The concept of common law marriage is perhaps one of the most misunderstood than any other area of family law. In its most basic form, common law marriage is a consensual non-ceremonial marriage between a man and a woman. It is a matrimonial bond that is formed by the consent of the parties as opposed to meeting all the state-imposed requirements of a ceremony and a license.

Common law marriage was well-established as a part of the English common law and ultimately adopted in Oklahoma by the Territorial Supreme Court in the case of Reaves v. Reaves, 1905 OK 32, 15 Okla. 240, 82 P. 490 (1905). The Reaves court held that Oklahoma law requiring a license, witnesses, and a certificate of marriage are simply directory and not mandatory.1 In short, “[A] common law marriage is formed when a ‘the minds of the parties meet in consent at the same time.’ 2

Many Oklahomans are under the misconception that by simply living together for a period of time, a couple has established a common law marriage. That misconception, however, is untrue. Oklahoma cases identify three elements which must be proven in order for a common law marriage to exist. Those elements include:

1. An actual and mutual agreement to enter into a permanent and exclusive marriage;
2. The parties being legally capable of marriage; and
3. The marriage must be consummated by either cohabitation or the open mutual assumption of marital duties. 3

The person seeking to establish a finding of common law marriage has the burden of proving each of the elements outlined above by a clear and convincing standard.4

House Bill 2634 recently passed the Oklahoma House of Representatives. This measure would require that couples undergo a minimum of two hours of counseling before they can marry. In addition, this bill also abolishes the concept of common law marriage. With this legislation currently pending, the future of common law marriage remains uncertain within the State of Oklahoma. As for now, however, it stands firm as a part of our adoption of the English common law.

1 See Reeves v. Reeves, 1905 OK 32, 82 P.2d 490 (Okla. Terr. 1905) 442

2 Standefer v. Standefer, 2001 OK 37, 26 P.3d 104, quoting Reaves v. Reaves, 1905 OK 32, 82 P. 490

3 Bothwell v. Way, 1914 OK 571, 44 Okla. 555, 145 P. 350 (1914); Cavanaugh v. Cavanaugh, 1929 OK 101, 135 Okla. 204, 275 P. 315 (1929); Vann v. Vann, 1939 OK 495, 186 Okla. 42, 96 P.2d 76 (1939); Maxfield v. Maxfield, 1953 OK 390, 258 P.2d 915 (Okla. 1953).

4 Maxfield v. Maxfield, 1953 OK 390, 258 P.2d 915, 921 (Okla. 1953).

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.