Domestic Marriage in Oklahoma: An Overview of Its History and Purpose (2023)

The institution of common law marriage is the process by which a couple can consider themselves legally married without the need to officially register their marriage. The practice is rapidly declining across the country, and the few states that still allow it have taken steps to repeal it, including Oklahoma.

Initially, the Oklahoma judiciary protected the establishment of a common-law marriage. InReaves tegen Reaves(1905 OK 32, 15 Okl. 240, 82 P. 490), the Supreme Court ruled that Oklahoma statutes requiring a license, witnesses, and marriage certificate were merely a list and had, in fact, no restrictive effect on the validity of marriages. Since that decision, the Oklahoma Legislature has done everything possible to overturn this participation and require Oklahoma couples to be licensed to enter into a marriage contract.

Legal Requirements for Marriages in Oklahoma

43 OS §4 sets requirements for the solemnization of the marriage and states that "No person may enter into or enter into a marriage... without first having been granted a license by the judge or the clerk of the court..." more reinforced for the language at 43 O.S. §5 and subsequent documents, specifying what the license must contain and expressly stating the following: "The provisions of this document are mandatory and not exhaustive."

Oklahoma's intent to abolish common-law marriage is further evidenced by the language of 43 O.S. §7(A) which states: “All marriages shall be performed by a solemn ceremony performed or performed in the presence of at least two adults, persons authorized as witnesses, by a judge or retired judge of a court of this State or a judge an ordained or authorized minister or minister of the Gospel, a priest or other church official of any denomination duly ordained or authorized by the congregation to which he belongs to preach the Gospel, or a rabbi who is older than eighteen (18) years of age.

Unfortunately, the language in 43 O.S. §§4, 5 and 7 and the legislative intent of the statutes is not specific enough to warrant 12 O.S. §2, which states: “Common law, as modified by constitutional and statutory law, judicial decisions, and the condition and wishes of the people, shall remain in effect in support of Oklahoma's general statutes. but the common law rule that exception statutes must be interpreted strictly will not apply to any general statute in Oklahoma. but all such statutes shall be freely interpreted in furtherance of their purpose.'

Legal Definitions of Common Law Marriage in Oklahoma

What constitutes a common-law marriage has been debated in Oklahoma courts since the state's inception. The elements and determinants are constantly changing and have differentiated over time in an effort to secure a definitive standard of common law to follow. Prior to the current definition, previous Oklahoma cases established that there were five items that had to be proven by clear and compelling evidence.

The five required elements are:

  1. There must be a genuine and mutual agreement between the spouses to become husband and wife.
  2. steady relationship
  3. an exclusive relationship
  4. Living together as husband and wife
  5. The parties to the marriage must publicly declare themselves husband and wife.

In the following cases, the five requirements mentioned above have been established or fulfilled:

  • Quinton to Webb(1952 OK 294, 248 P.2d 586)
  • Finca Stinchcomb(1983 OK 120, 674 P.2d 26)
  • Win hart versus win hart(1999 OK CIV APP 42, 979 P.2d 761)
  • Dowell to Welch(1978 OK CIV APP 1, 574 P.2d 1089)
  • Phifer Estate(1981 OK CIV-TOEPASSING 21, 629 P.2d 808)

However, in 2001, the Oklahoma Supreme Court ruledStandefer versus standeefer(2001 OK 37, 26 P.3d 104), a common law marriage is formed when "the minds of the parties meet at the same time" and the other evidence was simply evidence to be taken into account to establish the existence of a prove marriage relationship. The presence of these factors can be decisive evidence to bring about a common law marriage, but they are not factors that require evidence. Instead, the court takes a total circumstances approach by examining all the evidence that shows whether there was an intention to marry on the part of both parties.

Clear and convincing proof of consent to the marriage must still be provided. This language was later honored by the Oklahoma Court of Civil Appeals in 2008.Brooks vs. Saunders(190 P.3d 357 [Okla.Civ.App.2008]). This decision stipulated that “in the absence of any impediment to marriage experienced by either party to the joint marriage, the joint marriage shall take place after the completion of three events: the declaration of the intention of the parties to marry, cohabitation and removal from the community. of being a husband.” The courts as a whole are still considering the evidence that led to the conclusion of these facts.

The actual mutual agreement to enter into a permanent and exclusive marriage must be an existing agreement that both parties agree to. The decision to marry cannot be a unilateral decision and clear and convincing evidence of this actual consent must be provided to immediately enter into a permanent and exclusive marriage relationship, as judged withinOklahoma Department of Mental Health and Substance Abuse v. Pierce(2012 OK CIV APPLICATION 73, ¶ 17, 283 P.3d 894, 899).

Elsewhere, the usual Oklahoma marriage laws are used

A South Dakota Supreme Court applied Oklahoma common law to a couple found by the district court to have entered into a common-law marriage while living in Oklahoma and applied Oklahoma law, citing several cases in its verdict.On the Duval estate(2010 SD 2, ¶¶ 15-21, 777 NW2d 380). The court also cited all three of Brooks' facts.DP Greenwood Trucking Co. v. Indus state. common(1954 OK 165, 271 P.2d 339), which states: “For a valid 'community marriage' to constitute, there must be a genuine and mutual agreement to enter into a conjugal relationship, permanent and exclusive to all others, between the contracting powers of the law to enter into such a contract, which is supplemented by the cohabitation as husband and wife or by the mutual acceptance of their marital duties and obligations. A mere promise of future marriage, followed by illicit relations, is not, by itself, sufficient to bring about such a marriage.'ID card inside. 342. (Emphasis added).

Duval concludes that the parties never entered into an implied agreement to marry and were therefore not married under Oklahoma common law. The court came to its conclusion by stating that the evidence showed no specific time when the parties mutually agreed or declared their intention to marry, citingexhibitor(2001 OK 37), which stated that "the evidence [was] clear and compelling that both parties consented to the marriage on Thanksgiving Day 1988." Arguing that no specific date was presented, the court ruled that the claimant had failed to meet its burden of proof under Oklahoma's standard of proof.

Burden of proof in a confirmed common law marriage

While the elements of entering into a common law marriage have changed over time, the burden of proof remains the same. The question of the existence of the marriage is a matter of fact, and the party seeking to establish the common-law marriage bears the burden of proving the existence of the marriage relationship through clear and convincing evidence.

The burden of proof on the contracting parties is established or supported by:

  • Reed against Reed(1969 OK 95, 456 P.2d 529, 532)
  • exhibitor, (2001 OK37¶ 11)
  • Maxfield v. Maxveld(1953 OK 390, ¶ 24, 258 P.2d 915, 921)

In 2007, the Federal Social Security Administration (SSA) issued a legal opinion asking whether a former resident of Oklahoma in Nebraska could provide evidence of a legal name change. The petitioner filed a common law marriage certificate with Nebraska officials. The Social Security Administration cited Oklahoma case law on whether the affidavit alone met the burden of proof. The legal opinion concluded that Oklahoma did not accept such documents on their own and was therefore insufficient to meet the high burden of proof established by Oklahoma common law (PR 02720.040 OK).

Cohabitation, acts consistent with the marriage relationship, community recognition of the marriage relationship and declarations of the parties are clearly important evidence that the court takes into account when deciding on a common law marriage, but recent jurisprudence also emphasizes it on. about the status of legal documents. In the present case, petitioner Paul Neumann intentionally excluded defendant Brooke McDonald from all relevant legal documents relating to her business and personal affairs.

A Closer Look at the Sufficient Evidence of a Common Law Marriage

InPhifer Estate-deal(1981 OK CIV APP 21, 629 P.2d 808) the Court paid close attention to the testimony of tax accountants, secretaries and business associates, who contradicted the requested marriage and showed by mortgages and foreclosures that the heir did not intend to wear to marry the plaintiff. The party seeking marriage presented irrefutable evidence that the deceased had introduced her as his wife at certain social and business events, but the court stated that "while this may have been the case, isolated instances are not sufficient to establish reputation throughout the community." establish. that he was a married couple".

When the parties have filed joint tax returns at any point in their relationship, proof of a joint tax return is not a conclusive determination of a common-law marriage. InReed against Reed(1969 OK 95, 456 P.2d 529), a divorcing couple moved in together shortly after the divorce was final. The court did rule that there was a common-law marriage, but did not say it began after a joint tax return was filed. Instead, the joint tax return was simply evidence in support of their intention to marry, and the common law start date was the specific date they agreed to marry, which was eight years after they moved back in together.

Intent to file is also a factor taken into account by the Court in determining whether there was a common-law marriage. The Oklahoma Court of Civil Appeals concludedOklahoma Department of Mental Health and Substance Abuse v. Pierce(2012 OK CIV APP 73, 283 P.3d 894) evidence of filing a tax return and writing a residence permit can be overridden by other clear and convincing evidence that a common law marriage existed or not. . One of the ruling party's arguments that the court considered was that the inconsistent filing of the tax return was solely due to the CPA's recommendation.

Note the permission to marry.

Consent to marry is the determining factor in determining whether there is a common law marriage. This concept is further enhanced byWheaton vs. the State(85 Okla. Crim. 132, 144, 185 P.2d 931, 937 [1947]), citing American Jurisprudence vol. 35, which states: "An agreement to live together provisionally and later marry is not a marriage, even if there is cohabitation. There cannot be a per verba contract of praesenti in which the marital status is to be determined in the future. This rule is it applies when a future marriage cannot take place until a convenient time in the future, for example when an existing spouse dies or a ceremony can be performed.' (35 am. Jur. 209 § 41.)

The very act of planning to get married is such strong evidence against common-law marriage that it is again mentioned.As for the Hornback estate(1970 OK 142, 475 P.2d 184), who stated: “It is generally accepted that common law marriage is contractual and must be based on the mutual consent of the parties. From the evidence presented in this case, we can only conclude that the deceased and the plaintiff had the intention and intention to marry at a future date. However, the mere consideration of marriage does not constitute actual marriage. A common law marriage is based on the current assumption of an existing relationship, not what the parties intended or agreed to do in the future. In order for a marriage to be valid per verba de praesenti, there must be an agreement to immediately become husband and wife from the moment mutual consent is given." (ReportChapman versus the state[84 Ok.Cr. 41, 178 P.2d 638] jPeacock vs Peacock[196 Ga. 441, 26 S.E.2d 608]).

The parties must make it clear that there was no mutual agreement to marry before an Oklahoma court can declare a de facto divorce. Oklahoma law has made it very clear that a future marriage vow does not constitute a mutual agreement to marry. There was never a specific date or time when the parties mutually agreed to marry, and therefore there can be no question of a common law marriage.

Questions about Family Law? Our lawyers can help you!

Ball Morse Lowe is the trusted nameFamily Law and Divorce Law in Oklahoma Cityand further. If you have questions about common law marriage and whether you and your spouse can file a marriage declaration through this unique legal process, call (405) 701-5355 to connect withour lawyers. We can provide you during afirst consultationscheduled for your convenience.


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