Cohabitation and Common-Law Marriage

Marriage is an important institution to the Church. It figures centrally into the definition of keeping the Law of Chastity, and healthy, strong family relationships figure centrally into God’s plan for His children. But the exigencies of complying with legal standards and bureaucratic qualifications can make this difficult, even for those who wish to marry. This is particularly the case for Church members and prospective Church members in many parts of the world outside of the US.

Missionaries often face the problems associated with teaching the gospel to receptive, humble people who turn out, for any number of reasons, not to be legally married. Many of them have been living together in committed, monogamous relationships for years, raising children, and functioning like normal, married couples, but did not technically ever marry. Depending on the laws of the country in question, and (sometimes) depending on the disposition of the Mission President and/or Area Presidency, a variety of policies are implemented to deal with the problems raised by such situations. I have a friend with two sons who both served in South American missions with similar demographic and legal circumstances, but where the Mission Presidents pursued very different policies. In one mission (where the usual reason for the non-marriages was the lack of legal documentation — birth certificates or citizenship papers — required to get a marriage license), the policy was that cohabitating couples could not be baptized until they legally married. In another, if official marriage was not realistic for bureaucratic reasons but the couple had been together for an extended period, the MP recognized the “common-law” status of their marriage and allowed them to be baptized.

Thus, while it appears that the technical policy of the Church is no baptisms, period, for cohabitating couples, interpretation of that rule and how the concept of common-law marriage does or does not apply to its implementation seems to be the purview of leaders at a more local level.

The policy in my mission was to go ahead and baptize couples who had been cohabitating long enough (5 years, I think) for it to be considered common law marriage. This was a very, very common problem. The first question we asked was, “are you legally married?”. If no, we were then to ask, “how long have you been living together in a monogamous relationship?”.

One particular situation from my mission stands out to this very day. The missionaries had not been long in the city (one of my duties was to work with government agencies to acquire official state recognition of the Church in the Oblast, so that we could legally proselyte and rent property for conducting Sunday services), but we had found some success working with the friends of the few members already there.

Working with Ivan and Katya was one of the highlights of my mission. This was one of those dynamite couples, fresh-faced, bright, committed — everyone (including the MP) knew he was going to be the first local Branch President. They enthusiastically listened to the discussions and accepted the commitments they entailed — including the commitment to be baptized. After they had been members for about 3 1/2 months, the senior companion of the other companionship in the city (he was the current Branch President) made the sucker-punch realization that Ivan and Katya were not legally married — that Ivan had never bothered to finalize the divorce with his first wife. Ivan and Katya had been living together — unlawfully cohabitating — for nearly 3 years. A long time, to be sure, but not long enough to be covered under the “common-law” loophole. We were devastated that this newly baptized couple (still living together) were living in sin, jeopardizing their temple plans, our BP-calling plans, and possibly their membership. Elder W. and I tortured ourselves over the question for days, fasting and praying, seeking advice from the MP and even the Area President.

We realized that we just needed to suck it up and talk to Ivan like a man, no punches pulled. He needed to take care of his divorce and make an honest woman out of Katya. And they had to put, ahem, certain things on absolute hold until these matters were in order. Elder W. and I went on a split together and went to Ivan and Katya’s house for dinner. After the meal, we asked to speak to Ivan in private (we were too embarassed to talk about it with Katya in the room). It was a very nervous and awkward conversation. At some point, Ivan could see where we were going and got very indignant.

Not that we were suggesting that his relationship with Katya was sinful or that we expected them to stop, ahem, cohabitating. He was offended at the suggestion that they were sleeping together at all.

Turns out, from the time we taught them the LoC in the discussions, Ivan and Katya had begun to sleep in different bedrooms and Ivan had begun the process of finalizing his divorce. He had even proposed and purchased her a ring. They had never mentioned the change in their living circumstances because they were ashamed that they had previously been breaking God’s law. None of us were the wiser, because they were technically still living together. But stopping sleeping together had been treated as a given, without the slightest question. “You guys think I’m an adulterer?!?” was his indignant response. “How stupid do you think I am?”

I was transfered out of the city about a month later, a week after the Church got it’s registration and official state recognition (which Ivan and Katya’s relationship still, alas, did not have). After about another 2 months, the missionaries, branch members, and MP attended Ivan and Katya’s wedding. That was nearly 8 months after they first got the LoC lesson. A month later, I translated as Elder Hancock (the Area President) confered upon Ivan the Melchizedek Priesthood and ordained him and Elder. About 6 months after I returned home, the ZL from the city in question got the MP’s permission to call me at home. He called me to tell me that they had named and blessed Ivan (recently set apart as the Branch President) and Katya’s baby girl that morning at Church.

10 months after the wedding.

Comments

  1. It’s an interesting discussion. However, if the couple answered “no we are not legally married,” they should have at some point in your contact with them held out that they were married. In other words, they should have introduced themselves as husband and wife, and others in the community assumed they were married based on their conduct. If they didn’t do this, they were never married under common law, no matter how long they lived together.

    In any event, common law marriage is almost completely gone in the U.S., so this discussion may be moot. Utah, however, still has it.

  2. Mark IV says:

    Rob,

    I think the main point here is that the prevailing situation in the U.S. doesn’t apply in many parts of the world where the church is growing. The question is far from being moot, our missionaries deal with it literally every day.

    I love stories like this. People who embrace the gospel, as this couple did, are solid gold. Thanks, Brad.

  3. Amazing story, Brad. I had a couple of similar experiences on my mission with people who had to make major changes in order to be baptized, but this one is particularly touching.

    Thanks for sharing it.

  4. Technically speaking, doesn’t “common law” refer to English common law? Do other traditions have similar provisions for assuming marriage under informal conditions?

    In any case, great story. Better than mine, which involved a Nepalese man and a Philippina woman, in Switzerland. The man had been smuggled into Switzerland as a slave, and had escaped but was hiding because he had no legal status. The woman was an old-time member of the church who remembered being taught that she should not marry a nonmember and so did not, but somehow had never quite understood the law of chastity. It took a lot of work by a lot of people at a lot of agencies, but we got the man legal status on Monday, got the couple married on Tuesday, and got the man baptized on Wednesday. Whew!

  5. sister blah 2 says:

    Wow, an incredible story of faith and sacrifice. Thank you so much for sharing. Brother Blah 2 served in a place where this was a huge issue. Even highly motivated potential converts often lacked the means to get their government paperwork in order (ie birth certificate), so they could get a legal marriage license. BB2 was not allowed to baptize them. It was the source of a lot of anguish.

  6. This reminds me of a tragic case when I served in Brazil where we couldn’t locate the former wife (to get the divorce) for ages. The (new) couple who cohabited had two daughters, one of them eleven or twelve years old. They finally located her, and she refused the divorce (out of spite, I believe). We were still trying to convince her when I left (I say we, but she lived a very long way away, so it was mostly his communications with her).

    This is such a wonderful story, but it brings up the challenge of globalizing a church that was originally based on New England Protestant sentiments (in practice, anyway). So many couples, in Brazil for instance, will live faithfully together for decades without any legal marriage, whereas here a marriage is lucky to last seven years.

  7. Wonderful story….made my day :)

  8. Wonderful story.

  9. Peter LLC says:

    The man had been smuggled into Switzerland as a slave…we got the man legal status on Monday

    Wow, Switzerland is a hard country to stay in legally–did he get asylum-seeker status?

    In Austria one way you used to be able to get legal was to marry a citizen, so we’d often teach immigrants from West Africa and find out that they had two families–one here and the other back home.

  10. Peter, I don’t remember the 30-year-old details — it wasn’t anything remotely like citizenship or even the equivalent of an American green card, but we got him recognized as existing and into the legal/political system so that he had standing to marry. A local member did all that work; we only taught the necessity for marrying before baptism.

    We felt pretty good about it, but it’s nowhere near as inspiring as Brad’s story of Ivan and Katya — you know somebody is converted when he hears a principle and realizes what he needs to do without being told, and then does it.

  11. Great story.

    In Kenya (and I would guess much of Africa), there are four legally recognized forms of marriage:
    church wedding
    court wedding
    traditional wedding (varies by community, but often involves exchanges of goods as “bride price”)
    common law (7 years residing together)

    I have no idea which forms the Church recognizes as not violating LoC. It seems if it is legal to the government, it ought to be legal to the Church (although that is tricky for common law as you would technically be sinning for the first 6 years of the arrangement).

    Anyway, the real issue there is more likely to be excess wives than illegal ones–one spouse is easy enough to normalize.

  12. mapinguari says:

    Like Neal, I recall many difficult experiences in Brazil trying to obtain the required legal recognition of marriage for many, many couples.

    I’ve never quite understood the significance placed on legally recognized marriage as a prerequisite for baptism and other ordinances. Why doesn’t the Church adopt a church-recognized marriage that is less than the temple sealing but that would otherwise qualify one for baptism?

  13. On my mission (Hong Kong) there was a couple who could not get baptised because the husband still had a wife in mainland China. Logistics prevented the divorce until 5 years had passed. Apparently he could not locate his “ex” wife. And going back to look for her was not an option. So he had to file a divorce that would take effect in 5 years unless she contested it. In the meantime they attended church and were very active. Both knew more about the church than some missionaries. He was the only investigator who could discuss the symbolism of the Law of Moses in Gospel Doctrine.

  14. StillConfused says:

    Utah does not have common law marriage.

  15. MikeInWeHo says:

    I thought California still had common law marriage, but may well be wrong. Kaimi?

  16. Colorado does, and it doesn’t take much to make it so… the barebones of it is that the couple has to hold themselves out to the community as married, such that they have a reputation in the community as being married, and cohabitation for merely one night.

  17. StillConfused, Utah does have common law marriage.

  18. I don’t know how accurate it is, but according to Wikipedia, Utah does have common law marriage (along with 10 other states).

  19. Sam B, Yes, Utah does have common law. It’s routinely recognized in the workers comp system for awarding benefits to “spouses”.

  20. Abby,
    I’m agreeing with you–I’m just offering a potential source (with a caveat) of places in the U.S. with common law marriage so those questions don’t need to come up any more.

  21. I’m confused as to why gay marriage “threatens the sanctity of marriage” but common-law marriage doesn’t.

    Just asking.

  22. StillConfused says:

    Please point me to the legal cite for the common law marriage in Utah. It is not recognized for probate, estate planning, alimony, etc. I do not practice in the area of worker’s comp though.

  23. StillConfused says:

    I did look it up and see the discrepancy. A common law marriage still requires a court decree. Hence that is why it doesn’t come up in the probate etc areas because at that point the “spouse” is deceased.

  24. Years ago I took a special institute class by James Baker, who is an attorney in SLC who made an extensive study in Hebrew law. When we were discussing marriage law, he said that in Old Testament times there were three legal requirements — money (bride price, dowry, gifts), contract and consummation. But not every marriage would require all three elements. According to Baker, at bare minimum, among the Hebrews the only requirements entirely essential for a legal wedding was intent and consummation.

    Baker said that when he presented the same material to the institute staff, one of them was quite relieved and said, “Oh good, because some of Joseph’s marriages were that type.”

  25. There was a judge on my mission in Mexico that was able to get people divorced from their no-where to be found spouse and married to their spouse they’ve been living in a day. I don’t know how he did it, but he did. He loved Mormon missionaries becasue we provided him with the most business.

  26. BTD Greg says:

    Please point me to the legal cite for the common law marriage in Utah.

    For true common law marriage, wouldn’t someone have to look to–wait for it–the common law?

    Regardless, Texas has the common law marriage rule written into its Family Code. It’s pretty simple, really. A couple only needs to 1) agree to be married; 2) cohabitate for an unspecified period of time; 3) represent to others that they are married (often referred to as “holding out” requirement). It’s remarkably simple, especially when you consider that Texas is also a community property state.

  27. MikeInWeHo says:

    Actually, in California we also have overturnthelaw marriage.

  28. Kevin Barney says:

    I had an experience domestically in Colorado in the
    late 70s. We taught a woman and committed her to
    baptism. She lived with a man, but we just assumed
    they were married. Somehow, perhaps in the interview, it came out that she wasn’t married; they were just living together.

    Now, my mission was a real baptism-a-go-go type
    mission. We weren’t the types to let a committed
    woman go unbaptized over a little thing like marriage.

    The ZLs called the MP. He quizzed them on the
    circumstances of their relationship (they’d lived
    together a long time and had a child together), and
    concluded that their relationship was a common law
    marriage under Colorado law. So he ok’d the baptism.

    But holy hell, did the shite (in my best Ronan voice) ever hit the fan after that. This wasn’t South America, it was Colorado. The local leaders were so mad they couldn’t see straight. In their view, we had baptized someone they very possibly were going to have to turn right around and excommunicate again. They were so pissed about it that the mission closed our area and we were both transferred out of there post haste. I never found out what happened to the woman after that.

    My mission had a real macho, cowboy ethic when it came to baptizing. Dunking people at midnight in the apartment pool complex, stuff like that. We probably would have done baseball baptisms if anyone had thought of it. The almighty baptism statistic was the holy grail, and nothing else mattered. This led to a lot of tension with the locals, the above incident just being a particularly dramatic example.

  29. Jennifer in GA says:

    This is becoming a real problem in my area of the country. Off the top of my head, I can think of three investigator baptisms that *didn’t* happen in my ward because of cohabitation in just the last year or so.

    In one instance, the missionaries were teaching a woman, but not her boyfriend, although he had no problem with her taking the discussions. Even though they had been living together for several years, they had no interest in getting married. So the baptism didn’t happen.

    In another instance, a woman was taking the discussions and wanted to be baptized. She happened to be living with an ex-boyfriend. Even though the she swore up and down the relationship was over, and that they didn’t even really like each other, and money was the only reason they were sharing the apartment, the MP said she couldn’t be baptized until either she or the ex moved out of the one bedroom apartment. So the missionaries went into “wait” mode.

    This went on for six months. She came to church semi-regularly, but usually just for Sacrament (which is our last block). The sister missionaries she had been working with were taken out of the ward for a few weeks (one sister went home, and there wasn’t anyone to replace her until the mext transfer), and the Elders lost track of her.

    A few weeks ago, the Elders found out she had finally moved, and they went to her new apartment. Guess who answered the door? The ex-boyfriend. So for now, the missionaries have kind of just washed their hands of the situation, because there’s nothing they can do about it.

  30. Mark B. says:

    Great story, Brad.

    Ardis (of whom it has been said that we’ll make a lawyer yet) is right about common law marriage arising from the (hold your breath, folks) common law.

    Therefore, Utah and the rest of the United States and Canada and Australia and Kenya and other places probably did at some point recognize common law marriages (and if they no longer recognize them, it’s likely because a statute was passed abolishing them). It seems unlikely that any place known as an Oblast was ever o’blessed with English rule, including the common law.

  31. Brad,
    I was looking forward to your next deconstructionist New Testament installment, but Ivan and Katya made up for it.

  32. Interestingly enough, my current bishop and his wife were in that situation when they first took the missionary discussions. And of course the missionaries had that moment where they were like, oh crap, they’re not married. But when they found out that they needed to be married, they did it right away and then got baptized.

  33. At a certain point in the early church, Joseph and members decided that civil marriages were meaningless and everyone needed to be married by priesthood authority. There were lots of instances where a convert (everyone was a convert) would have joined the Saints and left a non-converted spouse behind. They may have been legally married, but the church would set those marriages aside as non-authoritative and allow people to marry someone else in the church (legally bigamy). It sounds like Kevin Barney’s mission president was channeling that spirit of the early church.

  34. My own feeling is that marriage is fundamentally a familial institution. Both Church and State are johnnies-come-lately to the marriage game, intruding into and usurping a familial function.

    So-called “co-habitating” couple are married, regardless of whether there is a common law marriage law on the books. Familial marriage is marriage. That marriage can be blessed by a church, whereupon it’s also a church or temple marriage, and it can be recognized by the state, making it a civil marriage. However, whether or not it is also a civil or a church marriage, it is still marriage.

  35. On my mission, we taught an older couple (75+) who had been living together for years. The MP was unyielding on the marriage requirement, but it was extremely difficult to make this happen since it required a certified copy of a birth certificate that was in another Mexican state and another mission. The Church might have lost out on one of its best members if it weren’t for a member of a bishopric working in the mayor’s office at city hall.

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