FAMILY LAW

Common Law Marriage • Inconsistent Evidence

Rotundo v. Jones, PICS Case No. 14-0404 (C.P. Berks Jan. 27, 2014) Lash, J. (11 pages).

Plaintiff failed to prove common law marriage by clear and convincing evidence. Appeal should be denied.

Plaintiff brought divorce action, alleging that parties entered into a common law marriage on May 12, 1996, when, with the intention of becoming husband and wife, they exchanged words for that purpose. The divorce complaint alleged that the parties were married under common law “not later than March 19, 2003, at which time [defendant] presented [plaintiff] with a ring before witnesses including the couple’s three children, affirming their marital status as husband and wife.” Defendant denied entering into a common law marriage with plaintiff on May 12, 1996, March 19, 2003, or at any other time.

After hearing, the court dismissed the complaint, finding that plaintiff failed to meet her burden that a marriage contract existed. Plaintiff appealed. The court issued a Pa.R.App.P. 1925(a) opinion requesting that the order be affirmed.

The doctrine of common law marriage, once valid in Pennsylvania, has been abolished, although Pennsylvania continues to recognize common law marriages entered into before Jan. 1, 2005.

A common law marriage can only be created by an exchange of words in the present tense, spoken for the purpose of establishing the legal relationship of husband and wife. Where, as here, the parties were available to testify regarding the exchange of words in the present tense, the burden of proof rested with the party claiming the common law marriage to produce clear and convincing evidence of said exchange of words.

Plaintiff stated that an exchange of words in the present tense occurred on Mother’s Day, May 12, 1996, when the couple was viewing real property they had recently agreed to purchase. Plaintiff claimed that, at that time, defendant stated “… you and I are married, and I am your husband, and you are my wife, and I am committed to nobody else but you.” Later on that same day, defendant presented plaintiff with a Mother’s Day card which featured preprinted material, including the statement “I love you, my wife.”

Defendant denied the existence of the common law marriage. He claimed that he never intended to marry plaintiff and never stated the requisite words of present intent. He never considered plaintiff to be his wife, nor held her out to third parties as owning that status.

Both parties’ testimony was self-serving and of questionable credibility. For example, plaintiff provided two different dates for the creation of the marriage. Plaintiff claimed the marriage occurred on May 12, 1996, when the parties exchanged words for that purpose. However, in her complaint, plaintiff asserted that the marriage occurred on March 19, 2003, when defendant, “wanting to reinforce the fact that we were married,” presented plaintiff with a ring. Plaintiff attempted to explain the inconsistency by stating that she was under “extreme duress” at the time she filed the divorce complaint because she was about to be “thrown out” of the parties’ home through a partition action and her attorney advised her to file the divorce action to stop the partition. She agreed to file the action but, because she was unable to remember the exact date of the common law marriage, she chose to rely upon the date of the “ring ceremony.”

Other evidence (i.e., documentation and discussions on actions taken by the parties) support defendant’s position. The divorce complaint and the child support documentation both contain statements from plaintiff inconsistent with her position that the parties entered into a common law marriage on May 12, 1996. Additionally, the deed for the property purchased by the couple, executed on May 24, 1996, after plaintiff’s purported date for the marriage, lists the parties as joint tenants, not as tenants by the entireties. Furthermore, refinance documents and federal tax returns list the parties as “single.”