How long must parties live together to be married by common law? If you answered “seven,” you join most in a common misperception. The proper answer is, “as long as it takes to exchange vows.” The typical marriage begins with a trip to the court house to obtain a marriage license, but not all marriages start this way. In Pennsylvania, marriage is a civil contract which may be created by statute or by common law. While common law marriages are generally disfavored in Pennsylvania, they are still permitted.
Since neither a formal license nor ceremony before an official is required for a marriage to take place, how can you prove its existence? The general rule is that common law marriage can be created only by an exchange of words in present tense, or verba de prasenti, spoken with specific purpose that legal relationship of husband and wife be created. The parties must be a man and a woman capable of entering into a contract. Therefore, if one or both of the parties is incompetent at the time of marriage, for example, due to intoxication or insanity, the marriage is void. There has also been caselaw stating that the court will consider the gender that a person was at birth, and not after a sex-change operation, in determining whether parties may marry.
The crucial element for purposes of determining whether there is a common law marriage, is present intent of parties to form a marriage contract; however, the marriage does not need to follow a particular form or to use specific words. Furthermore, Pennsylvania courts will recognize a rebuttable presumption of marriage, based on parties’ constant cohabitation and reputation of being married, but only when parties are not available to testify about whether there has been the requisite exchange of words.
Therefore, under Pennsylvania law, a rebuttable presumption of marriage may arise, where two elements can be shown: (1) constant cohabitation; and (2) a reputation of marriage, which is not partial or divided but is broad and general.
However, when parties are available to testify and the rebuttable presumption does not arise, the burden rests on the party claiming a common law marriage (often for purposes of claiming benefits upon the death of a spouse) to produce clear and convincing evidence of the exchange of words. This burden of proof is heavy, and when an attempt is made to establish a marriage without the usual formalities, the claim will be reviewed by the court with great scrutiny.
— Denise Ciampitti