Family Law

Important Changes in the Law During the 20th Century: The Abolition of Common Law Marriage


by Henry Baskin

Two 1999 news stories highlighted the fact that one of the most important changes in Michigan family law jurisprudence during the 20th Century was the abolition of common law marriage. In one case, a ‘‘common law husband’’ was denied benefits after his "wife’s" death. In a second case, a man was denied visitation to children he had raised since birth.

In the first case, a 25-year-old mother of four children entered a hospital for minor surgery. Several hours later she died, reportedly from a heart attack caused by an improper anesthetic injection.1 She was survived by her ‘‘common law husband’’ and the children. Unfortunately, in addition to the devastating loss suffered by the ‘‘husband,’’ under Michigan law he had no right to compensation for this terrible loss, nor could he recover any sort of benefits or aid that normally might be available to surviving spouses. Why is he different than the ‘‘normal’’ surviving spouse? He and his ‘‘wife’’ apparently never had their marriage solemnized, and Michigan abolished common law marriage, effective January 1, 1957.

The stated public policy reason for abolishing this type of marriage was to strengthen Michigan’s policy favoring marriage (Van v Zahorik, 460 Mich 320; 597 NW2d 15 (1999)). The effects of this legislative desire to somehow strengthen the bonds of matrimony by requiring a marriage license and solemnization have been, and continue to be, widespread.

When the Michigan Legislature enacted MCL 551.2, common law marriages entered into on or after January 1, 1957 were no longer valid. The effect was that in order to be married in Michigan after that date, couples needed to obtain a marriage license and have the marriage solemnized by an authorized person. Failure to follow these technical requirements had far reaching implications.

Some of the more obvious implications concern distribution of property upon a breakdown in the relationship or upon death of one of the parties in the relationship. Less obvious implications surround the evidentiary privilege awarded to prevent the compelling of testimony between a husband and wife, the illegitimation of Michigan children, the loss of dependent spouse health care and spousal state and government aid.

In abrogating common law marriage, the Legislature established the policy that Michigan would no longer sanction the behavior of two individuals who engage in a ‘‘meretricious’’ or ‘‘illicit’’ relationship (Van v Zahorik, supra, Carnes v Shelton, 109 Mich App 204; 311 NW2d 747 (1981)). Meretricious is defined in Blacks Law Dictionary, 5th Edition as:

‘‘Of the nature of unlawful sexual connection. The term is descriptive of the relation sustained by persons who contract a marriage that is void by reason of legal incapacity.’’

The definition of meretricious, together with the abolition of common law marriage, provokes some serious questions regarding the reasons, or lack thereof, behind a requirement that a marriage be entered into only after obtaining a license and a solemnization ceremony occurs. First, prior to 1957, in Michigan and in those states that do allow common law marriage, the establishment of such a marriage required an intent, by both parties, to be married and be known to the public as husband and wife.2 Further, in Michigan, a party was required to prove the existence of a common law marriage by clear and convincing evidence (In re Leonard Estate, 45 Mich App 679; 207 NW2d 166 (1973)).

Why, then, should a relationship that possesses all of the elements of a solemnized marriage be denied merely because the parties choose not to speak their commitment to a third party authorized to solemnize the union? An even more important question is, why should a spouse who has committed himself or herself to a relationship, in the same manner as a couple whose marriage has been solemnized, be denied the benefit of marriage because the couple did not have the relationship solemnized? There is no obvious answer other than the stated public policy of preservation of the sanctity of marriage.

At what price, however, has the Legislature placed on upholding the sanctity of marriage? One example that the price may be too high is the story of the mother of four and her surviving ‘‘husband’’ at the beginning of this article. Clearly, public policy could not favor depriving him compensation for his suffering merely because he and his ‘‘wife’’ did not have a five-minute ceremony before an authorized individual.3

Another equally tragic example is seen in the case of Van v Zahorik, supra. In that case, the plaintiff, Scott Van, had a longstanding relationship with Mary Zahorik. During the course of their relationship, two minor children were conceived. Mr. Van believed he was the father of the children, was told he was the father by the children’s mother, and was named as the children’s father on their birth certificates. Subsequent testing proved that Mr. Van was not the father and that two other men were the biological fathers of the children.

Mr. Van sought visitation under an equitable parent doctrine. The court refused to allow Mr. Van any rights regarding the children, even though he was willing and able to contribute to their support.4 In fact, the court never even considered application of the statutory factors set forth in MCL 722.23, designed to determine the ‘‘best interests of the children.’’ Instead, the court held that because the parties were not married, because the Legislature had abolished common law marriage, and because there was no other avenue in the statutes for visitation by third parties that would be satisfied in this case, Mr. Van could not see the children.

The court even recognized the problems inherent with the abrogation of common law marriage when it cited the Court of Appeals opinion from the Illinois Supreme Court in Hewitt v Hewitt, 77 Ill 2d 49; 304 NE2d 1204 (1979). It stated:

‘‘Of substantially greater importance than the rights of the immediate parties is the impact of such recognition upon our society and the institution of marriage. Will the fact that legal rights closely resembling those arising from conventional marriages can be acquired by those who deliberately choose to enter into what have heretofore been commonly referred to as ‘illicit’ or ‘meretricious’ relationships encourage formation of such relationships and weaken marriage as the foundation of our family-based society? In the event of death shall the survivor have the status of a surviving spouse for purposes of inheritance, wrongful death actions, workmen’s compensation, etc.? And still more importantly: what of the children born of such relationships? What are their support and inheritance rights and by what standards are custody questions resolved? What of the psychological effects upon them of that type of environment? Does not the recognition of legally enforceable property and custody rights emanating from non-marital cohabitation in practical effect equate with the legalization of common law marriage....’’

As a result, the desire to protect the sanctity of marriage in Van had the effect of depriving two young children the opportunity to develop a relationship with the only father they had ever known, someone who apparently wanted to develop that relationship. The result hardly seemed consistent with the public policy favoring family. In fact, many of the problems the Illinois court listed as potentially arising from recognition of nonmarital relationships were created by the abolition of common law marriage.

Circumstances like those seen in Van and those of the example story at the beginning of this article suggest that Michigan’s stated public policy of protecting its citizens is lost when it comes to common law marriage. Nonetheless, the current state of the law does not recognize such marriages, and accordingly, parties need to be aware that a marriage license is more than a piece of paper. It entitles couples to a whole host of rights not afforded to those who choose to consent to marriage without involvement from the state.

An interesting ending to the common law story is that MCL 551.271 provides in pertinent part that marriages ‘‘solemnized’’ in other states are valid and are to be recognized in Michigan. This statute has been interpreted to include the recognition of common law marriages in Michigan when such marriages have been legally entered into in a jurisdiction that does allow common law marriages (In re Brack Estate, 121 Mich App 585; 326 NW2d 432 (1982)).

Peculiar in the court’s recognition of these common law marriages entered into in other jurisdictions is the longstanding Michigan rule that while Michigan will give full faith and credit to the laws of other jurisdictions, it will not do so when the application of that law would violate Michigan public policy. See, Cantor v Cantor, 87 Mich App 485; 274 NW2d 825 (1978); MCL 691.1154, which provides that judgments of other states need not be recognized if they are repugnant to the public policy of this state.

Nonetheless, the same courts and Legislature of Michigan that have abolished common law marriage, finding it detrimental to the stated public policy of the state, do not find it so repugnant to public policy as to refuse to recognize common law marriages validly entered into in other states.5 The ironic result of MCL 551.271 is that noncitizens of Michigan who engage in these ‘‘illicit’’ and ‘‘meretricious’’ relationships have greater legal rights than those persons who have been Michigan citizens their entire lives.

While many arguments can be made to repeal the abolition of common law marriage, the fact is that MCL 551.2 remains the law of this state. As a result, persons who, for whatever reason, choose not to solemnize their marriages will be deprived of those rights afforded those persons who do travel down a more traditional road.

Footnotes

1. Associated Press reports on December 16, 1999.

2. Currently, Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma, Pennsylvania, Texas, and the District of Columbia recognize common law marriages contracted within their borders.

3. The author is assuming that the parties did not enter into a common law marriage in a state that recognizes same.

4. The result, therefore, is particularly egregious and obviously unfair to the children.

5. The Michigan Legislature is capable and aware of its authority to refuse to recognize marriages entered into in other states that it does find repugnant to public policy. Consider MCL 551.772, which provides that same sex marriages will not be recognized in Michigan, even if validly contracted according to the laws of another jurisdiction.



Henry Baskin
Henry Baskin is a member of the Michigan Judicial Tenure Commission, a former commissioner of the State Bar of Michigan, and a former co-chair of the State Bar’s Judicial Qualifications Committee. He is a recent recipient of the Lifetime Achievement Award of the Family Law Section of the State Bar. He serves as commissioner of the Trial Court Assessment Commission for the state of Michigan and was chairperson of Governor Engler’s Domestic Violence Task Force.


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