I heard a song the other day by Pistol Annies called “Got My Name Changed Back.” The lyrics include the line, “it takes a judge to get married, takes a judge to get divorced.” Well, if you live in Oklahoma, only half of these lyrics is correct. Oklahoma is one of only eleven states that currently recognize common law marriages.
Unlike a traditional marriage, entering into a common law marriage does not require a judge or minister, a marriage license or a marriage certificate. A common law marriage is formed when the minds of the parties meet in consent at the same time. The only requirements are that two people, who are capable of entering into a marriage, agree to become spouses and thereafter maintain the marital relationship.
People often tell me that they have been living with their significant other for so many years, and they ask if that makes them common law married. Typically, if you are simply living together, you probably are not common law married.
Elements of a common law marriage include:
- An actual and mutual agreement to be spouses
- A permanent relationship
- An exclusive relationship
- Cohabitation as spouses
- Holding themselves out to the public as married
The concept of being common law married seems simple enough, yet it is a highly litigated area in divorce and probate matters. You never know what piece of evidence will convince a court that a couple is either common law married or not.
To establish the existence or non-existence of a common law marriage, the evidence can include, but is not limited to, tax returns, holiday and anniversary cards, deeds, insurance forms, rings, family holiday pictures, social media posts, name tags and estate planning documents.
Tax returns, in particular, are very helpful pieces of evidence, because whether the parties file as a married couple or as single persons, they are attesting to their marital status to the government under penalty of perjury.
Finally, it is important to know how to dissolve a common law marriage. While Oklahoma recognizes common law marriage, there is no such thing as a common law divorce. If you are common law married, then as the Pistol Annies’ song correctly states, “it takes a judge to get divorced.”