Common Law Marriage in Pennsylvania
The existence of the judicial doctrine of “common law marriage” has been recognized in Pennsylvania by statute. 23 Pa.C.S.A. Section 1103 (Common-law marriage) provides: “This part shall not be construed to change the existing law with regard to common-law marriage.”
For an online statutory reference and a brief background discussion, see: http://members.aol.com/StatutesPA/23.Cp.11.html Generally, under Pennsylvania law, a marriage may be established either (1) by formal religious or civil ceremony pursuant to a duly issued license, or (2) by common-law marriage. Under judicial decisions, a common law marriage may be established (a) if a man and a woman employ words (either written or oral) in the present tense contracting such a relationship, or (b) by cohabitation and reputation of marriage from which arises a presumption of marriage, in the absence of contrary evidence. In re Vojatovich Estate, 51 D.&.C. 10 (1945). Common-law marriage in Pennsylvania requires that the parties agree to be married. Africa v. Vaughan, 998 F.Supp. 552 (E.D.Pa., 1998). There must be an exchange of words in the present tense by which the couple intends to create the status of marriage. Staudenmayer v. Staudenmayer, 552 Pa. 253, 714 A.2d 1016 (1998). However, the form of the words used does not matter; the intention of the parties cannot be disregarded. Fiedler v. National Tube Co., 161 Pa. Superior Ct. 155, 53 A.2d 821 (1947).
“Common Law Marriage” in Pennsylvania – As of When?
The status of common law marriage in Pennsylvania has been unsettled recently. In 1998, the Pennsylvania Supreme Court reconsidered the doctrine in its decision in Staudenmayer v. Staudenmayer, 552 Pa. 253, 714 A. 2d 1016 (1998). The Court’s opinion raised questions about its desirability, but not its present viability.
Then, on September 17, 2003, the Commonwealth Court of Pennsylvania, in PNC Bank Corporation v. Stamos (Workers’ Compensation Appeal Board), issued a decision purporting to abolish common law marriage in Pennsylvania. But it did so in the context of an administrative law appeal (a workers’ compensation case), not in the context of domestic law. See: http://www.courts.state.pa.us/OpPosting/CWealth/out/860CD02_9-17-03.pdf
It was widely reported to the public that the judicial doctrine of common law marriage was abolished in Pennsylvania, as in a USA Today article published on September 18, 2003. See: http://www.usatoday.com/news/nation/2003-09-18-common-law_x.htm But it wasn’t that simple. The setting of the Stamos appeal, the appellate court that rendered the decision, and the absence of further appeal by the parties to the Pennsylvania Supreme Court all created doubts as to the widespread effect of the decision. For example, Attorney Norma Chase set forth continuing concerns about the status of this doctrine in a letter addressed publicly to the Legislature. See: http://users.pghconnect.com/normac/clmltr.html Various legislation was introduced to address the issue.
Then, to confirm doubts as to the effect of the Stamos decision, on April 28, 2004, the Pennsylvania Superior Court made comments within an issued opinion that questioned the application of the Commonwealth Court’s purported termination of the common law marriage doctrine. In Bell v. Ferraro, 2004 PA Super 144, 849 A.2d 1233, http://www.courts.state.pa.us/OpPosting/Superior/out/a36004_03.pdf, the Superior Court commented on the general state of common law marriage in a footnote:
“We recognize that the Commonwealth Court has purported to prospectively abolish common law marriage in the context of Workers’ Compensation Claims. PNC Bank Corp. v. W.C.A.B., 831 A.2d 1269 (Pa. Cmwlth. 2003). We point out, however, that (1) we are not bound by decisions of the Commonwealth Court, and (2) both this Court and our Supreme Court have declined the invitation to abolish common law marriage, deferring such action to the legislature. See e.g., Staudenmayer v. Staudenmayer, 714 A.2d 1016 (Pa. 1998); Interest of Miller, 448 A.2d 25 (Pa. Super. 1982).”
This statement demonstrated that, judicially, common law marriage in Pennsylvania still could not yet be considered “abolished” in all settings. To add to the confusion, on November 12, 2004, a panel of the same Pennsylvania Superior Court, in the case Stackhouse v. Stackhouse, 2004 Pa. Super. 427, ruled differently. It held that, absent a contrary ruling from our state’s Supreme Court, common pleas trial courts across the state must abide by the Commonwealth Court’s abolishment of the doctrine of common law marriage. See: http://www.aopc.org/OpPosting/Superior/out/s55036_04.pdf
Read this excerpt from the panel’s opinion, and then ask yourself: “What is the status of the doctrine of common law marriage in Pennsylvania in 2004?”
We recognize that this Court has, indeed, expressed its reservations about the precedential effect of the decision in PNC Bank. As Nina argues, in Bell we declined to apply it based on the following observation: We recognize that the Commonwealth Court has purported to prospectively abolish common law marriage in the context of Workers’ Compensation Claims. PNC Bank Corp. v. W.C.A. B., 831 A.2d 1269 (Pa. Cmwlth. 2003). We point out, however, that (1) we are not bound by decisions of the Commonwealth Court, and (2) both this Court and our Supreme Court have declined the invitation to abolish common law marriage, deferring such action to the legislature. See e. g., Staudenmayer, 552 Pa. 253, 714 A.2d 1016 (1998); Interest of Miller, 301 Pa. Super. 511, 448 A.2d 25 (1982). Bell, 849 A.2d at 1234 n. 2. We proceeded accordingly in Bell, applying the legal precepts on which common law marriage is based, concluding in that case that the appellant had failed to adduce sufficient evidence to sustain her claim on the merits. See id. at 1235.
Significantly, our reluctance in Bell to apply the holding in PNC Bank derived substantially from our Supreme Court’s decision in Staudenmayer, supra. In Bell, we summarized the decision in Staudenmayer with the observation that the Supreme Court had “declined the invitation to abolish common law marriage, deferring such action to the legislature.” Nevertheless, a close read of Staudenmayer demonstrates that the Supreme Court’s discussion of common law marriage, though clearly condemnatory of the practice, does not constitute a holding on its continued viability and does not appear to call for legislative action. Although the Majority in Staudenmayer recognized that “the doctrine’s continued viability is seriously in question[,]” it declined to sound its death knell as “the appellant never raised the validity of the common-law marriage doctrine as an issue[.]” 714 A.2d at 1020 n. 4. Moreover, the opinion does not appear even to acknowledge a legislative role in the perpetuation of this court-created doctrine. Accordingly, we are not convinced that the reference in Bell , on which Nina relies to show trial court error, is sufficient to achieve its assigned task. Although we agree that the decisions of the Commonwealth Court are not controlling in matters before the Superior Court, they remain precedential in trial courts across the Commonwealth. Thus, absent affirmative direction from the Supreme Court rejecting the holding in PNC Bank, we cannot conclude that the trial court erred, per se, in applying it.
In so stating, we assume no position on the holding or rationale of the Commonwealth Court in PNC Bank; nor do we reach a conclusion concerning the continued viability of common law marriage in Pennsylvania. Although, as the Commonwealth Court recognized, both the Majority and Concurring decisions in Staudenmayer herald the abolition of the common law marriage doctrine, see PNC Bank, 831 A.2d at 1282 (quoting Republic Steel v. Maddox, 379 U.S. 650, 667, 13 L. Ed. 2d 580, 85 S. Ct. 614 (1965) (Black J., dissenting) (“Our Supreme Court ‘has raised the overruling axe so high that its falling is just about as certain as the changing of the season. ‘”)), its imminent demise, even if treated as a certainty, does not salvage the trial court’s decision here. Even accepting the decision in PNC Bank as authority for the court’s disposition, we are compelled to conclude, as Nina advances in her second question, that the trial court misapplied it by failing to reckon the limitations imposed by the purely prospective application that case requires.
The concept that the long-standing judicial doctrine of common law marriage could be abolished by an intermediate appellate court in Pennsylvania, and in the absence of a specific ruling by our state’s highest court, found criticism within the panel. Judge Klein dissented:
I agree that even if PNC Bank were a reasonable statement of the law of this Commonwealth, we would not apply it retroactively. I have no problem in saying that all common law marriages effectively entered into prior to the date of PNC Bank are valid. However, I withhold any comment on the holding of PNC Bank until the matter is squarely before us.
I do not believe that we would necessarily follow the analysis of the Commonwealth Court and therefore hesitate to approach this issue in this case, even in dicta. I note that there was little incentive for the “losing” party in PNC Bank to take an appeal from the Commonwealth Court’s statement supposedly abolishing common law marriage since the ruling only applied to future common law marriages. The common law marriage in PNC Bank was upheld and the workers’ compensation benefits were awarded to the common law spouse. Thus, there was no real issue to appeal to the Pennsylvania Supreme Court.
I recognize the trouble that conflicting decisions of the Commonwealth Court and Superior Court present to trial judges and trial lawyers. However, because it appears to me that there is such a strong argument that a long-standing principle such as common law marriage should not be overturned by an intermediate appellate court, I am very reluctant to accord PNC Bank any credence until the issue is argued before our Court in a manner that will permit an appeal to the Supreme Court.
Thank goodness that the Legislature, in the waning days of this two-year session, took note of this confusion and forced a resolution. As of January 2, 2005, the status of common law marriage in Pennsylvania will be resolved — at least as to such marriages alleged to occur on or after that date.
On November 15, 2004, the Pennsylvania House and Senate agreed to a Senate-Amended House Bill No. 2719 (Final Printer’s No. 4482; Prior P.N.s 4094 & 4228), which will bar creation of any new common law marriages in Pennsylvania after January 1, 2005. The legislation will amend Title 23 (Domestic Relations) of the Pennsylvania Consolidated Statutes, in Section 1103, to provide, simply: “NO COMMON-LAW MARRIAGE, CONTRACTED AFTER JANUARY 1, 2005, SHALL BE VALID.” As of November 16, 2005, the bill was in the hands of Governor Rendell for signature, which must occur no later than November 26, 2004, for the legislation to become law, as anticipated.
For the text of the bill, see: http://www.legis.state.pa.us/WU01/LI/BI/BT/2003/0/HB2719P4482.HTM. For the history of the bill, see: http://www.legis.state.pa.us/WU01/LI/BI/BH/2003/0/HB2719.HTM
Any Problems Remaining?
The new law would preserve existing common law marriages “contracted” on or before January 1, 2005, proven under the judicial standards expressed in prior case law; but it will permit no new arrangements of this nature to be recognized thereafter. The legislation provides further in Section 1103: NOTHING IN THIS PART SHALL BE DEEMED OR TAKEN TO RENDER ANY COMMON-LAW MARRIAGE, OTHERWISE LAWFUL AND CONTRACTED ON OR BEFORE JANUARY 1, 2005, INVALID.
Under the repealed, but “grandfathered” (now-current) version of Section 1103, events occurring up to or on January 1, 2005, still could support the existence of a prior common law marriage, which could be recognized by our courts despite the future ban.
Future assertions of common law marriage likely will relate, not coincidentally, to “contracting” events occurring on or before January 1, 2005, and, even more advantageously, before September 17, 2003. For some years to come, claims of common law marriages entered before autumn, 2003, likely will haunt us, but surely will fade from assertion and from judicial resolution.