Determination of a marriage date: Retroactive recognition of common-law unions between persons of the same sex after Obergefell – JURIST – Commentary


JURIST Guest Columnist Julie R. Colton of the University of Pittsburgh School of Law explains how the new legalization of same-sex marriage may raise more questions than it answers, especially when it comes to the marriage of do…

Although the Supreme Court of the United States has ruled in Oberefell As same-sex marriage bans are unconstitutional in 2015, significant issues surrounding same-sex marriage remain unresolved. For example, the Supreme Court had to take into account that lesbian married parents did not enjoy the same recognition of parentage as opposite-sex married parents in Arkansas. A federal appeals court upheld a North Carolina law that would allow magistrates to refuse to perform same-sex marriages.

As marriage rights continue to settle, their effects on same-sex divorce are beginning to surface. Determining the date of marriage is a crucial part of divorce. The date of marriage helps to determine the marital patrimony to be divided and is taken into account when determining support payments. A wedding date can help determine parentage, which could be a game-changer in custody proceedings. The determination of a marriage date is rarely contested because a marriage certificate usually exists and the common-law marriage was terminated in 2005. But in a same-sex marriage, what is the date of the marriage?

Is this the day the Obergefell opinion was issued? Is it the day it was legalized in the couple’s home state? Is it the day the couple got married, even though it was before same-sex marriage was legal? Is this the date on which a civil union was concluded? What about de facto marriage? Could same-sex couples have been de facto married in a state where same-sex marriage was banned while the ban was in effect?

In Pennsylvania, the Superior Court considered this question in In re: Estate of Stephen Carter. Mr. Carter died in 2013 and his partner, Mr. Hunter, requested a marriage declaration in 2016 as part of the estate processing. Same-sex marriage didn’t become legal in Pennsylvania until 2014, when common-law marriage had been banned since 2005. How did Mr. Hunter ask the court to determine that he and Mr. Carter were married? He wanted the court to recognize his relationship as a same-sex common-law relationship.

First, let’s dispel a myth: Common-law marriage is not established by living together for seven years. Every state that recognizes de facto marriage has a definition of de facto marriage that must be followed. In Pennsylvania, there are two tests: a test to find out if both parties are alive, and a second test in the event that one of the potential spouses has died. There is a test for divorce or marriage cases where both parties are alive and therefore available to testify. There is a second test in estate matters where the only party available to confirm or deny the allegation of a common-law marriage is not available due to the death. In the Carter in that case, the court applied the test of succession when there is a rebuttable presumption of a common-law relationship if the evidence shows cohabitation and the reputation of the marriage. If this was a divorce case where both parties were available to testify, Mr. Carter and Mr. Hunter would have had to prove an exchange of marriage vows in the present tense.

Mr. Hunter was able to meet all cohabitation and reputation requirements to prove that the parties had lived as spouses. That leaves one final hurdle, the marriage was outlawed as the men exchanged rings and it was not legalized until after Mr Carter’s unfortunate death. The Pennsylvania and federal bans on same-sex marriage had both been declared unconstitutional. When a law is found to be constitutional, it is as if it had never existed, unless the court which determines the unconstitutionality decides otherwise. For example, the Pennsylvania Superior Court determined that Mr. Carter and Mr. Hunter were married at the time of Mr. Hunter’s death.

Even post-mortem marriage determinations are important, as evidenced by the many people involved in the Obergefell case.

In addition, the recognition of de facto marriage in divorces will increase the period of time during which the marital heritage has accumulated. It can also increase the number of same-sex marriages.

Reconciliation of common-law marriage also affects federal benefits. A couple must be married for at least ten years to be entitled to social security spouse’s allowance after divorce. It also affects the income tax declaration status and the percentage of inheritance tax assessed at the time of death. A common-law marriage can also play a role in the outcome of personal injury cases, opening up more cases to a loss of consortium claim.

Common-law marriage also appears in the field of labor law. Is the partner a spouse when the pension is paid? Is the person a spouse for the purposes of the Workers’ Compensation Death Benefit?

The recognition of common law same-sex marriage also benefits children. It will protect the inheritance rights of children of same-sex couples. It will protect parent-child relationships for children of same-sex couples whose parents use the court system for custody. It may also prevent third parties from claiming parentage based on legal fictions of parentage in the state of Pennsylvania.

If the ban on same-sex marriage is unconstitutional and pre-2005 same-sex marriage exists in Pennsylvania, how far back do we have to look? When should employers be able to breathe easy and be free from lawsuits for spousal benefits? How long should the government be exempt from requests to adjust income tax or inheritance tax returns? Does the limitation period run from the date of the incident? Or does it run from the date people knew or should have known they were legally married?

Can a civil union be considered proof of a de facto marriage? Again, in Pennsylvania, the Superior Court allowed a civil union to be treated as a marriage when the state in which the civil union was entered into expressly stated that the purpose of civil unions was to provide rights identical to those enjoyed by opposite-sex couples. through marriage. Since Vermont was trying to create marriage equality, Pennsylvania recognizes Vermont civil unions as marriages. This can provide some clarity on the date of the wedding if the couple had previously united in a civil union. If the civil union was not legally converted to marriage, could it be a common-law relationship? Is civil union a marriage? Did he grant the same rights? It is clear that the PA allows some civil unions to be considered marriages for the purposes of divorce, but has left the door open to challenge this issue when the state of the ceremony has different laws.

The intersection of same-sex marriage and cohabitation will have many benefits for couples. It will also create difficult situations.

Julie R. Colton is a partner at Voker & Colton, LLC, where she focuses her practice in family law, as well as an adjunct faculty member at the University of Pittsburgh where she teaches family law.

Suggest a quote: Julie R. Colton, Determination of a marriage date: Retroactive recognition of same-sex common-law unions after ObergefellJURIST – Academic Commentary, September 18, 2017,

This article was prepared for publication by Sean Merritt, Associate Editor of JURIST Commentary. Please direct your questions to [email protected]

The opinions expressed in JURIST comments are the sole responsibility of the author and do not necessarily reflect the opinions of JURIST’s editors, staff, donors or the University of Pittsburgh.


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