Oklahoma is one of only 10 states that still recognizes common- law marriage with no time or other restrictions and Rep. Kevin Calvey, R-Del City, believes the concept has outlived its frontier- era usefulness.
The District of Columbia also recognizes the concept. Georgia, Idaho and Ohio do so as well, but only for commitments entered into before a certain date. New Hampshire acknowledges common-law marriage only in probate cases.
In general, to be defined as a common-law marriage, the two parties must agree that they are married, live together and hold themselves out as married.
Calvey, an attorney, said that these criteria present special problems of proof, and can be problematical when an individual pops up during a probate or other proceeding as a supposed spouse.
The situation, it seems to me, is wide open for fraud, he said.
Calvey also sees some moral problems with the idea.
Are we legitimizing 'shacking up?' he asked. Does that mean we are encouraging that?
Oklahoma City attorney Jay Israel said that he has seen the common-law marriage concept cause many problems.
I think the issue is legal certainty, he said. It creates a legal morass for all parties involved. Without common-law marriage, I think there would be a lot less litigation and a lot more certainty.
In addition to probate cases, Israel said that allegations of a common-law marriage can cause problems with Social Security and insurance benefits.
He recommended that any changes in the law be made prospective in nature, noting that a retroactive law could be deemed an unconstitutional infringement of property rights without due process.
Rep. Russ Roach, D-Tulsa, said that one of the primary motives of those who oppose common-law marriage appears to be moral, to try to change the behavior of others.
Israel said that his motive is purely legal.
I'm not talking about the morals at all, he said.
Rep. Frank Davis, R-Guthrie, an attorney with more than 40 years as a general practitioner, said he has seen many times when the concept of common-law marriage has prevented someone from being harmed, particularly in the area of property.
He told of one married couple who had purchased a house, then divorced, with the wife executing a quit claim deed to the husband. They reconciled and lived together for 10 more years without remarrying. After the husband died, his children by a prior marriage told the widow to vacate the house.
In this situation, Davis said, he was able to prove that the couple had a common-law marriage, which gave the widow a probate homestead in the house. …