Legal Memo - Common-Law Marriage

MEMORANDUM

TO: Partner

FROM: Associate

DATE: November 17, 2011

RE: Common-Law Marriage

ISSUE

The present, mutual agreement element of common-law marriage requires that there be a mutual understanding between both parties to presently enter into the marriage relationship, permanent and exclusive of all others. Robert and Sarah were living together and had intentions of marrying in the near future, when Robert died suddenly. Did the actions of Robert and Sarah fulfill the present, mutual agreement requirement for a common-law marriage?

BRIEF ANSWER

Probably not. An intention to marry in the future is not enough to satisfy the present, mutual agreement element of a common-law marriage. After Robert and Sarah moved back in together following their divorce, Robert had been trying to convince Sarah to marry him in Las Vegas. Initially, Sarah was hesitant; but later she seemed open to the possibility of getting married in the future. At the time of Robert's death, they had not agreed to any marriage arrangements. Robert and Sarah's actions demonstrate that they might have been willing to get married in the future, but there was no mutual understanding to presently enter into a marriage relationship. Therefore, their actions probably do not satisfy the present, mutual agreement element of common-law marriage.

FACTS

Robert and Sarah were married in 2005, and then subsequently divorced in 2009. The divorce was a result of Robert's refusal to end an affair with another woman. Although Robert and Sarah never had children, Sarah's niece Amber lived with them and treated Robert like a father. In March 2009 Robert's affair ended, and a few months later he was asking Sarah to reconcile their relationship. On June15, 2009, Robert moved in with Sarah and her niece in Montgomery, Alabama. In July, while Sarah was out of town, Robert had a sexual encounter with another woman. In an effort to make up for his infidelity, Robert promised Sarah he would purchase a large new house where they could live with Amber. Shortly thereafter, Robert and Sarah resumed sexual relations for the first time since they were married. As current and former politicians, they were aware that a remarriage would give them both a PR boost. They also indicated to others that they were planning to remarry later in the summer.

In August, Robert and Sarah moved into the new house in Montgomery. Robert made the down payment, and they planned to make monthly payments from their joint checking account. The deed to the house listed the couple as "husband and wife, joint tenants, with right to survivorship."