Common Law and Same Sex Marriage
Background of Common Law Marriage.
Oklahoma continues to recognize common law marriage. According to the Oklahoma Supreme Court, a common law marriage is formed when parties with capacity have a meeting of the minds that they are then actually married. "Capacity" just means parties that have the ability to form a valid marriage. Capacity used to mean a single person over the age of consent could marry a member of the opposite sex. To determine if there has been a "meeting of the minds" the court will look at the actions of the parties — did they live together, do they have children, do they wear wedding bands, did they file taxes jointly, do they own property as a married couple, do their friends think the parties are married, etc. Meeting of the minds is just a way of saying the parties formed an agreement. Sometimes, the parties actions (like filing joint taxes) will make it appear there is a common law marriage even when the moment of the agreement is less than clear.
A common law marriage is a valid marriage just like any other marriage. A common law marriage, even though it is formed without a ceremony by an agreement, once formed, cannot be terminated by a simple agreement. Even if the parties agree that the they are no longer married — they are still married. Just like every other marriage, a common law marriage exists until death of one of the parties or until a court of competent jurisdiction grants a divorce.
Background of Same Sex Marriage.
In the fall of 2014, at the conclusion of a Tulsa County lawsuit, Oklahoma began to recognize marriages between same sex couples. In allowing same sex couples to marry, Oklahoma expanded the "capacity to marry." Capacity to marry now includes the right for gay men and lesbian women to be married to one another.
When Oklahoma began recognizing same sex marriages, licenses were issued and ceremonies were immediately conducted across the state.
Two Concepts Combine.
Once Oklahoma had both common law marriage and same sex marriage, if a same sex couple had a present agreement that they were currently married (as opposed to an agreement to get married at some point in the future) then at that moment they formed a common law same sex marriage.
Very few states have both common law marriage and same sex marriage. I am unaware of any cases that have litigated this issue, but the impact on inheritance and the break up of a relationship could be significant. Truth is, the citizens of Oklahoma, though they may not understand the technical details, expect that common law marriage exits. Even to this day, millions of dollars continue to be at stake over questions of common law marriage.
It is important for everyone to be mindful that the changing landscape of the law will have some unforeseen consequences. People often form a common law marriage by accident for a medical insurance benefit or a tax benefit. Now the universe of people that can do that has expanded to include same sex couples.