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-
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
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
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. …