Like a bad joke, if you ask five people to define “common law marriage,” you will probably get ten answers. Few people, including most lawyers, really understand the concept, and recent court decisions and legislation have both muddied the water and, finally, created some clarity.

Before January 1, 2005, Pennsylvania courts acknowledged that the state had long recognized the doctrine of common law marriage.  If satisfactory proof was received in litigation between them that a man and woman had previously declared in the present tense that they considered themselves married, the court was likely to declare them married.

The litigation between them was usually in the area of family law, where one was seeking support or a property division from the other within the context of a divorce.  There never was any such thing as common law divorce in Pennsylvania; rather, if two people were found to be in a common law marriage, they had to go through the same divorce procedure as a couple who had been formally married.

Another area of litigation where the question of common law marriage was raised followed the death of one of the parties.  There, because the Dead Man’s Rule precluded proof of the utterance of the magic language referred to above, proof had to come in via other ways.  Examples would be holding themselves out to others as married, joint ownership (as tenants by the entireties) of assets and indebtedness, filing joint tax returns, celebrating anniversaries, etc.  Note that there never was a rule saying people were common law married by virtue of living together a certain number of years, such as seven.  This issue would come up in inheritance cases, the naming of beneficiaries, and death personal injury or workers compensation actions.

Then, in PNC Bank Corp. v. Workers’ Compensation Appeal Board (Stamos), 831 A.2d 1269 (2003) the Commonwealth Court declared – in a workers’ compensation case – that the doctrine of common law marriage was prospectively abolished in Pennsylvania.  The legislature responded, passing a bill that specifically abolished common law marriages as of January 1, 2005.  Marriages allegedly entered into before that date are “grandfathered” in, subject, of course, to proof.

Couples who begin living together on or after January 1, 2005 may incorrectly believe they have a common law marriage, with significant ramifications.  For instance, any asset – such as a house – in the name of one party is not available to the other, even if the other contributed to its acquisition or upkeep.  There are also no inheritance rights unless the person is named as a beneficiary of a will, I.R.A., retirement plan, or life insurance policy, without use of the word “husband” or “wife.”  Nor can the partner get social security benefits based upon the other’s earnings.

The public may not know of this statutory change to the long-standing Pennsylvania common law, but lawyers certainly should.  The moral, according to the Pennsylvania legislature, is: get married!

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Mr. Grunfeld is a sole practitioner and a member of Brandeis Law Society.