Common-law marriage

Legal-dweeb question: does the Church recognise “common-law” marriages? A Mormon definition of sexual immorality involves the question of “legal” and “lawful” marriage. So, if a couple are married according to “common-law” does this make them “married” in the eyes of the Church, and therefore not “living in sin”? As I understand it, common-law marriage (where you act like a married couple, you talk like a married couple, you live like a married couple, but you have never officially been married in a ceremony) is accepted in 16 states including Utah.

(And in case you are wondering, the missus and I are legally and lawfully married according to English law! I was just reading about common-law marriage in America, and being the inquisitive chap that I am, wondered what the Church has to say on the subject, if anything.)

Comments

  1. Interesting question–I have no idea. I know that in Kenya, common-law marriage is both legal and lawful. Other lawful forms are traditional marriage (as authorized by custom of the community, usually including bride-price), court marriage, and church marriage. Common-law is the only form that is not very expensive, so most couples start there, but if funds become available, might have a church wedding or exchange whatever bride-price is expected by the community in addition later on.

    I suspect that the Chruch would ask new converts to have a church wedding so that the paper-work is available, and of course, the branch president could perform the wedding for free.

    I know that new converts there are asked to divorce second, third, or fourth wives before baptism.

  2. ESO,

    new converts there are asked to divorce second, third, or fourth wives before baptism

    What do other Christian churches do in these cases? (If men are allowed to be polygamous and still retain fellowship in their church then the irony is too delicious for words!)

  3. In South Africa we always had the ask the question. Polygamy was not common but not unheard off amongst the Xhosa people Our policy was no poly marriages if you wanted to get baptized. The other Christian Churches made compromises with Polygamy and you could be a member if you were a polygamous. Most of the Christian Xhosa were Anglicans, Presbyterians, or Methodists.

    I ahve brought this up with by non LDS friends here in the bible belt and they are surprised that their denominations accept polygamy in Africa and 1-3 times a year they will have a Mormon Cult speaker come in and a major focus will be on Polygamy. The Ironies….

  4. I don’t think that the Church recognizes Common Law marriages. In Guatemala it’s nearly impossible to get a divorce. Therefore missionaries will stop teaching a couple that is married to other people but living a “common law” marriage (even if it’s been going on for 25 years) because there’s virtually no chance they will be able to get the couple divorced. The Church’s stance was that they needed to get a divorce or they were considered living in sin.

    (As luck would have it, I worked with three different couples that we helped them get divorces, get married and get baptized… who knew?)

  5. I believe, though I am not certain, that the Baptismal Rec. form has a space for “marriage date” which must be filled out if a married couple is to be baptized. This would be hard to do with common-law marriage. Again, I may be off on this one–I haven’t seen a baptismal form for a while.

  6. I don’t profess to know the answer, but I don’t think Rusty necessarily has it right. The Church will not recognize a subsequent common-law marriage if you are still legally married to someone else, but it won’t recognize any other type of marriage under those circumstances either.

    My instinct is to say that the church will recognize common-law marriages as legal and lawful marriages, but I have nothing specific to point to.

  7. You know that a “Common Law” Marriage is more than just living together for a certain period of time. In most states in the US, CL Marriage is a statutory construction that requires certain elements to be met, such as living together for a certain period of time (Several years), holding out as husband and wife, commingling of assets, and often purchase of real property together. Some states (such as Oregon, IIRC) do not recognize Common law marriage.
    Its purpose in the US is mainly to protect assets upon separation death etc, and fills in an equitable gap in the law.
    Having a continuing marriage to another person pretty much nullifies the CL Marriage.

    I would think that the circumstances of the church recognizing a CL marriage would be very limited. While I had one of these situations occur on my mission it was pretty uncommon. Also, to overcome this, the couple would simply have to be married.

  8. I can’t speak for the church, but in my mission the answer was a definite no. In fact, even if they did have a formal wedding in a church, they still had to be legally married. And if they no longer had their birth certificates with them, a legal marriage could sometimes be a long, difficult process.

    We’ve had this discussion before at T&S, but I’ll say it again, I think it’s really sad to see a family with wedding pictures in their living room not be able to get baptized because they weren’t married. I understand the reasons behind the rule, but it’s still sad. I think the solution may just be to petition these governments to make marriage and divorce easier.

  9. Capt Jack says:

    That’s funny about Guatemala, because in Argentina from 1985-87 we baptized common-law couples where one or both of the partners was married to someone else. If they were living together and neither had a legal spouse, then they had to be married civilly.

    This was before Argentina passed their most recent divorce law in 1987; that didn’t go into effect until after I left, so I’m not sure what the missionaries did then. The only prohibition was that they couldn’t go to the temple to get their endowments or be sealed.

  10. I think the solution may just be to petition these governments to make marriage and divorce easier.

    I don’t think most people realize how difficult and how many hoops one must jump through in order to get divorced or married or both.

    Wasn’t divorce in Chile illegal until a few years ago? I believe the Church handled this in a unique manner, though I don’t know the specifics. Hopefully someone that served there will comment.

  11. Capt Jack says:

    As someone who was married in Chile, at the Registro Civil, I can tell you that divorce was legal in Chile until last year.

    I’m not sure how the church handled it; my wife swears that couples living together couldn’t be baptized, while other RMs have told me that a rule similiar to that in Argentina was applied: if they’d lived together for a number of years and were obviously a long-term couple, they could get baptized.

    There was a work-around to Chile’s no-divorce law that wealthier people used. They had one of the witnesses put down a wrong address or otherwise furnish some innocous bit of bad information to the Civil Registry.

    If after a while they decided to call it quits, they got a lawyer and petitioned the courts for an annullment on the grounds that the marriage wasn’t valid because of the bad information.

    It usually cost a couple grand, and wasn’t within the reach of everyone, not to mention that it left any children from the marriage with no claim on their father for support, but it was done.

    Another trick used by poor people was to declare their spouse legally dead. This was very effective particularly when one of them had run away, abandoning the family. The “dead” spouse usually doesn’t learn of his/her death until they go and apply for government assistance of some sort. They then learn they’re dead, and anyone who knows about Latin American bureaucracy will tell you that by the time they get it fixed they probably will be.

  12. Capt Jack says:

    First paragraph should be “was NOT legal in Chile.”

  13. I can’t speak regarding the current policy, but the 1977 biography of Spencer W. Kimball notes that he helped establish a policy after touring South American missions in 1959.

    “In light of the Church’s generally strong opposition to divorce, Elder Kimball faced a puzzling question. In the Catholic countries divorce could not be obtained. As a result an innocent person, whose marriage had been destroyed, could not legally remarry. Some set up new households without legal sanction. Though the arrangement fell technically outside the law, the officials were completely unconcerned. When such people wished to join the Church the missionaries would not baptize them, since technically they lived in adultery.

    Three years before, one of the General Authorities had authorized baptism of one such couple. Elder Kimball helped to establish as Church policy that such couples could be baptized if they showed that they had done what they could to legalize their relationship, had been faithful to one another, had met responsibility to their previous family, and had conformed to the expectations of custom” (Edward L. Kimball and Andrew E. Kimball, Jr., Spencer W. Kimball: Twelfth President of The Church of Jesus Christ of Latter-day Saints, (Salt Lake City: Bookcraft, 1977): 316).

  14. My daughter returned from a mission in Argentina last spring. Couples living together had to be married before being baptized, no matter how long they had lived together or how many children they had.

  15. Going back to Jay S, I really don’t think our experiences in Latin America have anything to do with Ronan’s question. When I was in Brazil, only a civil marriage was a legal marriage under the laws of Brazil, so if a couple had been married in a church but not civilly, we couldn’t baptize them.

    Certain U.S. states have common-law marriage laws. I know very little about them, but if you’ve met the state’s requirements in terms of living together, etc., you are legally married under the laws of that state.

    I have no idea what the Church’s view of such marriages is, but I would be surprised if they weren’t honored for baptismal, etc., purposes. However, if a couple lives together for 20 years in a state without common-law marriage, I have no doubt that no marriage would be recognized, even if the bordering state has such marriage.

  16. Just to correct a factual misrepresentation about common law marriage, no state requires a certain amount of time in order for a couple to be “common law” married. Most modern courts require present intent to be married, “holding out” as married, and cohabitation. Holding out COULD include buying property together, but it may be as simple as telling all your friends that you are married. And in the US, common law marriage really IS marriage…for example you have to get a real divorce to break up the marriage.

  17. Lyndsey – I apologize if my post was a general gloss. Traditionally a certain period of time was required to establish a CL marriage. 7 Years if If I remember correctly. Currently Common law marriage is only recognized in 15 states & the district of columbia

    Alabama
    Colorado
    District of Columbia
    Georgia (if created before 1/97)
    Idaho (if created before 1/96)
    Iowa
    Kansas
    Montana
    New Hampshire (for inheritance purposes only, DOES require 3 year period)
    Ohio (if created before 10/91)
    Oklahoma (possibly only if created before 11/1/98. Oklahoma’s laws and court decisions may be in conflict about whether common law marriages formed in that state after 11/1/98 will be recognized.)
    Pennsylvania (if created before 9/03)
    Rhode Island
    South Carolina
    Texas (not recognized unless proceeding brought within two years of end of relationship)
    Utah

  18. Just to correct a factual misrepresentation about common law marriage, no state requires a certain amount of time in order for a couple to be “common law” married.

    I like statements that can been proven true or false.

    Cohabitation, etc. – Persons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for the period of 3 years, and until the decease of one of them, shall thereafter be deemed to have been legally married.

    New Hamphire Revised Statutes, § 457:59 (emphasis added).

    This is why lawyers learn to speak in heavily caveated language, using words like “most” and “generally.” You were more right than you were wrong, though. In most jurisdictions, there is no time requirement.

  19. Here’s a page that summarizes the rules: Common Law Marriage Fact Sheet. In most of the states where common-law marriage is recognized, all you have to do is move in together and tell everyone you’re married, and you are. I have no reason to believe such a marriage wouldn’t be recognized by the Church. After all, it is a legal, lawful marriage recognized by the state.

  20. They should pass this around in singles wards so people could test relationships and this way they wouldn’t be breaking the law of chastity.

  21. Ha ha! Betty, that’s a funny idea. But if you just want to test a relationship out, why not go down to City Hall and sign a piece of paper? What’s the difference really? (Esp. if common-law marriages require a legal divorce).
    DH and I got married in Ecuador. Our marriage certificate was on a piece of newsprint (which we subsequently lost and that’s a whole other nightmare). We came back to the US and told everyone we were married, but no official agency ever wanted any proof of such. For a really long time we wondered if we were really married or just having a good time!! Woo-hoo!

  22. My friend married a man in Argentina (temple marriage) 10 years ago. They have lived here for years, but a couple years ago immigration informed them that in the U.S. they weren’t legally married. Apparently, they hadn’t gotten the proper “stamp” from the proper office in Argentina for the marriage certificate to be valid internationally. So, they had to call up the bishop and ask him if he’d marry them. They had a quickie little marriage ceremony with their three kids present.
    They told us about it months later. Fun little story to tell.

  23. Just saying it’s a good alternative. The more choices, the merrier. It’s not good for man to be alone, and if common-law marriage is okay with the Church, why not give singles the option? Gay or straight?

  24. Woah, JKS. Maybe we really aren’t married (although we’re both Americans so I don’t know if that makes a difference). Now this will be an interesting turn of events, and a great story to tell the kids! LOL!

  25. I do think this is a great idea to expose to singles in the church who for one reason or another don’t or can’t marry but want to be in relationships. It should be more widely known that these kinds of arrangements are accepted in the Church.

    In the same way in which “civil marriage” is considered a “lesser law” since some cannot attain a “temple marriage” due to a variety of factors, common law marriage is even a more relatxed form of “civil marriage” that members are allowed to participate in without breaching the law of chastity.

    I think a notice about this should go up on every singles’ ward notice board. I’ll start with mine!

  26. Sorry, Betty, Remember, where common-law marriage is legal in the US, it is still marriage! And you have to get divorced should you wish to move on.

  27. Well, that is true, but you have to live together first for a period of time, don’t you? If they don’t actually get civilly married and/or don’t divorce after a couple years, it’s no sin b/c they honestly tried at a (common-law) marriage–no more sin than a regular marriage that fails

  28. John Mansfield says:

    It’s timely that Ronan posted this on the 300th birthday of Deborah Read’s common-law husband.

  29. In Old Testament times, a legal marriage usually saw one or more of the formal marriage trappings, bride price, contract, etc. But the minimum requirement to be legally married was simply “intent.”

  30. richard c says:

    In reference to plural marriages in Kenya, requiring a male convert to divorce his second, third, or -and fourth wives before baptism, that seems unfair. Why not divorce the first, third, and fourth and keep the second because she is hot, man!?
    And on the subject: If common law marriage can be recorded by a state officially (on the books) wouldnt that be enough?

  31. It should be more widely known that these kinds of arrangements are accepted in the Church

    I know that in high school I was taught that in the state of Arizona, a common law marriage isn’t in effect until the couple has been meeting certain requirements(ie cohabitating, mixed property etc) for eight years. So according to my understanding of church doctrine that would be 8 years of sin, which isn’t exactly accepted in the church. Doing this kind of thing in the US seems like an attempt to fly under the radar. It reminds me of stories I heard about kids who would get married in Las Vegas for the weekend, then get it annulled and claim that the sex they had that weekend was perfectly acceptable. It just doesn’t feel right.

  32. In the same way that people married “civilly” only take the steps towards temple marriage, people who are common-law married can lawfully wait their turn to be considered common-law (8 in some places, fewer years in other places). The intent is there and they’re on their way to legally being considered married. What’s the big deal?

  33. And I’d much rather be common-law married than be married by Elvis in a drive-though chapel to someone I dated for six months. Why is the second marriage any more “holy” than a common-law one?

  34. Texas (not recognized unless proceeding brought within two years of end of relationship)

    I’d check the more recent Texas Family Code.

    Just FYI

  35. Betty

    A common law marriage isn’t considered a marriage until it is one. no trial period. Second the CL marriage isn’t recognized in all states, and the application of a CL marriage doesn’t allways apply to other states. Some states that have CL marriage, only apply them for inheritence and distribution of assets.

    As far as the church goes, it needs to have some proof of marriage (ie application with the court for recognition of marriage). There needs to be binding ties before it is a marriage. A self proclaimed CL marriage would probably not be enough.

    Stephen, I will defer to your understanding of the Texas Civil Code. I just did a quickie findlaw search, as I had allready spent my .1 composing the reply. Plus here in Nevada, we have a code, but don’t always follow it, we like to think of jurisprudence as more of a guideline than a rule.

  36. Ronan–other Christian churches in Kenya vary as to their acceptance of polygamy. Those with international branches, the Anglican and Catholic, of course officially frown on polygamy. For Catholics, a man can only marry one person in the church and if he marries again, he will not be able to take communion, nor will his second wife. That said, polygamy is very much a function of wealth, so most of the powerful men in Kenya have plural wives (including all three of their presidents so far) and no one seems to think it is an issue that they are not in good standing with their church. Their financial contributions are still accepted and they often exercise considerable influence over their congregations. [It is also not unheard of or at all odd that Catholic preists and nuns have sexual relationships–I guess it is just understood]

    Richard C–it is my understanding that the man wishing to be baptized need not settle for wife #1, but just needs to divorce excess wives. He could choose to divorce #1 and #2 and stick with #3. My guess is that the missionaries would steer him toward whichever wife was most likely to join the Church.

  37. Common-law marraige is outdated. It made sense in the early days of this country. It was a carryover from English Common Law of 900 years ago. At the time, marriage by clergy was the exception rather than the rule. Most marriages were declared before the local Lord, who determined that the couple were within the law (not married to anyone else). The Lord had no authority to perform marriage, but he could accept the marriage declaration.

    The practice was retained following the advent of Protestantism to prevent the conflicts which came from marriage across religious lines. The Roman Catholic Church didn’t recognize the authority of the various Protestant cults, and one Protestant cult might not recognize the ordinances of another as being valid. None would perform interfaith marriages — both man and woman had to be members of the same faith in order to be married in a church or chapel. Marriage under common law permitted a couple from different faiths to become husband and wife, while allowing the priests and preachers to accept the marriage as valid though not performed within the churches.

    In the Colonial period, most indentured servants (that is, limited-time slaves) were not permitted to marry in church without permission from their employers, but could not be denied their rights under common law. The frontier period also brought a number of men travelling the country claiming to be ministers, yet with no authority under law to perform the marriages that they were paid for. A husband and wife might discover their “church” marriage false, but under common law they were still married, and thus their children were legitimate.

    Today, common law marriage is no longer needed. Marriage under law is readily and cheaply available.

    As far as telling your singles wards about common-law marriage, consider what used to be called the “BYU Turnaround,” where a couple would drive from Provo to Nevada on a long weekend, marry on arrival, have their honeymoon, then apply for annulment at the end of the weekend. While they were lawfully married, they were not LEGITIMATELY married, because they intended from the beginning to cancel the marriage. It is the spirit of his law which the Lord expects us to follow, not merely the letter.

  38. Well, if the letter and the spirit of the law are expected to be followed, it’s interesting that the Church DOES allow couples to live together without being civilly married.

  39. didn’t finish my thought…

    Especially since the common-law marriage assumes that people are living together without being civilly married and sealed as a married couple. The Church rewards certain unmarried couples who are living together without being married and punishes others. some people are excommunicated for it and others are welcomed into the Church and temples. Sometimes it has absolutely nothing to do with the “spirit of the law.” I knew a woman in a former branch who was YW president and living with her bf.

  40. “The Church” in this case means local authorities, and probably just the Bishop or Branch President. A lot of things happen at the low level which aren’t a good reflection on the Church as a whole (I could tell a tale . . .).

    However, I’ve long since decided that what seems to be an irregularity to me is generally none of my business. It’s between those involved and the Lord, and unless I’m one of those, or called to sit on a council dealing with the matter, or made perfect thus able to judge all imperfection, I have to assume that I don’t know everything about it and let it go at that.

  41. Question for everyone. A man and his wife were seperated but not legally. They both never divorced each other. He is now living with a woman in a State which recognizes common law marriage. They have no kids together. If he wants to leave that relationship would he be held accountable under the common law statue since he is still married to his wife?

  42. sonia — If that is a real-life situation, then get a lawyer in the common-law state to help.

    Remember, to be common-law spouses, a couple must represent themselves as married, not merely live together. If they don’t get mail as Mr. & Mrs. Smith, didn’t sign as lease or mortgage as Husband and Wife, don’t file federal income taxes as “Married”, or other things like that, then common-law marriage provisions probably do not apply.

    Now, to our hypothetical situation, where they act married in a common-law state. Now, he presumably knows that the divorce has not been granted, and therefore that he is not legally free to remarry, yet. Since he is not eligible to marry, he cannot do so. If she also knows this, then she’s taking her chances, and is unlikely to get any help from the courts.

    If she doesn’t know that he’s still married to the first woman, then she might be able to get relief under “Putative Spouse” laws, which protect folks who honestly believe they are married, but in legal fact, are not. (Note that the bigamist would NOT be able to claim any rights as a putative spouse, b/c he knows that he is not legally married to the second woman.)

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