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Same-sex couples have been making headlines by traveling to sympathetic states to obtain a marriage license. But for some D.C. couples, a marriage license and an official ceremony are not necessary. They can get married simply by agreeing that they are married and then behaving like they’re married. They will thereby create a common law marriage, which is valid and recognized in the District of Columbia. While only nine states still permit common law marriage — the number of common law jurisdictions has decreased markedly over time — the concept has existed under D.C. law for more than 65 years. And even states that no longer allow common law marriage themselves, including Maryland and Virginia, will recognize as valid such marriages legally formed in the District. So it is an option for local couples. WHAT ARE YOUR INTENTIONS? But before leaping in, those considering a common law union must understand what it does and does not offer. A number of myths surround common law marriage. One popular misconception is that the couple must first live together for seven years. That just isn’t so. To form a common law marriage in the District, a couple must meet the following standards: They must have the legal capacity to be married. That means both partners are over 16 years old, and are not mentally or physically incompetent. They must agree to be married to each other, and to cohabit in good faith as husband and wife. They do not have to live together for any set period of time. But they must live together as if they are married, complete with sexual relations. There are no magic words to create a common law marriage. The two individuals just have to agree to be married — in the present, not the future, tense. They are then legally married and are entitled to enjoy the same rights and obligations as if their marriage came complete with a license and a member of the clergy or a judge officiating. No court action is required. No documents need to be signed. The doctrine of common law marriage is based on established principles of contract law. In other words, two people make a verbal contract to be married and then act accordingly. The District, unlike some other jurisdictions, does not require that the couple hold themselves out to the public as married. But if a person is later required to prove that a common law marriage exists, a lack of public corroboration may be decisive. In this respect, the law of evidence plays a critical role in the doctrine of common law marriage. Common law couples may hold themselves out as a married couple by opening joint bank accounts, wearing wedding rings, owning property together, introducing themselves as husband and wife, obtaining health insurance as husband and wife, or filing forms with the government indicating their status as married. Historically speaking, the recognition of common law marriage was an effort to protect women. States wanted to ensure that wives would inherit on the death of their husbands; that if they were abandoned, they could claim financial support from their husbands (instead of being dependent on the state); and that children born to the couple were legitimate, even if the technicalities of state law or the benefit of clergy had been lacking in the formation of the marriage. Critics of common law marriage attacked the contractual underpinnings of the doctrine, arguing that while marriage was in some respects contractual, it was also much more than that. They said that marriage represented both a social status — indeed, the basis of the social order — and the most important of human contracts. Marriage should not be viewed just as a private matter between spouses, said critics; it was a relationship in which society and the state had a legitimate public interest. Over the decades, courts and legislatures have continued to revise the laws of marriage and divorce in this ongoing contest between social norms and legal standards. The current debate over same-sex marriage is a striking example of legislatures revising laws in light of changing social norms. In those states that still allow the formation of common law marriage, the issue of whether same-sex couples might now be recognized as having formed valid common law marriages is an interesting wrinkle for courts to iron out. Back in 1995, the D.C. Court of Appeals determined that the D.C. marriage statute does not include same-sex unions. So the situation does not look bright in the District for recognizing a common law same-sex marriage. But times (especially in the context of gay rights) have changed, the composition of the appeals court has changed, and it is possible that a new case will be brought raising the issue. BREAKING UP IS HARDER TO DO Although two people can be married by their own words and deeds in the District, they can’t divorce themselves. That is, there is no such thing as common law divorce. Once a marriage is formed, the law steps in and creates various obligations that the parties must meet. So common law marriages end the same way that statutory marriages end — when one spouse dies or when the parties obtain a divorce in the more customary manner. Absent a death or a decree of divorce, any subsequent marriage by a common law spouse to a third party would be void and bigamous. Disputes surrounding common law marriage often arise in the context of the death of one spouse. The surviving spouse seeks a share of the deceased’s estate or other spousal benefits, such as insurance proceeds, Social Security payments, or survivor’s benefits from a pension. Skeptical payers have been known to challenge the existence of the marriage, and sometimes the survivor cannot produce sufficient documentary evidence. Sometimes disputes also arise between two individuals who have lived together, but only one of whom considers the couple to be married. A claim of common law marriage is sometimes asserted so as to require that a dispute between two people be resolved in the context of the rights and remedies available in divorce court — rights that are usually broader and more flexible than the contract or property law obligations between unmarried persons. Of course, for this scenario to work, the claimant must first prove the common law marriage and then sue for divorce in the very next breath. Although an old legal concept, common law marriage is a stealth doctrine that has the potential to create mischief in the households of thousands of couples currently cohabiting in the District. When will an exchange of romantic utterances change an unmarried couple into a married couple? To be on the safe side, if you mean those words of undying love and affection and wish to be joined as one (and the law permits such a joining), get a marriage license. If you don’t mean them, choose your words and deeds with care — or you may be in for a lot more trouble than you bargained for. Marna S. Tucker is a partner in D.C.’s Feldesman Tucker Leifer Fidell, and an expert in complex divorces and prenuptial and postnuptial matters, having practiced in the domestic relations field for more than 30 years. Feldesman Tucker associates Marina Barannik, Camellia Jacobs, and Sarah Zimmerman contributed to this article. Tucker can be reached at [email protected].

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