, 211 Kan. 217, 505 P.2d 762 (1973).
         2. Divorce–In re Marriage of Thomas, 16 Kan. App. 2d 511, 825 P.2d 1163 (1992), Eaton v. Johnston, 235 Kan. 323, 681 P.2d 606 (1984) Fleming v. Fleming, 221 Kan. 290, 559 P.2d 329 (1977) Driscoll v. Driscoll, 220 Kan. 225, 552 P.2d 629 (1976).
         3. CINC/Emancipation–In re Pace, 26 Kan. App. 2d 538, 989 P.2d 297 (1999).
         4. Criminal prosecution–Indecent liberties with a child–State v. Sedlack, 246 Kan. 305, 787 P.2d 709 (1990); Marital privilege–State v. Johnson, 216 Kan. 445, 523 P.2d 1325 (1975).
         5. Workers compensation–Chandler v. Central Oil Corp., Inc., 253 Kan. 50, 853 P.2d 649 (1993).
         6. Termination of alimony based on "remarriage"–Fleming v. Fleming, 221 Kan. 290, 559 P.2d 329 (1977).
         7. Homestead exemption–Commerce Bank of Kansas City v. Odell, 16 Kan. App.2d 704, 827 P.2d 1205 (1992).
      2. What are the positions of the contesting parties?
         1. Do both parties agree on the issue of whether a marriage existed?
         2. Who will benefit from a finding of a common law marriage?
         3. What is the testimony of witnesses and what are the witnesses' interests?
      3. What is the effect of the decision on third parties' rights?
      4. What are the countervailing presumptions or legal principles?
         1. The presumption of the validity of the last marriage in time–used in Chandler v. Central Oil Corp., Inc., 253 Kan. 50, 853 P.2d 649 (1993) but ignored in In re Marriage of Thomas, 16 Kan. App. 2d 511, 825 P.2d 1163 (1992) (second marriage was by common law, however) and In re Estate of Keimig, 215 Kan. 869, 528 P.2d 1228 (1974).
         2. The presumption that a person is competent to contract a marriage overrides the burden of proving the element of mental capacity to enter a common law marriage. In re Estate of Hendrickson, 248 Kan. 72, 805 P.2d 20 (1991).
         3. Workers compensation law is not to be used "to determine which of two claimants is entitled to be the surviving spouse of a deceased worker, but whether the surviving spouse of the worker is entitled to workers compensation benefits." Chandler v. Central Oil Corp., Inc., 253 Kan. 50, 853 P.2d 649 (1993) (emphasis added).
         4. "Common law marriages between persons previously divorced from each other have been considered judicially in other states. It is generally held, and we think correctly so, that the same tests and standards used in determining whether persons with no previous matrimonial history have entered into a common law marriage are to be applied to determining whether a common law marriage exists between divorced spouses (see anno. 82 A.L.R.2d 688; also Cable v. Brotherhood of Railroad Trainmen, 150 Kan. 242, 92 P.2d 81)." In re Estate of Keimig, 215 Kan. 869, 528 P.2d 1228 (1974).
4. Conclusion
   Common law marriage remains a viable legal principle; it allows the court to give de jure status to a de facto marriage, if the facts and equities favor this result.

Kansas Common Law Marriage Cases

1. In re Estate of Antonopoulos, 268 Kan. 178, 993 P.2d 637 (1999).
2. In re Pace, 26 Kan. App. 2d 538, 989 P.2d 297 (1999).
3. Chandler v. Central Oil Corp., Inc., 253 Kan. 50, 853 P.2d 649 (1993).
4. Commerce Bank of Kansas City v. Odell, 16 Kan. App.2d 704, 827 P.2d 1205 (1992).
5. In re Marriage of Thomas, 16 Kan. App. 2d 511, 825 P.2d 1163 (1992).
6. In re Estate of Hendrickson, 248 Kan. 72, 805 P.2d 20 (1991).
7. State v. Sedlack, 246 Kan. 305, 787 P.2d 709 (1990).
8. Eaton v. Johnston, 235 Kan. 323, 681 P.2d 606 (1984).
9. Fleming v. Fleming, 221 Kan. 290, 559 P.2d 329 (1977).
10. Driscoll v. Driscoll, 220 Kan. 225, 552 P.2d 629 (1976).
11. State v. Johnson, 216 Kan. 445, 523 P.2d 1325 (1975).
12. In re Estate of Keimig, 215 Kan. 869, 528 P.2d 1228 (1974).
13. In re Estate of Mazlo, 211 Kan. 217, 505 P.2d 762 (1973).
14. Schrader v. Schrader, 207 Kan. 349, 484 P.2d 1007 (1971).
15. Sullivan v. Sullivan, 196 Kan. 1, 439 P.2d 988 (1966).
16. Gillaspie v. E.W. Blair Const. Corp., 192 Kan. 455, 388 P.2d 647 (1964).
17. Hineman v. Hineman, 179 Kan. 543, 297 P.2d 149 (1956).
18. Whetstone v. Whetstone, 178 Kan. 595, 290 P.2d 1022 (1955).
19. Amerine v. Amerine, 178 Kan. 79, 283 P.2d 469 (1955).
20. In re Freedman's Estate, 171 Kan. 211, 231 P.2d 261 (1951).
21. Smith v. Smith, 161 Kan 1, 165 P.2d 221 (1946).
22. Cain v. Cain, 160 Kan. 672, 165 P.2d 933 (1946).
23. Pitney v. Pitney, 151 Kan. 848, 101 P.2d 933 (1940).
24. Cable v. Garbacz, 150 Kan. 242, 92 P.2d 81 (1939).
25. Cooper v. Cooper, 147 Kan. 256, 76 P.2d 867 (1938).
26. Freeman v. Fowler Packing Co., 135 Kan. 378, 11 P.2d 276 (1932).
27. Jacoby v. Jacoby, 132 Kan. 77, 294 P. 857 (1931).
28. Butler v. Butler, 130 Kan. 186, 285 P. 627 (1930).
29. Kinney v. Woodmen of the World, 110 Kan. 323, 203 P. 723 (1922).
30. Haywood v. Nichols, 99 Kan. 138, 160 P. 982 (1916).
31. Tyner v. Schoonover, 79 Kan. 573, 100 P. 478 (1909).
32. Moore v. Wa-me-go, 72 Kan. 169, 83 P. 400 (1905).
33. Schuchart v. Shuchart, 50 L.R.A. 180, 61 Kan. 597, 60 P. 311, 78 Am.St.Rep. 342 (1900).
34. Renfrow v. Renfrow, 60 Kan. 277, 56 P. 534, 72 Am.St.Rep. 350 (1899).
35. Shorten v. Judd, 60 Kan. 73, 55 P. 286 (1898).
36. Matney v. Linn & Matney, 59 Kan. 613, 54 P. 668 (1898).
37. State v. Walker, 36 Kan. 297, 13 P. 279, 59 Am.Rep. 556 (1887).

Miscellaneous Common Law Marriage Articles:

Mary D. Feighny, Common Law Marriage: Civil Contract or "Carnal Commerce" 70 Kan. B. J. 20 (2001)

Nancy G. Maxwell, Can Kansans Live Happily Ever After Without Common Law Marriage?, 20 the Circuit Rider, No. 3 (1981) [accessible at http://classes.washburnlaw.edu/maxw/publications/cankansans.htm

Ariela R. Dubler, Wifely Behavior: A Legal History of Acting Married, 100 Colum. L. Rev. 957 (2000)

John B. Crawley, Is the Honeymoon Over for Common Law Marriage: A Consideration of the Continued Viability of the Common Law Marriage Doctrine, 29 Cumb. L. Rev. 399 (1999)

Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Marriage, 75 Or. L.rev. 709 (1996)

David S. Caudill, Legal Recognition of Unmarried Cohabitation: A Proposal to Update and Reconsider Common-Law Marriage, 49 Tenn. L. Rev. 537 (1982)