Westmoreland County, Pennsylvania officials recently made a shocking discovery: hundreds of weddings performed by a district judge between 1975 and 1989 were never registered. No one knows what happened to the marriage licenses that the couples – and judge – admittedly signed. But the effect of the failure to register those marriage licenses in Pennsylvania is drastic. The couples are not legally married.

The one saving grace for the couples who married, but whose marriage licenses were not properly registered with the state, is that before January 1, 2005, Pennsylvania allowed couples to enter into a common law marriage. 23 PA. Stat. Annot. Sec. 1103. Pennsylvnia law provides that a common-law marriage is established if, before January 1, 2005, a man and woman exchanged words that indicated that they intended to be married at that present time and they also held themselves out to the community as married (e.g. by introducing themselves to others as husband and wife, by filing joint income tax returns claiming themselves to be married, and other similar actions of “holding out.”). Because of the existence of common law marriage, the couples who were married, but whose licenses were not filed shouldn’t have to worry about whether or not they are now “living without benefit of marriage,” because, although they didn’t know it at the time, they were common law married by (1) considering themselves a married couple; (2) being of sufficient age and mental capacity to enter into a valid marriage; and (3) by holding themselves out to others in the community (including their children as illustrated by the following video) as husband and wife.

But there has been a movement in the past 50 years to do away with common law marriage – including in Kansas as recently as 2010. The rationale for the abolition of common law marriage is straight-forward: what constitutes a common law marriage is widely misunderstood by both the public and many lawyers and that lack of understanding adds uncertainty to an area of the law that should be certain. For example, many people mistakenly believe that they become common law married by living together for a certain amount of time (commonly thought of as “seven year.”) But common law marriage is not defined in that way. In fact, in Kansas and nearly every other state that recognizes the doctrine of common law marriage, “living together” is not one of the requirements for entry into a valid common law marriage. What is required in Kansas is the same three elements that Pennsylvania previously recognized: (1) capacity to marry; (2) a present intent to be married; and (3) holding each other out as husband and wife.

Another reason that proponents of the abolition of common law marriage often cite is the fact that whether a couple was truly married at common law doesn’t usually arise until either one partner isn’t alive to corroborate –or contest – the alleged agreement of marriage, or the couple doesn’t want to be together any longer, doesn’t want “their” property divided up with the estranged partner,  and who see denial of – or assertion of – a common law marriage as a way to avoid the courts from determining that property is “marital property” which must be divided between them.

In 2010, the Kansas Judicial Council reviewed proposals to abolish common law marriage in the State of Kansas and issued a report finding that despite the problems inherent in the doctrine of common law marriage, it remains an important part of the law in 21st century America. The Council found that:

studies show that it is very difficult to keep the general public informed about such changes in law.  For example, despite the fact that common law marriage was abolished in Great Britain in 1753 by Lord Hardwicke’s Act, a survey conducted by British Social Attitudes in 2001 reported that 56% of respondents incorrectly believed in the “myth of common law marriage” and that unmarried people living together have the same rights and responsibilities to each other as do those in traditional marriage.

The committee was also concerned that eliminating common law marriage could mean litigating each break-up with the only apparent remedy for couples based in case law – which is often just as misunderstood as is common law marriage itself.

And finally, the committee believed that abolishing common law marriage would have significant negative effects on the populations who are most benefited by it : women, the poor and economically disadvantaged, minorities, and children. See Thomas, J., “Pitfalls and Promises: Cohabitation, Marriage, and Domestic Partnerships,” 22 J.AAML 151 (2009).

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But more relevant to the current story, common law marriage provides a “safety” against human error of failing to register a marriage license after the ceremony. We can only hope that the couples effected by the recent Pennsylvania court discovery obtain competent legal advice about their status, rather than assuming that they are not validly married because their license isn’t on file – thanks to the now abolished Pennsylvania recognition of common law marriage. And it’s one of the many reasons why, whenever there’s question about legal rights, you should always contact a qualified family lawyer to find out what rights you really have, rather than merely relying on the fears instilled by media reports.