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Common law marriage is no substitute for marriage


© St. Petersburg Times, published June 3, 2001

Leave it to Utah to put a new twist on the shotgun wedding. Rather than getting the reluctant groom to commit at the point of a gun, Utah merely issues a decree of common law marriage. Men no longer have to utter the phrase "I do," the state does it for them.

Leave it to Utah to put a new twist on the shotgun wedding. Rather than getting the reluctant groom to commit at the point of a gun, Utah merely issues a decree of common law marriage. Men no longer have to utter the phrase "I do," the state does it for them.

That's how it happened for polygamous-bachelor Tom Green, who lives on a dirt patch in a couple of beaten-up mobile homes. Green is not legally married to any of the five "wives" with whom he co-habitates, but he was nonetheless charged with four felony counts of bigamy.

Juab County prosecutor David Leavitt, a descendant of polygamous ancestors himself, successfully convinced a jury that Green's relationship with his most senior live-in "wife" fit the state's common law marriage definition. After that, it didn't take much for Leavitt to show that Green was living with four other women and holding them out as wives as well -- a la four convictions for bigamy.

Green faces up to 25 years in prison for his living arrangement and a charge of failing to pay child support. Sentencing is scheduled for June 27.

No matter how distasteful polygamy may be to our monogamous sensibilities, there is something wrong with a state going to such elaborate lengths to establish a marriage that hasn't been formalized by the parties.

Common law marriage invites the state to impose a legal relationship where none existed. In Green's case, this led to state persecution. In most other cases, those scorned by love use these laws to demand "marital" assets.

There may have once been a valid justification for recognizing common law marriage. During the covered wagon days, when people were often many days travel from the nearest place of public record or minister, common law marriage was a pragmatic recognition of a pioneer's reality. It helped to protect rights of property and inheritance. But that excuse has long since withered. There is no longer a legitimate reason for the laws' existence.

While the issue of common law marriage comes up rarely, when it does it's inevitably messy. Remember when Sandra Jennings sued actor William Hurt for a common law divorce after their live-in relationship ended in 1984? After a protracted and highly visible court battle, she lost, and with good reason: You shouldn't be able to divorce someone you never married.

Human relationships, especially those between men and women, are often ambiguous. Common law marriage draws courts into an impossible morass of second-guessing what men and women intended by living together. How are judges going to be able to do what shelves full of relationship advice books by psychiatrists and Ph.D's cannot? In our Mars-Venus world we should be sticking with what we know is true: Getting married is a terrific indicator of one's intention to be married. It's a bright line test with no danger of being misunderstood by the state or one's partner.

More than a dozen states, including Florida, have come to this realization and abandoned their common law marriage statutes. Today, such marriages are only recognized in 10 states and the District of Columbia.

Ironically, Utah had resisted passing a common law marriage statute when it was popular, probably because the legislature thought it could be used as a back-door way of reestablishing polygamy. But in 1987, Utah became the only state in the union to institute common law marriage during the 20th century. The legislature believed it would save hundreds of thousands of welfare dollars by closing a loophole for cheats who claimed to be destitute single mothers but were living with a man. In fact, the loophole never existed since welfare rules already excluded benefits where there was an adult male wage-earner in the household.

Beyond over-zealous prosecutors, the only voice for a continuation of common law marriage is the feminist legal community. In a 1996 law review article, law professor Cynthia Grant Bowman made the case that women, particularly those who are poor and of color, should be protected by common law marriage statutes. She said these women come from cultures that are less likely to formally marry yet are in the greatest need of their partner's Social Security survivor benefits and worker's compensation death benefits.

While she makes a valid point, I don't believe it's sufficient to throw the status of thousands of co-habitating couples into doubt. Couples who live together are purposely avoiding the legal rights and responsibilities of marriage. They are telling the government their relationship is none of its business. Tom Green thought that is what he was doing when he assiduously avoided being legally married to the women he lived with. Too bad for him Utah's government is famous for sticking its nose where it hasn't been invited.

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