Posts Tagged common law
By Attorney David Engler
In my practice, I have had the opportunity to represent about 8 people of the Muslim faith seeking a divorce. Most of these have been women and the rule in almost all marriages … it is the husband that causes the problem but the wife files for divorce. Like usual, I am always left wondering how in the heck did some guy get a beautiful educated woman willing to take care of him, get away. Bad judgement is consistent across all faiths. There have even been a couple of instances where I have been hired specifically to meet with the husband and talk some sense into his head.
Sharia law is given by God to provide guidelines and rules for much of the personal life and conduct of the Muslim. The concept of love and responsibility and respect for each other is found in Sharia. In America we develop an instant bias against anything Muslim given much of our knowledge comes from CNN news clips or political rants by anti-immigration crowd. Our law comes down from our representative bodies and the judges who interpret the law through cases. We rely on the courts and lawyers to help straighten out a messy divorce In Sharia the plaintiffs and defendants usually represent themselves. But the concepts of marriage and divorce in Sharia law mirror our U.S. Courts, so the effects of a Sharia Law marriage can largely be enforced in an American divorce court.
A marriage can be terminated by the husband in the ‘talaq’ process, or by the wife seeking divorce through ‘khul’. Under ‘faskh’, a marriage may be annulled or terminated by the ‘qadi’ judge.
Men have the right of unilateral divorce under classical Sharia. A Sunni Muslim divorce is effective when the man tells his wife that he is divorcing her, however a Shia divorce also requires four witnesses. Upon divorce, the husband must pay the wife any delayed component of the dower. The American lawyer should introduce the Sharia marriage contract as evidence that this gift should be enforced during the temporary orders or as part of a property division.
If a man divorces his wife in this manner three times, he may not re-marry her unless she first marries, and is subsequently divorced from, another man. Only then, and only if the divorce from the second husband is not intended as a means to re-marry her first husband, may the first husband and the woman re-marry.[Qur’an 2:230] A woman may not remarry for 5 months after a divorce to protect the proper lineage of children. In our courts we ask women of all ages before granting the divorce, “are you now pregnant.”. So often the name of the former husband appears on a birth certificate because the woman became pregnant during the marriage but not by the husband. It is interesting in Sharia law that this issue is dealt with by prohibiting marriage for five months after the divorce.
‘Mahr’ or dowry is a beautiful concept. It is security for the woman even if it is more in a symbolic sense. The bridegroom makes a gift of value that takes the form of a contract. The gift can be jewelry, money, a car or other items of value. Like our common law practice a gift like an engagement ring cannot be taken back because the marriage did not last.
At a Muslim marriage there is a point where the bride leaves to become part of the groom’s family. This can be a very touching moment because the daughter is now literally part of a new family. This does not mean she is subservient to this new family, just that the responsibility for her care belongs to the groom’s family. The modern reality is that Muslim women in America are career-oriented, well-educated and can usually take care of themselves. But once again the American lawyer should become familiar with Sharia law and consider calling an Imam, or cleric, to speak to as an expert as to what was considered as the parties entered the marriage contract.
In our temporary hearing orders or in determining an appropriate spousal support, the law provides that the understanding of the parties is appropriate evidence. It is also important to determine if the wife has sacrificed her income to support the husband’s education or stayed at home to raise children. Likewise it makes sense to introduce the Sharia marriage contract and cultural customs that form the basis of what the parties intended.
The fact that a marriage was arranged has no impact on a division of assets or spousal support award. It might even mean more in support if the court understands that it was the understanding that the woman truly was to be part of this new family and left so much behind. As a father of two young daughters (21 and 23) I definitely believe I could make a better choice of their mates than they could. I and their mother have more life experiences to draw upon and know what mistakes to avoid. So I do not look poorly upon arranged marriages even though my children can only be subjected to my gentle persuasion. If I push too much I will be tuned out. So it is interesting to note that in Muslim divorces it is not the fact of an arranged marriage that is at the root of the divorce. It is the usual suspects of lack of respect, infidelity, money problems and immaturity of thought.
My exposure to Sharia law and my Muslim clients has been one of the most positive in my career. There is little deceit and a great sense of honor that makes it easier to do my job.
By Attorney David Engler
This is a type of case that I am doing less and less of because it was outlawed back in 1991 in Ohio. So in order to have a common law marriage you would have to claim to be married for at least 20 years and now want a divorce. It still happens and then we use all sorts of ways of proving that the couple acted like they were married.
My favorite story was of a public office holder who thought he would be sharp and say that he was never really married to his wife of 25 years. The problem he had was that he had always listed her on the state paid health insurance as his wife and the local prosecutor was starting to investigate the office holder for theft in office. He changed his opinion and agreed he was married.
To be defined as a common-law marriage within the states that allow it, the two people must: 1) agree that they are married, 2) live together, and 3) present themselves as husband and wife.
Common-law marriage is generally a non-ceremonial relationship that requires “a positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, cohabitation sufficient to warrant a fulfillment of necessary relationship of man and wife, and an assumption of marital duties and obligations.” Black’s Law Dictionary 277 (6th ed. 1990).
Before modern domestic relations statutes, couples became married by a variety of means that developed from custom. These became the elements of a “common-law marriage,” or a marriage that arose through the couple’s conduct, instead of through a ceremony. In many ways, the theory of common-law marriage is one of estoppel – meaning that couples who have told the world they are married should not be allowed to claim they aren’t, when in a dispute between themselves.
Currently, only nine states (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma and Texas) and the District of Columbia recognize common-law marriages. In addition, five states have “grandfathered” common-law marriage (Georgia, Idaho, Ohio, Oklahoma and Pennsylvania) allowing those established before a certain date to be recognized. New Hampshire recognizes common-law marriage for purposes of probate only, and Utah recognizes common-law marriages only if they have been validated by a court or administrative order.
Common Law Marriage States:
District of Columbia
Iowa (Iowa Code Ann. §. 595.11)
Montana (Mont. Code Ann. § 26-1-602, 40-1-403)
Oklahoma (Okla. Stat. Ann. tit. 43, § 1)
Pennsylvania (23 Penn. Cons. Stat. § 1103)
Texas (Tex. Fam. Code Ann. § 2.401)
Utah (Utah Code Ann.§ 30-1-4.5)
Georgia: Only for common-law marriages formed before January 1, 1997 (1996 Georgia Act 1021).
Idaho: Only for common-law marriages formed before January 1, 1996 (Idaho Code § 32-201).
Kansas: law prohibits recognition of common law marriage if either party is under 18 years of age. (2002 Kan. Sess. Laws, SB 486, §23-101).
New Hampshire: Common law marriages effective only at death. (N.H. Rev. Stat. Ann § 457:39).
Ohio: Only for common-law marriages formed before October 10, 1991 (Lyons v. Lyons 621 N.E. 2d 718 (Ohio App. 1993)).
Oklahoma: Only for common-law marriage formed before November 1, 1998. (1998 Okla. SB 1076).
Pennsylvania: law was amended to read “No common-law marriage contracted after January 1, 2005 shall be valid.” (Pennsylvania Statues, Section 1103)
Texas: calls it an “informal marriage,” rather than a common-law marriage. Under § 2.401 of the Texas Family Code, an informal marriage can be established either by declaration (registering at the county courthouse without having a ceremony), or by meeting a three-prong test showing evidence of (1) an agreement to be married; (2) cohabitation in Texas; and (3) representation to others that the parties are married. A 1995 update adds an evidentiary presumption that there was no marriage if no suit for proof of marriage is filed within two years of the date the parties separated and ceased living together.
Utah: Administrative order establishes that it arises out of a contract between two consenting parties who: (a) are capable of giving consent; (b) are legally capable of entering a solemnized marriage; (c) have cohabited; (d) mutually assume marital rights, duties, and obligations; and (e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife. The determination or establishment of such a marriage must occur during the relationship or within one year following the termination of that relationship.
Because the doctrine of common-law marriage developed before the advent of modern domestic relations statutes, in some states the law exists in case law rather than legislation. (For example: Piel v. Brown, 361 So. 2d 90, 93 (Ala. 1978); Deter v. Deter, 484 P.2d 805, 806 (Colo. Ct. App. 1971); Johnson v. Young, 372 A.2d 992, 994 (D.C. 1977); Smith v. Smith, 161 Kan. 1, 3, 165 P.2d 593, 594 (1946); Sardonis v. Sardonis, 106 R.I. 469, 472, 261 A.2d 22, 23 (1970); Johnson v. Johnson, 235 S.C. 542, 550, 112 S.E.2d 647, 651 (1960)).
Tennessee has employed a doctrine of “estoppel to deny marriage.” See Note, Informal Marriages in Tennessee – Marriage by Estoppel, by Prescription and by Ratification, 3 VAND. L. REV. 610, 614-15 (1950).
Many states have abolished common-law marriage by statute, because common-law marriage was seen as encouraging fraud and condoning vice, debasing conventional marriage, and as no longer necessary with increased access to clergy and justices of the peace. (For example: Cal. Civ. Code § 4100; N.Y. Dom. Rel. Law § 11 ; Furth v. Furth, 133 S.W. 1037, 1038-39 (Ark. 1911); Owens v. Bentley, 14 A.2d 391, 393 (Del. Super. 1940); Milford v. Worcester, 7 Mass. 48 (1910)).
Among those states that permit a common-law marriage to be contracted, the elements of a common-law marriage vary slightly from state to state. The indispensable elements are (1) cohabitation and (2) “holding out.” “Holding out” means that the couple tells the world that they are husband and wife through their conduct, such as the woman’s assumption of the man’s surname, filing a joint federal income tax return, etc. This means that mere cohabitation cannot, by itself, rise to the level of constituting a marriage. Of course, many disputes arise when facts (such as intentions of the parties or statements made to third parties) are in controversy.
The U.S. Constitution requires every state to accord “full faith and credit” to the laws of its sister states. Thus, a common-law marriage that is validly contracted in a state where such marriages are legal will be valid even in states where such marriages cannot be contracted and may be contrary to public policy.
There is no such thing as common-law divorce. Once parties are married, regardless of the manner in which their marriage is contracted, they can only be divorced by appropriate means in the place where they ask for the divorce. That means, in all 50 states, only by a court order.