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INTERSTATE RECOGNITION OF COMMON LAW MARRIAGES
© 1997 National Legal Research Group, Inc.
The institution of common law marriage has been steadily declining in recent years. Of the 50 states, 40 no longer allow such marriages to be contracted within their borders. Nevertheless, most states will recognize a marriage that was valid in the state of the parties' residence at the time of marriage. See 1 Homer H. Clark, The Law of Domestic Relations in the United States 2.4 (2d ed. 1987); Annotation, Common Law Marriage, 92 A.L.R.2d 1102 (1963). This fact, combined with the mobility of modern society, continues to force courts in all states to confront common law marriage issues.
The cases on interstate recognition of common law marriages fall into two separate categories. When the couple resided in a common law marriage state at the time of the alleged common law marriage, courts in other states simply apply the marriage state's law to determine whether such a marriage was validly contracted. See, e.g., Atkinson v. Valley National Bank of Arizona, 22 Ariz. App. 297, 526 P.2d 1252 (1974) (common law marriage of former Texas residents recognized in Arizona; validity of marriage governed by Texas law); Anderson v. Anderson, 577 So. 2d 658 (Fla. Dist. Ct. App. 1991) (common law marriage of former Georgia residents recognized in Florida; validity of marriage governed by Georgia law); Pope v. Pope, 520 S.W.2d 634 (Mo. Ct. App. 1975) (common law marriage of former Kansas residents recognized in Missouri; validity of marriage governed by Kansas law).
A more difficult situation arises, however, when residents of a non-common law marriage state visit a common law marriage state for a short period without becoming residents there. The existence of a common law marriage in this situation depends not only on the other state's law, but also on the forum state's policy. For this reason, recognition of such marriages in the forum state is not always accorded. This article will examine recent cases from around the country involving interstate recognition of common law marriages based on trips by residents of a state that disallows common law marriages to a state that still permits them. (For a discussion of older cases involving this fact pattern, see 1 Homer H. Clark, The Law of Domestic Relations in the United States 2.4 (2d ed. 1987).)
Common Law Marriage Elements
A common law marriage is not solemnized in the ordinary way, but is created by (1) a present agreement to marry, (2) followed by cohabitation, and (3) a general holding out as husband and wife. Black's Law Dictionary 277 (6th ed. 1990). Although the precise requirements for establishing such a marriage vary somewhat from state to state, all common law states generally require proof of these three elements. See 1 Homer H. Clark, The Law of Domestic Relations in the United States 2.4 (2d ed. 1987); Collier v. City of Milford, 206 Conn. 242, 537 A.2d 474 (1988) (identifying elements of common law marriage under Alabama and South Carolina law). There is no requirement that the parties cohabit for any minimum period of time. See Coney v. R.S.R. Corp., 167 A.D.2d 582, 563 N.Y.S.2d 211 (1990), appeal denied, 77 N.Y.2d 805, 568 N.Y.S.2d 913 (1991).
Nonrecognition
At least three states Illinois, Minnesota, and Arkansas refuse to recognize foreign common law marriages of their own residents. This refusal is based on the states' public policy against such marriages.
In Illinois, a line of older cases declined to recognize common law marriages by Illinois residents on public policy grounds. See Peirce v. Peirce, 379 Ill. 185, 39 N.E.2d 990, 993 (1942); In re Estate of Stahl, 13 Ill. App. 3d 680, 301 N.E.2d 82, 83-84 (1973); In re Estate of Enoch, 52 Ill. App. 2d 39, 201 N.E.2d 682, 689-90 (1964). More recently, a federal district court applying Illinois law held that this rule was not affected by the adoption in 1977 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Lynch v. Bowen, 681 F. Supp. 506 (N.D. Ill. 1988).
The parties in Lynch cohabited in Illinois for 38 years and had three children together. They introduced each other as husband and wife, signed various joint contracts, and filed joint income tax returns. After the man's death, the woman sought widow's insurance benefits under the Old Age, Survivors and Disability Insurance program of the Social Security Act. She alleged that the couple's trips to Pennsylvania, Georgia, and the District of Columbia served as the basis for a common law marriage. The federal district court held that, although some other states might recognize foreign common law marriages of their own residents if validly contracted in the foreign jurisdiction, Illinois would not recognize such marriages in any case. The court noted the Illinois case law to this effect and then determined that nothing in the IMDMA had changed this rule. The commentary to 213 of the Act, which governs recognition of foreign marriages, made clear that the section continued the prior common law of the state. Id. at 509-10.
Subsequently, the Illinois Appellate Court considered in In re Marriage of Mosher, 243 Ill. App. 3d 97, 612 N.E.2d 838 (1993), whether a cohabiting couple had become married at common law by virtue of a five-month stay in Iowa. The parties had begun their cohabitation in Connecticut, where they had two children. Three years later, the family moved to Chicago, where they lived for a year. They then spent five months in Iowa but returned to Illinois. Nearly three years later, the woman filed for divorce, alleging that the couple had an Iowa common law marriage. She introduced evidence that the couple had held themselves out as married in all the states in which they had lived and that their family, friends, and colleagues believed they were married. She also produced documentary evidence, including income tax returns, insurance papers, credit applications, mortgage papers, the man's curriculum vitae, and two newspaper articles, which referred to the couple as husband and wife. The man, however, denied that he had ever intended to be married.
In affirming the trial court's ruling that no common law marriage had arisen under Iowa law, the Illinois Appellate Court did not cite Lynch but did describe the parties' stay in Iowa as "a five month period of residency." 612 N.E.2d at 839. The court then noted that although Illinois had abolished common law marriages, Illinois would recognize such marriages validly contracted in a common law marriage state by residents of that state upon their relocation to Illinois. The court then applied Iowa law to determine whether the parties in the case had become married while they were residents of Iowa. Although the woman had produced sufficient evidence of cohabitation and reputation in that state, she had not satisfactorily proved an agreement to be married there. The court noted that Iowa courts view claims of common law marriage with suspicion, there being no public policy favoring such marriages. Thus, by considering the parties to be residents of Iowa and not Illinois during the relevant five-month period, the court was able to reach the issue of whether the parties had entered into a common law marriage in that state.
In Minnesota, the marriage statute provides that marriages not contracted by obtaining a license and observing certain other formalities "shall be null and void." Minn. Stat. Ann. 517.01 (West 1990). In Laikola v. Engineered Concrete, 277 N.W.2d 653, 656 (Minn. 1979), the Minnesota Supreme Court interpreted this provision as preventing a Minnesota court from recognizing a foreign common law marriage by Minnesota residents.
The couple in Laikola cohabited for many years in Minnesota, holding themselves out as husband and wife and having a child together. In 1967, they visited Montana for a few weeks to purchase property. While there, they represented themselves to their business contacts as married. They purchased a Montana family fishing license, and as a sign of their love for each other they allegedly exchanged polished agates. Noting that at the relevant time Montana permitted common law marriages under certain limited circumstances, the Minnesota Supreme Court held that, even if the parties had entered into a valid common law marriage under Montana law, the marriage would not be recognized in Minnesota because of Minnesota's strong public policy against such marriages. The court noted that 517.01 renders such marriages void, not merely prohibited.
In Arkansas, the marriage statute is more explicit. It provides in relevant part that "[a]ll marriages contracted outside this state which would be valid by the laws of the state or county in which the marriages were consummated and in which the parties then actually resided shall be valid in all the courts in the state." Ark. Code Ann. 9-11-107 (Michie 1987). In Brissett v. Sykes, 313 Ark. 515, 855 S.W.2d 330 (1993), the Arkansas Supreme Court interpreted this provision as requiring residence in the common law marriage state in order for such a marriage to be recognized in Arkansas.
The couple in Brissett cohabited for many years in New York before they moved to Arkansas. In both states, they held themselves out as a married couple. They also traveled in a motor home to almost every state in the nation while they were residents of New York and then Arkansas. Upon the woman's death, the man asserted that he was her surviving spouse by virtue of the couple's travels to many common law marriage states, including Pennsylvania. Noting that 9-11-107 requires residence in the common law marriage state before such a marriage will be recognized in Arkansas, the Arkansas Supreme Court held that the man's evidence of the couple's residence in a common law marriage state was insufficient. Although the man claimed that the couple's trips to Pennsylvania and other common law marriage states had been of a month's duration, he presented no evidence that any of the trips had been for the purpose of changing the couple's residence from New York or Arkansas. The court cautioned that under the statute the proponent of a common law marriage is required to show "a substantial relationship of long duration in the common law marriage state." 855 S.W.2d at 332.
Contacts with Common Law State
A number of other states require their own residents to demonstrate some minimum amount of contacts with the common law marriage state before the court will consider whether a common law marriage actually arose under that state's law. The New Mexico Supreme Court's decision in In re Estate of Lamb, 99 N.M. 157, 655 P.2d 1001 (1982), serves as a good example of this approach. The couple began cohabiting in New Mexico, a state that does not permit common law marriages. Nevertheless, the couple recorded a conversation in which they exchanged marriage vows. They also held themselves out as husband and wife. Later they traveled to Micronesia, staying in Texas for a few days en route. They allegedly repeated their marriage vows while in Texas and Micronesia and held themselves out as a married couple during their stay of several months in Micronesia. They returned to New Mexico, where they lived until the man's death a few years later. The woman then sought to establish herself as his widow for probate purposes.
The threshold question, according to the New Mexico Supreme Court, was whether the New Mexico couple had established significant contacts with a jurisdiction allowing common law marriages. Because Micronesia does not allow such marriages, the only basis for the woman's claim of common law marriage was the couple's brief stay in Texas. The court then held that this contact, without more, was insufficient for the parties to avail themselves of Texas law concerning such marriages. The parties were simply passing through the state and never intended to take up residence there. Texas authority also held that a brief trip to Texas when the parties resided elsewhere did not give rise to a common law marriage under Texas law. 655 P.2d at 1003 (citing Kelly v. Consolidated Underwriters, 300 S.W. 981 (Tex. Civ. App. 1927), aff'd, 15 S.W.2d 229 (Tex. Comm'n App. 1929)); see also Marek v. Flemming, 192 F. Supp. 528 (S.D. Tex. 1961) (trip to Texas did not result in common law marriage when couple had no intention of acquiring residence in Texas).
The New Mexico Court of Appeals applied this rule in In re Estate of Bivians, 98 N.M. 722, 652 P.2d 744, 749-50, cert. quashed, 98 N.M. 762, 652 P.2d 1213 (1982). A New Mexico couple took a number of business and pleasure trips to Texas and Colorado at various times during their relationship. The appellate court first noted that a common law marriage between New Mexico residents will not be recognized without a threshold showing of substantial contacts with the common law state, followed by proof of each element of such a marriage under that state's law. The court then held that the couple in the case lacked sufficient contacts with Texas or Colorado to establish a common law marriage under either state's law.
The Oregon Court of Appeals applied this analysis in a case involving more significant contacts with a common law state, In re Marriage of Wharton, 55 Or. App. 564, 639 P.2d 652, 654 (1982). The couple cohabited in Oregon for 12 years, operated a ranch together, and conducted themselves in all ways as husband and wife. During this period, they made numerous trips to Idaho, purchasing vehicles, clothing, and other items for themselves as well as livestock and equipment for their ranch. They also leased pasture land in Idaho and sought medical and veterinarian services there. They had numerous overnight visits with relatives in Idaho and were considered to be married by all who knew them in both states. Denying the woman's claim of common law marriage, the court of appeals noted that, although the parties had made a great number of trips to Idaho, each visit had been a temporary sojourn for business or pleasure. At no time had the parties intended to establish residence in Idaho. The court concluded that these contacts were insufficient to serve as the basis of an Idaho common law marriage.
The California Court of Appeal applied a similar analysis in Etienne v. DKM Enterprises, Inc., 136 Cal. App. 3d 487, 186 Cal. Rptr. 321 (1982). A California couple lived together for eight years and occasionally vacationed in Texas, staying for about a week each time. While in Texas, they allegedly agreed to be married and told family members that they were married. Noting that the couple had presented no evidence of an intention to become Texas residents, the court of appeal held that their contacts with Texas were insufficient for a common law marriage to arise under Texas law.
Considering this issue in a case involving a couple who moved from California to Virginia and stayed for a few nights in Oklahoma and Texas along the way, the Virginia Court of Appeals held in Kelderhaus v. Kelderhaus, 21 Va. App. 721, 467 S.E.2d 303 (1996), that the couple's "migration" as husband and wife through the two common law marriage states was insufficient contact with each state for a common law marriage to have arisen. The court believed that "[t]o sanction marriage arising from such an insignificant nexus with the common-law state would at once distort and trivialize the concept of common-law marriage and ignore the principles which govern such unions in [common-law states]." 467 S.E.2d at 306.
The courts in the cases just discussed employed a two-part test for the recognition of a foreign common law marriage in the couple's state of residence. First, the proponent of such a marriage was required to show that the couple had sufficient contacts with the common law jurisdiction to avail themselves of that state's law. Then the proponent was required to prove each element of a common law marriage under that state's law. In none of the cases was the proponent able to meet the first requirement.
Conduct in the Common Law State
Most other states apply only the second prong of the test described above. That is, they require the proponent of the marriage to prove each element of a common law marriage under the law of the relevant state, with reference to the couple's conduct in that state.
The Connecticut Supreme Court's decision in Collier v. City of Milford, 206 Conn. 242, 537 A.2d 474 (1988), serves as a good example of this approach. The couple cohabited in Connecticut for 16 years and had a child together. During this time, they took annual vacation trips of approximately two weeks to visit relatives in Alabama and South Carolina. While in these states, the couple slept together, had sexual relations, held themselves out as a married couple, and were generally regarded as husband and wife. The supreme court first identified the elements of common law marriage under Alabama and South Carolina law as (1) a present agreement to be married, (2) followed by cohabitation, and (3) holding out as husband and wife. An agreement to be married must be demonstrated with such clarity that "marriage does not creep up on either of [the parties] and catch them unawares." 537 A.2d at 479. The court then held that the evidence failed to establish a common law marriage in either state. Specifically, the evidence failed to show that the couple had agreed while in Alabama or South Carolina to change the status of the relationship that had existed in Connecticut. Rather, the evidence was consistent with a finding that, while vacationing in these states, the couple simply continued cohabiting without benefit of marriage as they had in Connecticut. Id.
In a similar case, Vandever v. Industrial Commission of Arizona, 148 Ariz. 373, 714 P.2d 866, 871 (Ct. App. 1985), the Arizona Court of Appeals held that an Arizona couple's trips to Colorado had not resulted in a common law marriage. The parties cohabited in Arizona for several years and had a child together. They traveled to Colorado for three weeks to attend the wedding of a family member. While there, they cohabited and introduced themselves as husband and wife. They also allegedly heard a radio broadcast about common law marriage and as a result decided that they were married. A year later they returned to Colorado for two weeks while the man attempted to find employment. After traveling to other states, they returned to Arizona, where the man was killed in the course of his employment.
In affirming the Industrial Commission's denial of widow's benefits to the woman, the Arizona Court of Appeals first noted that Colorado law governed the case. Then, applying the three elements of a Colorado common law marriage, the court stated that the only evidence tending to show an agreement of marriage made in Colorado was the woman's testimony about the couple's decision after hearing the radio broadcast. Such evidence was insufficient to establish such an agreement. Further, the woman had not presented evidence of cohabitation or general repute in Colorado sufficient to establish the second and third elements. The court stated that evidence of how others had perceived them at the wedding, a single event, was hardly evidence of a "general and uniform reputation" of marriage as required by Colorado law. 714 P.2d at 871-72; see also Gonzalez v. Satrustegui, 178 Ariz. 92, 870 P.2d 1188 (Ct. App. 1993) (common law marriage did not result from Arizona couple's one-week trip to Kansas to attend woman's family reunion; no evidence of agreement to be married while in Kansas).
In a more recent case, In re Estate of Glover, 882 S.W.2d 789 (Tenn. Ct. App. 1994), the Tennessee Court of Appeals held that evidence of a Tennessee couple's conduct in Alabama was insufficient to establish a common law marriage under Alabama law. The couple cohabited in Tennessee for several years and made frequent weekend trips to Alabama, where they registered in a motel as husband and wife, dined in restaurants, and went shopping. The woman testified that on their first trip to Alabama "the couple had sexual relations and said their marriage vows to each other with their hands placed on the Bible." Id. at 790. A witness also testified that the couple had visited her in Alabama, and she was under the impression that they were married. Noting that the elements of common law marriage must be established with reference to the couple's conduct in Alabama, the court of appeals held the evidence insufficient to establish any of the elements. As found by the trial court, the only activities the couple had engaged in while in Alabama were "`eating, shopping, and sharing a motel room.'" Id.at 791.
Another example of this approach is a Maryland case, Goldin v. Goldin, 48 Md. App. 154, 426 A.2d 410 (1981). The couple resided in Maryland for 15 years, purchasing property as tenants by the entireties, filing joint tax returns, maintaining joint bank accounts, and generally conducting themselves as husband and wife. They made frequent trips to Pennsylvania during the wintertime to go skiing. They usually stayed at a motel, where they registered as husband and wife. The Maryland Court of Special Appeals held that no common law marriage had arisen from these trips to Pennsylvania because no showing of an intent to be married while in that state had been established. The court also held that the couple's conduct in Maryland could not be used to establish intent or any other element of common law marriage under Pennsylvania law.
The Maryland Court of Special Appeals, however, retreated from its requirement of a clear showing of intent in a recent decision, Blaw-Knox Construction Equipment Co. v. Morris, 88 Md. App. 655, 596 A.2d 679 (1991). The couple cohabited in Maryland for 38 years and had six children together. They filed joint tax returns, maintained joint bank accounts, and generally conducted themselves as a married couple. In 1983, they traveled to Pennsylvania for two days to attend the funeral of a family member. While there, they held themselves out as husband and wife and were regarded as a married couple. Noting that under Pennsylvania law an intent to be married may be inferred from proof of cohabitation and reputation, the court held that the couple's two-day stay in Pennsylvania and their reputation as a married couple there were sufficient to permit an inference of an intent to be married while in Pennsylvania. The court also noted New York authority holding that the couple's conduct in the state of residence may also be considered in determining whether a common law marriage arose from a brief trip to a common law jurisdiction. Although the Maryland court stopped just short of adopting this rule, the court appears to have been strongly influenced by the couple's conduct in Maryland as well as in Pennsylvania.
In cases involving trips to Texas, it is important to note that Texas law itself requires that the conduct offered in support of a common law marriage must have occurred in Texas. In In re Estate of Burroughs, 194 Mich. App. 196, 486 N.W.2d 113 (1992), the Michigan Court of Appeals recognized this requirement. The couple in the case cohabited in Michigan for many years. At one point, the woman leased an apartment in Texas while she served a two-year term as dean of nursing at a university there. The man remained in Michigan, but he traveled to Texas one weekend a month to stay with the woman. After nearly a year, the woman returned to the couple's home in Michigan and commuted to Texas for the remainder of her employment. After noting the requirement of Texas law that the elements of a common law marriage be met while the couple is in Texas, the Michigan court held that the woman's evidence of cohabitation in Texas was insufficient. Indeed, the fact that the man had maintained the couple's home in Michigan negated a finding of cohabitation in Texas. The court stated that living together in Michigan does not satisfy the Texas cohabitation element. See also Kelderhaus v. Kelderhaus, 21 Va. App. 721, 467 S.E.2d 303 (1996) (noting requirement of Texas law that elements of common law marriage must be proved with reference to parties' conduct in Texas).
Conduct in Both States
The New York courts have taken a very liberal approach to foreign common law marriages by New York residents. The courts of this state consider the couple's conduct in both the common law jurisdiction and in New York to determine whether the elements of such a marriage are present. As might be expected, the result is usually a finding of a valid common law marriage.
The New York Court of Appeals expressly held in Mott v. Duncan Petroleum Trans., 51 N.Y.2d 289, 434 N.Y.S.2d 155 (1980), that a New York court should consider the couple's conduct in New York, as well as in the common law jurisdiction, as possible evidence of an intent to marry. The couple in the case cohabited in New York for nine years and conducted themselves in all respects as a married couple. They made several trips to Georgia, staying there for weeks at a time with the woman's daughter. While there, they held themselves out as a married couple. The court of appeals held that the Workers' Compensation Board had erred in concluding that no common law marriage had arisen, thereby denying widow's benefits to the woman. Noting that under Georgia law an intent to be married may be inferred from evidence of cohabitation and reputation, the court stated that the board should have considered the behavior of the couple in New York as evidence of their intent to marry. Although such evidence was secondary to evidence of the couple's conduct in Georgia, it was nevertheless relevant to show "whether the parties viewed themselves as married upon their trip to Georgia." 434 N.Y.S.2d at 158.
The United States Court of Appeals for the Second Circuit followed this approach in Renshaw v. Heckler, 787 F.2d 50 (2d Cir. 1986) (applying New York law). The couple cohabited in New York for 20 years, had a child together, and conducted themselves as husband and wife. During the relationship, they made a number of trips to Virginia and North Carolina to visit relatives. On the way, they always spent a night in Pennsylvania, registering in a motel as a married couple. With the exception of a coincidental meeting with the woman's brother, who believed they were married, the couple never met anyone they knew while in Pennsylvania. The federal magistrate found this evidence insufficient to establish a common law marriage and denied the woman's claim for widow's benefits.
Reversing, the Second Circuit acknowledged that no evidence existed of an intent to create a marriage while in Pennsylvania. The court believed, however, that a New York court would permit inquiry into the parties' conduct in New York as well as in Pennsylvania to determine whether an intent to marry had existed at any time. If so, the parties' stay in Pennsylvania would be sufficient for a common law marriage to arise. The court then determined that the couple's conduct in New York as well as in Pennsylvania established the requisite intent to be married. Thus, a common law marriage had arisen by virtue of the couple's stay in Pennsylvania. Id. at 54.
Since these decisions, the New York courts have frequently recognized common law marriages of New York residents based on short visits to common law jurisdictions, so long as the couple's conduct in New York is largely consistent with marital status. E.g., Tornese v. Tornese, ___ A.D.2d ___, 649 N.Y.S.2d 177 (1996) (common law marriage recognized when New York couple visited Pennsylvania for one weekend); Carpenter v. Carpenter, 208 A.D.2d 882, 617 N.Y.S.2d 903 (1994) (common law marriage recognized when New York couple visited Pennsylvania for one week); Coney v. R.S.R. Corp., 167 A.D.2d 582, 563 N.Y.S.2d 211 (1990) (common law marriage recognized when New York couple visited Georgia for three days), appeal denied, 77 N.Y.2d 805, 568 N.Y.S.2d 913 (1991); Ram v. Ramharack, 150 Misc. 2d 1009, 571 N.Y.S.2d 190 (Sup. Ct. 1991) (common law marriage recognized when New York couple visited relatives in District of Columbia); Beatrice H. v. Eugene H., 11 Fam. L. Rep. (BNA) 1161 (N.Y. Sup. Ct. 1985) (unreported decision) (common law marriage recognized from New York couple's annual two-week vacations to Georgia); In re Estate of Blackman, 7 Fam. L. Rep. (BNA) 2021 (N.Y. Sur. Ct. 1980) (unreported decision) (common law marriage recognized from New York couple's visits to Pennsylvania, South Carolina, and Georgia). However, if the couple's conduct in New York is inconsistent with marital status, a common law marriage usually is not recognized. E.g., In re Will of Garr, 192 A.D.2d 396, 596 N.Y.S.2d 53 (1993) (common law marriage did not result from New York couple's trips to Pennsylvania or South Carolina; parties filed separate tax returns and man referred to woman in his will as "friend" rather than "wife" or "spouse"); Jennings v. Hurt, 160 A.D.2d 576, 554 N.Y.S.2d 220 (1990) (common law marriage did not result from New York couple's stay in South Carolina; subsequent conduct of parties in New York negated intent to be married), appeal denied, 77 N.Y.2d 804, 568 N.Y.S.2d 347 (1991); Cross v. Cross, 146 A.D.2d 302, 541 N.Y.S.2d 202 (1989) (common law marriage did not result from New York couple's weekend visits to Pennsylvania and the District of Columbia; no evidence of holding out as husband and wife in either common law jurisdiction or in New York). As noted by Professor Clark, the explanation for New York's liberal approach appears to be that the state's prohibition of common law marriage is not a very strong policy, and nothing more important is at stake than the form a marriage contract takes. 1 Homer H. Clark, The Law of Domestic Relations in the United States 2.4 (2d ed. 1987).
Conclusion
This brief survey of recent cases involving foreign common law marriages by residents of states that no longer permit such marriages has revealed four main approaches to the problem: (1) nonrecognition in any case (the Illinois rule); (2) recognition if the couple had sufficient contacts with the common law state and met that state's requirements for such a marriage (the New Mexico rule); (3) recognition if the couple met the common law state's requirements for such a marriage while present in that state (the Connecticut rule); and (4) recognition if the couple met the common law state's requirements for such a marriage with reference to the couple's conduct in that state and in the state of residence (the New York rule).
Professor Clark prefers the moderate approach represented by the second and third views. He notes that the moderate approach avoids the unreality of an exclusive reliance on residence because many people today spend long periods of time away from their residence. At the same time, the moderate approach avoids the questions raised by the New York rule. For instance, does a common law marriage arise when the parties pass through a common law state and spend one night there? Or when they ride through in a train? Or when they fly over it in an airplane? 1 Homer H. Clark, The Law of Domestic Relations in the United States 2.4 (2d ed. 1987).
The moderate approach also avoids the problem of marriage "catching the parties unawares." Collier v. City of Milford, 206 Conn. 474, 537 A.2d 474, 479 (1988). A couple cohabiting in a state that does not allow common law marriage may be well aware, and perhaps should be presumed to know, that under their state's law their relationship is not a marriage. Under the New York rule, however, if they travel to or through another state that happens to be a common law jurisdiction, they may find themselves married even though one or both of them never intended such a result. As the Oregon Supreme Court noted in Walker v. Hildenbrand, 243 Or. 117, 410 P.2d 244, 246 (1966), something as serious as the marriage relationship should not rest on something as insubstantial as a brief visit to a common law state, especially when no evidence exists that the parties were aware that any change in their marital status could result.
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