Maryland’s Approach to Common Law Marriage
Maryland does not recognize common law marriages. As a general rule, the state of Maryland does not recognize common law marriages entered into after January 1, 2013. However, common law marriages that were entered into before that date are still recognized by the state. These relationships may be dissolved by the Circuit Court by way of divorce if all other statutory requirements are satisfied. However, common law marriages are treated the same as ceremonial marriages by the Circuit Court in Maryland for purposes of alimony, child custody, and child support.
The rationale behind the general rule contained in Section 2-503 of the Family Law Article of the Maryland Code is that such a rule "prevents the difficulties and fraudulent claims that might result from the recognition of an informal marriage," and it "also protects those parties who would be prejudiced by reliance on one of their number’s representation that there was an agreement to marry without the formalities of a ceremony." Although Section 8-106 of the Family Law Article provides that common law marriages entered into prior to January 1, 2013 are valid, any couples whose common law marriage has been recognized in another state since January 1, 2013 may have an exception to the general rule. In other words, if a couple entered into a common law marriage in Pennsylvania (a state that continues to recognize common law marriages) prior to January 1, 2013, and then moved to Maryland, their common law marriage entered into in Pennsylvania may be recognized in Maryland.
However, recognizing this exception, the Maryland Court of Appeals has recently considered whether a couple who had entered into a common law marriage in Pennsylvania, but could not prove an actual common law marriage in Pennsylvania under its law, could use the exception to invalidate Maryland’s general rule recognizing common law marriages entered into prior to January 1, 2013. In Perkins v. Comm’n on Human Relations (No. 61, Sept. Term 2015), both Mr. and Ms. Perkins were employed with the commission that adjudicates discrimination claims, and they were long-time co-workers . Based on their long history, Mr. Perkins filed a claim under the Maryland Fair Employment Practices Act, contending that Ms. Perkins had discriminated against him. Ms. Perkins then obtained a protective order against Mr. Perkins, which ended up invalidating his claim. Mr. Perkins then filed a complaint alleging that the Commission discriminated against him based on his relation with Ms. Perkins. He claimed, among other things, that the Commission treated his claim differently than the claim of a similar relationship filed by a married couple. At the administrative hearing, Mr. Perkins "argued that the Commission discriminated against him by treating same sex couples differently from opposite sex couples, thus acknowledging that same sex couples are considered married under Pennsylvania law whether a marriage is lawful or not, while an opposite sex couple must be lawfully married for their claim to be considered by the Commission." Id. at 9-10. The Commission found that Mr. Perkins was not lawfully married to Ms. Perkins, and allowed his claim to go forward. On appeal, the circuit court and the court of special appeals both found that there was sufficient evidence to show that Mr. Perkins and Ms. Perkins were lawfully married in Pennsylvania for purposes of equal protection.
On further appeal to the Court of Appeals, the court held that the Commission violated the Equal Protection Clause of Article 24 of the Maryland Declaration of Rights by treating Mr. Perkins’ claim differently than similarly situated heterosexual couples who were lawfully married. The court noted that if though Mr. Perkins and Ms. Perkins were not able to prove common law marriage in Pennsylvania, they could have satisfied the elements of common law marriage as set forth under Maryland law under Sections 1-206 and 1-207 of the Estates and Trusts Article of the Maryland Code. In light of all of this, the court agreed with the intermediate appellate court that the Commission had unfairly discriminated against Mr. Perkins, and held that his claim should go forward.
Common Law Marriage in Maryland: A Brief History
Common law marriage has long been a part of Maryland’s legal history, and has evolved over the years. In 1888, Maryland first codified the concept of common law marriage. The 1888 Act made it unlawful for those who were already married to marry again, but made an exception for those who "believe[d] under the laws of this State to be married". In 1898, the general assembly repealed the 1888 Act and made common law marriages illegal. Despite its repeal, the 1888 Act was not fully implemented. In its wake, the Court of Appeals of Maryland upheld at least four common law marriages in the years 1900, 1917, 1933 and 1950. Yet, without a law on the books, it was difficult to predict what the courts would do in any particular case. For example, in 1967, the Court of Appeals invalidated a common law marriage that had spanned more than three decades, but very short of the 14-year minimum required by other states.
In 1970, the general assembly enacted legislation making common law marriages no longer valid in Maryland. Beginning on July 1, 1970, Section 2-301 of the Family Law Article provided that: "(a) Any marriage occurring in this state after July 1, 1970, shall be void unless the marriage license is obtained prior to the marriage ceremony and the application for the license is properly completed. Such a marriage may not be validated by a subsequently filed certificate of marriage. Nothing in this section shall affect any common law marriage contracted in this State prior to July 1, 1970." Under this law, all common law marriages entered into before July 1, 1970 remained valid. Yet the terms of the statute raised significant questions of interpretation. Most importantly, there was no clarity as to whether a couple who had established a common law marriage prior to July 1, 1970 could enter into a marriage after that date.
In 1976, the Court of Appeals answered this question in Stansbury v. Frost. In Stansbury, the parties began living together in 1964. They married on October 10, 1965. Shortly thereafter, they separated. In the ensuing divorce action, the court held that the person seeking the divorce had not established a common law marriage before his purported marriage and was therefore prohibited from seeking a divorce under the laws of Maryland. The court noted that prior to 1970, the only distinction in Maryland law between informal marriage and formal marriage was that the "former [did] not require legal formalities" and the "latter [did] require" them. Therefore, because the person seeking to divorce had not established a common law marriage before October 10, 1965, the common law marriage was void as of that date and the subsequent statutory "marriage" was void as well.
From 1976 through the end of 2012, the law was settled as to the validity of common law marriages entered into before July 1, 1970. However, another question remained: What happens if two people entered into a common law marriage, but then left Maryland, moved to another state and became legally married in that state? Would the one year residency requirement apply to them? The answer is yes. In Green v. H & R Block Tax Services, the Maryland Court of Appeals upheld the lower court’s decision invalidating a common law marriage that had been followed in another state by a statutory marriage meeting that state’s residency requirement. That is because the common law marriage contradicts the subsequent legislative policy of State. Accordingly, Maryland law is clear both as to the existence of common law marriages entered into before July 1, 1970, as well as those whereby the parties were legally married in a different state. The issue of whether new historically common-law states will recognize common law marriage for days to come remains to be seen.
The Fate of Out-of-State Common Law Marriages
How do common law marriages formed under the laws of other States fare in Maryland? The answer is that under some circumstances, the Maryland Courts recognize such marriages if they were legally formed in the out-of-State jurisdiction. In 1934, the Maryland Court of Appeals decided the case of O’Brien v. O’Brien, where the trial court dissolved a marriage which had been valid in Pennsylvania but invalid in Maryland, stating: This is in accordance with the general rule recognized in most jurisdictions, to the effect that all contracts valid where made are valid everywhere unless som statute or rule of the State prohibits their validity, and that as an incident thereof, all rights arising from such a contract are recognized in all States where the contract itself is recognized. Engaging in such an analysis in New Jersey equities, the Court of Appeals of Maryland in Tomaino v. Tomaino, 230 Md. 70, 185 A.2d 830 (1962), stated: As the proposed marriage was valid under the Pennsylvania law the plaintiff’s right to inherit from her wife as well as her right to property held as tenants by the Entireties are to be determined by the law of Pennsylvania notwithstanding the invalidity of the marriage in Maryland. This result is fully consistent with the purpose and principles of the Conflict of Laws, since recognition of the validity of the marriage in Pennsylvania preserves the outcome which the parties themselves intended, rather than according priority to the place where the parties resided after entering into their relationship.
What Options Do Unmarried Couples in Maryland have?
While common law marriage is no longer an option for Maryland residents, the state does have other avenues for couples who choose not to marry but still wish to have some legal recognition of their relationship.
Domestic Partnership
Maryland’s Domestic Partnership law permits same-sex and opposite-sex couples to join together for a legally recognized partnership. The partners must be at least 18 years of age and not be related to each other in a way that would prevent marriage in the state of Maryland. The relationship must also be one of mutual support and caring in which both partners are responsible for each other’s common welfare. Domestic partnerships allow for hospital visitation rights and medical decision-making. They also provide for health insurance coverage under the group health insurance of a partner who is an employee of the State of Maryland or any political subdivision in the state. All benefits provided to spouses under the law are available to domestic partners as well .
Cohabitation
Cohabitation agreements – contracts established between two people living together who (regardless of gender, sexual orientation or family relationship) seek to establish their financial rights and obligations in a manner similar to traditional couples – provide an alternative for those who do not seek to adopt a lifestyle based on marriage. They are designed to protect the rights of each individual and their property during the course of the relationship and after it ends. These agreements can be useful in areas such as property distribution, spousal support, inheritance and succession rights, finances, costs of living, and child custody. Co-habitants should also consider entering into a will since many intestacy laws provide that property rights are intended for those who are legally entitled to inherit from the deceased partner, which does not include unmarried co-habitants.
While common law marriage and other alternatives available to couples are very different, those who seek to jointly share in the management of their affairs can benefit from the protections associated with marriage or acceptable substitutes.
Legal Issues for Couples Without Common Law Marriage
For couples who live together in Maryland without the protection of a common law marriage, there are key legal considerations and potential issues that could arise: Separation or Divorce — If you decide to separate without a legal marriage or domestic partnership, then your property and division of assets will be subject to the laws of Maryland. These laws are somewhat similar to laws governing prenuptial agreements as Maryland recognizes declarations by parties who are now married that they have agreed to divide their property after death or divorce. However, with no written agreement, the family courts will divide clearly titled assets and appraised value. Division of Property — Common law spouses, who have shared ownership of property, bank accounts and credit cards, must be prepared to provide documentation concerning their interest in joint property such as proof of when the property was purchased, appraisals and how the asset was paid for. Equitable Division of Real Property — Regardless of whether the couple is legally married, the family court could order, upon request of one spouse, that the property be sold if it cannot be divided without a sale, if an agreement cannot be reached or if the separation is likely to cause irreparable harm to one spouse. Child Custody — In the case of a minor child born to the unmarried couple, either party could seek a court order for child support and custody. If the parents cannot agree on child custody, the family court must make the decision in the best interests of the child.
How to Safeguard Your Rights in the State of Maryland
To ensure your rights and interests are protected, it is crucial to understand and, if necessary, take the steps to amicably formalize your relationship. Have a prenuptial or postnuptial agreement. This is the best proactive step to ensure that your rights are protected and you will be able to see what your future holds. A qualified Maryland family law attorney, such as one in my practice, can draft a comprehensive contract that makes sure your rights and interests will be protected if anything goes wrong. Create a durable and solid estate plan. You need to document your wishes for end-of-life decisions and other issues that will impact your family , and continue to review and modify them over the years as situations change. Consider obtaining a domestic partnership license. Maryland has created specific laws governing domestic partnership. A formal, legally recognized contract can protect you and your partner if you ever come to legal blows. Protect your assets. If you have assets that you want to ensure are fairly distributed in the event of your death or separation, it’s best you insert them into an existing prenuptial or postnuptial agreement. Talk to a local lawyer. There are many rights and obligations that individuals in common law marriages — both victim and oppressor — are not aware of. A local marriage attorney will be familiar with how the law is applied in Maryland.